Manchester University NHS Foundation Trust v Alta Fixsler (by Her Children's Guardian)
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 06 October 2021 |
| Neutral Citation | [2021] EWHC 2664 (Fam) |
| Docket Number | Case No: MA20P02742 |
| Year | 2021 |
| Court | Family Division |
and
and
[2021] EWHC 2664 (Fam)
THE HONOURABLE Mr Justice MacDonald
Case No: MA20P02742
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
Ms Helen Mulholland (instructed by Weightmans LLP) for the Applicant
Ms Fiona Holloran (instructed by McAllister Family Law) for the First Respondent
Mr Jason Coppel QC and Mr Bruno Quintavalle (instructed by TKD Solicitors) for the Second and Third Respondents
Hearing dates: 1 October 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be at 12 noon on 6 October 2021.
INTRODUCTION
In this matter, I am once again concerned with the welfare of Alta Fixsler. Alta was born on 23 December 2018 and is now 2 years and 9 months old.
The application that is before the court remains that brought by Manchester University NHS Foundation Trust (hereafter ‘the Trust’), represented by Ms Helen Mulholland of counsel. Alta is represented through her Children's Guardian by Ms Fiona Holloran of counsel. Alta's parents, Chaya Fixsler and Abraham Fixsler, are now represented by a third legal team, Mr Jason Coppel of Queen's Counsel and Mr Bruno Quintavalle of counsel appearing on their behalf at this hearing. The parents are Chassidic Practising Jews and Israeli citizens. The father also has US citizenship.
On 18 December 2020, the Trust made an application for a declaration pursuant to the inherent jurisdiction of the High Court that it is not in the best interests of Alta for life-sustaining medical treatment to be continued, and that it is in her best interests for a palliative care regime to be implemented, and for a specific issue order under section 8 of the Children Act 1989 (and leave to seek such an order pursuant to s.10(2)(b) of the Children Act 1989) determining that life-sustaining medical treatment should cease to be provided and a palliative care regime implemented instead. Those applications were supported by the Children's Guardian.
The parents opposed the applications brought by the NHS Trust and instead sought to take Alta to Israel for continued treatment and the exploration of long-term ventilation at home in Israel in due course or, if the court concluded that it was no longer in Alta's best interests for life sustaining treatment to be maintained, for that step to be taken in Israel.
On 28 May 2021, I gave judgment granting the Trust's application for a declaration under the inherent jurisdiction of the High Court and declared that it is not in the best interests of Alta for life-sustaining medical treatment to be continued, and that it is in her best interests for a palliative care regime to be implemented. Following a hearing on 23 June 2021, on 9 July 2021 the Court of Appeal dismissed the parents' appeal against the order of this court. On 14 July 2021 the Court of Appeal refused the parents permission to appeal to the Supreme Court and on 27 July 2021 the Supreme Court refused the parents further application for permission to appeal. On 1 August 2021 the European Court of Human Rights declared the parents' complaint to that court inadmissible, bringing to an end the avenues of appeal available to the parents.
The matter now returns to court in circumstances where a further dispute has arisen between the parties. That issue is the location at which Alta's life support should be withdrawn by way of extubation, although, as is their right, the parents continue to believe that it is fundamentally wrong to withdraw Alta's life-sustaining treatment and that to do so constitutes a grave sin against God. The parents contend however, that if that step must be taken it is a step that should be taken at the family home (although, for reasons I will come to, the property they propose is not, in fact, the family home). The Trust contend that the step should be taken either at the PICU where Alta is being treated or at an identified children's hospice. The Children's Guardian supports the position taken by the Trust. At this hearing I have heard evidence from Dr B, the consultant paediatric intensivist responsible for Alta's care. The parents decided not to give oral evidence but the court has before it detailed statements provided by the father on behalf of both parents.
