Kirklees Council v RE (First Respondent) SE (by his Guardian, Steven Anderson) (Second Respondent) Leeds Teaching Hospital NHS Trust (Third Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moor |
| Judgment Date | 03 October 2014 |
| Neutral Citation | [2014] EWHC 3182 (Fam) |
| Docket Number | Case No: FD14P00733 |
| Court | Family Division |
| Date | 03 October 2014 |
[2014] EWHC 3182 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Moor
Case No: FD14P00733
and
and
Ms Lorraine Cavanagh for the Applicant
Ms Lisa Phillips for the First Respondent
Ms Martha Cover for the Second Respondent
Ms Katie Gollop for the Third Respondent
Hearing date: 19th August 2014
On 19th August 2014, I heard an application by Kirklees Council for various declarations in relation to a young baby boy, SE, who was desperately ill in hospital. In essence, Kirklees applied for a declaration that it was not in SE's interests to receive further life sustaining treatment. By the time the case was heard, the Local Authority applied for a further declaration, namely that it was lawful for his treating clinicians to provide him with palliative care only.
SE had been an inpatient in hospital since he was born prematurely in April 2014. He had multiple medical difficulties. He suffered from chronic lung disease (an over inflated left lung and an under inflated right lung). He had multiple cardiac abnormalities (ventricular septal defect, atrial septal defect and patent ductus arteriosus), right duplex kidney and absent left kidney, Hemi vertebrae, fused ribs and heart failure impacting on his ability to gain weight.
The application was supported by the Third Respondents, Leeds Teaching Hospital NHS Trust. SE had been transferred to the neo-natal unit at one of their hospitals, Leeds General Infirmary. Indeed, I heard oral evidence from two of their consultants, namely Dr Hannah Shore, a consultant neonatologist and Dr Philip Chetcuti, a consultant paediatrician. I also heard oral evidence from a third expert, Dr Martin Ward Platt, who had been instructed jointly by all parties to give an independent further opinion. The experts were all in agreement that the declarations sought were in the best interests of SE as the treatment he had been receiving was very distressing to him and was ultimately futile as there was no chance of recovery and no purpose to the treatment being continued. Dr Ward Platt added that he felt there was an element of it being an " unbearable situation" for SE.
SE's mother, RE, was the First Respondent (hereafter "the Mother"). Although very difficult for her, she had also given instructions to her lawyers to accept the medical opinion. She said that she did not want SE to suffer further. This went to her credit.
SE's father was believed to be SA. He did not play any role in the proceedings and had not responded to notification of the care proceedings previously taken by Kirklees in relation to SE. He was, however, briefly present in the hospital the afternoon after I heard the case.
SE's Guardian, Steven Anderson, quite properly took the view that the matter should be fully explored before such serious declarations were made. His counsel, Ms Martha Cover, tested the evidence fully by cross-examining the doctors. Having done so, the Guardian accepted fully the need for the declarations sought.
I therefore approved an order that declared that it was not in SE's best interests to receive further life sustaining treatment. I also declared that it was lawful and in his interests for the treating clinicians to provide him with palliative care only and, accordingly, the withholding and the withdrawing of life sustaining treatment were lawful and in his best interests, provided always that the measures and treatments adopted were the most compatible with maintaining his comfort and dignity.
It was also recorded that the treatments and/or actions contemplated in Paragraph 8 of the second statement of Dr Shore were permitted under the terms of the declarations I made. Paragraph 8 was in the following terms:-
"We would plan to reduce his respiratory support to enable him to be taken outside of the neonatal unit for walks or even discharged to a hospice for ongoing care. We would continue to feed him. We would continue to provide symptom relief should he become agitated in the form of oromorph, chloral hydrate or buccal midazolam. If he got a chest infection, we would treat him with oral rather than intravenous antibiotics to save him the distress of multiple IV cannulae".
Given the importance of the case, I decided to provide a full judgment that would be made public, albeit fully anonymised to protect SE's identity. Nevertheless, the order had been made on 19th August 2014. The treating clinicians met on the morning of 20th August to discuss the de-escalation of treatment for SE. It was agreed that he would be taken off his Bi-PAP breathing support that afternoon. I am told that he was quite agitated whilst still on the breathing support. The Mother asked for him to be baptised and this happened. In fact, it appears that the Mother and SA left before the baptism took place. I assume they found the situation too distressing.
