Mrs Fixsler v Manchester University NHS Foundation Trust

JurisdictionEngland & Wales
JudgeLord Justice Baker,Lady Justice Carr,Lady Justice Elisabeth Laing
Judgment Date09 July 2021
Neutral Citation[2021] EWCA Civ 1018
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B4/2021/1044

In the Matter of the Senior Courts Act 1981

And in the Matter of the Children Act 1989

And in the Matter of Alta Fixsler

Between:
Mrs Fixsler (1)
Mr Fixsler (2)
Appellants
and
Manchester University NHS Foundation Trust (1)
Alta Fixsler (2) (by her children's guardian)
Respondents

[2021] EWCA Civ 1018

Before:

Lord Justice Baker

Lady Justice Carr

and

Lady Justice Elisabeth Laing

Case No: B4/2021/1044

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

The Hon Mr Justice MacDonald

MA20P02742

Royal Courts of Justice

Strand, London, WC2A 2LL

Stephen Simblet QC and Stephen Lue (instructed by Harris da Silva) for the Appellants

Helen Mulholland (instructed by Weightmans LLP) for the First Respondent

Fiona Holloran (instructed by McAlister Family Law) for the Second Respondent

Hearing date: 23 June 2021

Approved Judgment

Lord Justice Baker
1

These proceedings are about a little girl, Alta, now aged two and a half, who suffered catastrophic brain injuries at birth. Tragically, she is unlikely to live for longer than the next two years or so. The clinicians treating her have concluded that it would be in her best interests for the life-sustaining treatment on which she depends to be withdrawn. The unanimous view of the medical experts who have given evidence hitherto is that she is suffering consistent pain. Her parents disagree. They do not want the treatment to be withdrawn. They do not accept that she is in consistent pain. Furthermore, they are devout Hasidic Jews for whom the sanctity of life is a fundamental tenet. They propose that Alta be transported to Israel where her treatment can continue in hospital and where, when she dies, as they accept she will in her childhood years, she can be buried in accordance with their religious beliefs and practices. The treating clinicians here in England say that the journey to Israel would cause her to suffer further pain for no medical benefit and is not in her best interests.

2

The NHS Trust responsible for the hospital where Alta is being treated applied to the Family Division for orders authorising the withdrawal of life-sustaining treatment. On 28 May 2021, MacDonald J made a declaration that it was not in her best interests for such treatment, including mechanical ventilation, to be continued and that she should be moved to a palliative care pathway, and ordered that the doctors be at liberty to treat her in accordance with their clinical discretion. The parents wish to appeal against that decision.

Background

3

Alta's parents are Hasidic Jews and Israeli citizens. They moved to the UK in 2014. They have an older child now aged 8. Alta was born on 23 December 2018, eight weeks premature. During her birth, she suffered a severe hypoxic ischaemic brain injury. It is accepted that this will inevitably result in early death. Estimates of her future life expectancy range from six months to two years.

4

Alta is an inpatient at a hospital run by the Manchester University NHS Foundation Trust. The details of her medical history and treatment are set out in MacDonald J's judgment. In summary, much of her brain structure has been lost. She has extensive multicystic encephalomalacia, although elements of her cerebral cortex remain, together with a limited amount of her thalami and a small area of her cerebellum. There is also damage to her brain stem. At paragraph 9 of his judgment, the judge summarised her current symptoms as follows:

“i) An inability to maintain an open airway and adequate ventilation to sustain life for any significant period of time without support.

ii) An inability to protect her airway.

iii) An inability to maintain core body temperature.

iv) An inability to blink and protect the corneal surface of the eyes, optic atrophy, an inability to perceive light and darkness and repeated ulceration of the corneas.

v) An inability to perceive sound due to injury to the auditory cortex.

vi) Sustained severe spasticity (stiffness from constant contraction of muscles) of the whole body which will increasingly lead to more permanent joint contractures (joints stuck in same position as they are always stiffly held that way by the damaged brain) and scoliosis (a bent spine).

vii) Spinal clonus (contracting jerks of the body triggered by the spine that is not modulated by a brain).

viii) Severe spasticity (requiring medication, positioning for comfort and prevention of contractures, which have already developed in some of the joints of her hands).

ix) An inability to swallow.

x) Seizures.

xi) Global development delay.”

As a result, she is mechanically ventilated via a tracheostomy and fed via a tube.

5

There is a medical consensus that Alta has no conscious awareness, although her parents contend that she responds to their touch. A central feature of the case before the judge was whether she was able to experience pain.

6

Alta has been an inpatient in the hospital's paediatric intensive care unit since birth. After prolonged discussions about treatment options, the clinicians concluded that life-sustaining treatment should be withdrawn. The parents disagreed and requested a second opinion. As a result, the Trust obtained independent reports from Dr Martin Samuels, a consultant respiratory paediatrician at Great Ormond Street Hospital, and Dr Anthony Hart, a consultant paediatric neurologist at Sheffield Teaching Hospital. Both doctors considered the medical records and examined the child, and Dr Hart also met the parents. Each doctor prepared a report agreeing with the clinicians' diagnosis and with the proposal to withdraw life-sustaining treatment and transfer Alta to palliative care. In September 2020, a meeting took place between the clinicians and the parents at which the second opinions were discussed. The parents continued to oppose the hospital's plan.