A mediation took place on 17 September 2021 between the parents and the Trust. That mediation failed to resolve any of the issues that now fall to be determined by the court. Indeed, such is the distance between the parents and the Trust that it was apparent at this hearing that there is now even a dispute as to what occurred on 17 September 2021. This hearing has been arranged so as to avoid the Jewish feast days that occur in September, in order to ensure that the hearing did not take place on a day when Orthodox Jews are prohibited from performing any work or on a day when, whilst not prohibited, Orthodox Jews are expected to avoid work.
BACKGROUND AND EVIDENCE
The detailed background to this tragic case is set out in my first judgment, published as Manchester University NHS Foundation Trust v Fixsler [2021] EWHC 1426 (Fam). This judgment should be read with that one.
As set out in my first judgment in this matter, during her premature birth Alta sustained a severe hypoxic-ischaemic brain injury and was born showing no signs of life. Although she was successfully resuscitated by the medical team, it has never been disputed that Alta continues to exhibit the symptoms of a catastrophic brain injury, which injury will inevitably result in her death. Alta is currently a patient at the Royal Manchester Children's Hospital where she is in receipt of intensive life sustaining treatment, including intubation and mechanical ventilation.
Within the context of that tragic history, having heard detailed and comprehensive expert medical evidence, evidence from Alta's treating clinicians and evidence from the parents and their Rabbi, and applying the legal principles that pertain in this jurisdiction in cases of this nature, I made the following findings of fact based on the evidence before the court:
i) Alta has sustained a catastrophic brain injury in the form of a severe hypoxic-ischaemic brain injury during her premature birth.
ii) Alta has no prospect of recovery or improvement given the severe nature of her brain injury. Alta will remain ventilator dependent and without meaningful awareness of her surroundings.
iii) Alta's brain injury severely limits Alta's life expectancy. Whilst it is possible that Alta could succumb quickly if she develops an infection, on the upper estimates before the court it is possible that Alta may, subject to the continuation of intensive care and in all likelihood an escalation in that level of care, remain alive for two or more years.
iv) Alta consistently exhibits movements that, if she is able to experience pain, will cause her pain, in the form of regular spasms in response to handling during care tasks and in response to medical interventions.
v) Alta remains able to generate a reflex to pain, albeit that she lacks the cerebral structures to derive meaning from this or any understanding of the pain, and exhibits a consistent response to the application of painful stimuli.
vi) On the balance of probabilities, Alta experiences pain and her experience of pain represents a significant burden to Alta.
vii) On the evidence before the court, the pain experienced by Alta can be associated with any of the handling, care giving and treatment she is subjected to and with the physical conditions from which she may suffer.
viii) It is more probable than not that Alta's condition will significantly deteriorate. Alta's symptoms will worsen, and she will accumulate further comorbidities that will increase the burden of pain she is bearing, including worsening dystonia and spasticity with associated pain, hip dislocation and pain, scoliosis, which may be painful, pressure sores, corneal abrasions and ulcers and urinary tract infections.
With respect to the role of Alta's wishes and feelings in the best interests evaluation, in my first judgment I concluded as follows at [95]:
“In undertaking this difficult exercise I am not able, in circumstances where Alta suffered a brain injury that left her with no ability to learn about the world around her before she was able to understand anything of religion and culture into which she was born, to accept the submission that the assessment of Alta's perspective on this matter should start by assuming, without more, that Alta would share the values of her parents, of her brother, and of her wider family and community. I accept that a child's attitude may be, and indeed often is influenced by the views, beliefs and guidance of his or her parents. But the child remains an individual in his or her own right. In some cases, of which Raqeeb was an example, there may be evidence that will allow the court to make an informed judgment as to the extent to which a child shares in their parents' values and the values of their community and factor that into the overall evaluation of best interests. That is not the case here. Alta is not of an age, nor in a condition to have knowledge of and to adopt her parents' values, from which she could extrapolate a position on the complex issues that arise in this case.”
Within the context of the foregoing findings and conclusions, and for the detailed reasons...
To continue reading
Request your trial