SE's breathing support was then reduced. His foster carers, the Social Worker, her Team Manager and two nurses were with him. Within a few minutes, he stopped breathing. He was not agitated at all and just slipped away. He died at approximately 5.15 pm on the afternoon of 20 th August 2014.
The relevant history
The Mother was born in 1982. She is therefore 32 years of age. She has a chronic history of alcohol and drug misuse. She has worked as a street sex worker and has a disorganised lifestyle. Her previous child, RC, was adopted in 2009.
It appears that she continued to drink alcohol heavily and take heroin during her pregnancy with SE. SE was born prematurely at approximately 29 weeks gestation in April 2014 at Calderdale Hospital. He was addicted to heroin. As noted above, he had significant abnormalities to his heart, lungs, kidney and spine although the prognosis was initially more positive than it became. In May 2014, he was transferred to the Leeds General Infirmary Neonatal unit.
Care proceedings were instituted on 30 th May 2014. An interim care order was made on 13 th June 2014. The Mother was offered contact but did not take it up. Foster carers (VH and CH) were found, although SE had never been able to live with them. They have, however, been devoted to SE and have attended at the hospital daily for long periods of time.
SE underwent major heart surgery on 11th June 2014. On 27th June 2014, he was taken into intensive care and had to be ventilated for a couple of days. Thereafter, his breathing was supported by hi-flow oxygen.
Regrettably, there was a serious deterioration in his health on 15 th July 2014. He had to be treated with antibiotics and steroids. He had a blood transfusion. He was very unsettled. On 18 th July, he returned to intensive care having acquired an infection. He was ventilated again. The ventilator was removed on 24th July 2014 and he returned to having high flow breathing support. In early August, this was moved to BiPAP ventilation. He had to be given a steroid, dexamethasone and a large dose of sedative to keep him calm.
On 1 st August, Kirklees applied for a declaration as to whether or not life-prolonging medical treatment remained in his best interests. Kirklees considered the prognosis to be very poor. It was submitted that the artificial ventilation that was necessary to keep him alive was both painful and distressing. The medical advice was that it was not in SE's interests to be ventilated again should he suffer a further collapse.
There was a question as to whether or not the Mother had capacity to litigate. This was resolved by the report of a Dr Quinn on 5th August 2014 that confirmed that she did have capacity.
Statements had been obtained from both Dr Shore and Dr Chetcuti. At a directions hearing on 6 th August, I directed a further report from Dr Ward Platt. I listed the matter for final hearing on 19 th August.
The need for the application
First, I consider Kirklees was absolutely correct to make this application. I disagree with section 2.5 of the Royal College of Paediatrics and Child Health Guidelines "Withholding or withdrawing Life Sustaining Treatment in Children" (Second Edition; May 2004) which says:-
" If the local authority achieves a care order, it gains parental responsibility and the power to restrict the natural parents' authority or that of any other person who would normally carry such authority. Parents can appeal to the High Court and to the Court of Appeal."
I agree with counsel for Kirklees that it would be quite wrong for a Local Authority to follow this guidance, regardless of whether or not the Local Authority holds an interim care order or a final care order. If there is parental opposition, parental equivocation or doubt as to parental capacity to decide, an application must be made to the court. In such circumstances, a Guardian will then be appointed. I further take the view that, if there is an interim care order and therefore a Guardian already in place, the Guardian should always be involved before such a serious decision is taken. If the Guardian considers that an application should be made, the Local Authority or the NHS Trust must do so.
The law to be applied
SE's rights under Articles 2 (the right to life), 3 (prevention of inhuman or degrading treatment) and 8 (private and family life) of the European Convention on Human Rights and Fundamental Freedoms 1950 are engaged. He has the right to enjoyment of the best possible standards of health and to facilities for the treatment of illness and rehabilitation of his health. I must consider not only his medical condition but also his emotional, social and familial context. I must be particularly...
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