7

On 18 December 2020, the Trust applied to the High Court seeking (1) a declaration under its inherent jurisdiction that it was not in Alta's best interests for the treatment to be continued and that it was in her best interests for a palliative care regime to be implemented, and (2) leave to apply for a specific issue order under s.8 of the Children Act determining that such treatment should cease to be provided and a palliative care regime implemented. In support of the application, the trust filed statements from Dr A and Dr B, Alta's treating clinicians, which included a number of attachments, including the reports from Dr Hart and Dr Samuels.

8

At a case management hearing on 29 January 2021, a children's guardian was appointed to represent Alta, and she was given permission to instruct a medical expert “in a relevant discipline” to advise on Alta's diagnosis, prognosis and best interests. The parents were given permission to obtain a report from a paediatric respiratory consultant as to whether Alta was suitable for long term ventilation at home and on the practicalities of international travel to an Israeli hospital. The parents' representatives did not seek a report from a neurologist but were given permission to put questions to Dr Hart, Dr Samuels, and to the hospital paediatric intensivist, Dr B. Questions were duly put by the solicitors acting for the parents and for the guardian to the three doctors, each of whom responded in a further report, or, in Dr B's case, a second statement in the proceedings. The parents' solicitor filed statements from the father and from Rabbi Yisroel Goldberg, who had supported the parents since Alta's birth, provided religious advice and guidance, and had accompanied them to many meetings with the Trust. The parents' solicitor also obtained and filed a report from Dr Rob Ross Russell, a consultant paediatrician at Addenbrooke's Hospital in Cambridge. (Technically this instruction was outside the permission granted by the judge, but no party raised any objection.) He also concluded that it was not in Alta's best interests to continue with life-sustaining intervention. In the event, the guardian elected not to obtain a further expert opinion but she filed an extensive report supporting the Trust's application.

9

The hearing took place before MacDonald J on 19 to 21 May 2021. The judge heard oral evidence from Dr Samuels, Dr Hart, Dr Ross Russell, Dr A, Dr B, Alta's parents, Rabbi Goldberg, and the guardian. Judgment was reserved and handed down on 28 May when the order was made authorising the withdrawal of treatment.

10

On 15 June, the parents, having changed their legal representatives, filed a notice of appeal seeking permission to appeal against the order. On the same day, I directed that the application for permission to appeal be listed for an oral hearing before a full court on 23 June 2021, with appeal to follow if permission was granted, and stayed the order pending determination of the application and, if granted, the appeal. On 18 June, the parents' representatives filed an application to adduce fresh evidence, which I directed should be considered at the start of the hearing of the application.

The Law

11

As McFarlane LJ observed in Yates v Great Ormond Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410, [2018] 4 WLR 5 at para 112:

“As the authorities to which I have already made reference underline time and again, the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view.”

This Court having very recently traversed this ground in Re Pippa Knight [2021] EWCA Civ 362, it might be thought unnecessary to consider the legal principles...

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5 cases
  • An NHS Foundation Trust v M and Others
    • United Kingdom
    • Family Division
    • 1 January 2021
  • Manchester University NHS Foundation Trust v Alta Fixsler (by Her Children's Guardian)
    • United Kingdom
    • Family Division
    • 6 October 2021
    ...Appeal. On 23 June 2021 the Court of Appeal dismissed the parents' appeal (see Fixsler v Manchester University Foundation NHS Trust [2021] EWCA Civ 1018). With respect to this court's findings regarding the burden of pain on Alta, the Court of Appeal held as follows: “[61] Mr Simblet recog......
  • The Newcastle Upon Tyne Hospitals NHS Foundation Trust v H (A Child by his Cafcass Guardian)
    • United Kingdom
    • Court of Protection
    • 4 March 2022
    ...agree with and, of course I am bound by the analysis of Baker LJ in Manchester University NHS Foundation Trust v Fixsler and others [2021] 4 WLR 123 (at paras. 85 and 86): “85. When considering the child's assumed point of view, it is difficult if not impossible to attribute any views, inc......
  • Birmingham Women's and Children's NHS Foundation Trust v J
    • United Kingdom
    • Family Division
    • 24 August 2022
    ...it must be held. No life is to be relinquished easily.” 38 I have revisited the cases of Fixsler v Manchester University NHS Trust [2021] EWCA Civ 1018 and Barts NHS Foundation Trust v Raqeeb & Ors [2019] EWHC 2530 (Fam). I have given a good deal of thought to McDonald J's judgment in Raqe......
  • Request a trial to view additional results

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