A NHS Trust v X
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 18 January 2021 |
| Neutral Citation | [2021] EWHC 65 (Fam) |
| Docket Number | Case No: FD20P00690 |
| Court | Family Division |
| Date | 18 January 2021 |
In the matter of X (A Child) (No 2)
[2021] EWHC 65 (Fam)
Sir James Munby
(Sitting as a judge of the High Court)
Case No: FD20P00690
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Claire Watson (instructed by Hill Dickinson LLP) for the Applicant
Mr Shane Brady (instructed by Richard Cook Solicitors) for the Respondent
Ms Victoria Butler-Cole QC and Mr Alexander Ruck Keene (instructed by Cafcass Legal) for the Advocate to the Court Cafcass Legal
Hearing dates: 18–19 November 2020
Judgment Approved by the court for handing down
It is clearly established in English law that an adult (that is, someone who has reached the age of 18) is presumed, unless proved otherwise, to have capacity to decide whether or not to accept medical or surgical treatment. It is equally clear that a capacitous adult has an absolute right to accept or refuse treatment, for reasons good or bad or, indeed, for no reason at all, and even if the consequence of refusal is the certainty of very serious harm or even death. The decision of a capacitous adult is therefore determinative, in the strict sense in which I use the word. Subject only to being satisfied that the capacitous adult's expressed decision is in fact his true decision and not vitiated by the undue pressure of either events or people (as to which see In re T (Adult: Refusal of Treatment) [1993] Fam 95) the only function of the court is to give effect to it, whether or not it might accord with his judicially-determined best interests. Indeed, the court is not concerned to evaluate, let alone to impose an outcome determined by, his best interests.
It is conventional wisdom that no child (that is, someone who has not reached the age of 18) has such an absolute right, and that even if the child is Gillick competent (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112) or, having reached the age of 16, comes within the ambit of section 8 of the Family Law Reform Act 1969, the court, in the exercise of its inherent parens patriae or wardship jurisdiction, can in an appropriate case – typically thought of as being a case where the consequence of the child's decision is likely to be serious risk to health or death – overrule the child's decision, either, as the case may be, vetoing some procedure to which the child has consented or directing that the child should undergo some procedure to which the child is objecting. That conventional wisdom is founded on the decisions of the Court of Appeal in In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and in In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64.
In the present case that conventional wisdom has been challenged and put to the test. It is said that, whatever was or was not decided in those two cases, this is not the law. Times have changed, it is said. Views as to the proper balance between medical paternalism and patient autonomy have altered, with the balance, it is said, continuing to move against the former and in favour of the latter. The Human Rights Act 1998 has fundamentally changed the legal landscape as also, in this particular context, it is said, has the Mental Capacity Act 2005. And there have been other developments in the law; especial reliance is placed upon what is, on any footing, the very important decision of the Supreme Court of Canada in AC and Others v Manitoba (Director of Child and Family Services) 2009 SCC 30, [2009] 2 SCR 181, [2009] 5 LRC 557. These are important arguments that require the most careful consideration, not just because of the consequences for X, the child with whom I am concerned, but because of their potential impact on the law generally.
It is right that I set out here, verbatim, the way in which the case for X is put on her behalf:
“This case is about whether [X], a young woman declared to be Gillick competent and “mature and wise beyond her years”, should be afforded the exclusive right to decide her own medical care in the same way as her peers aged 18 years and older. [She] is not refusing all medical treatment. She is exercising a choice about how she wishes to fight her disease, a choice that is grounded in her human dignity, self-determination, bodily autonomy, and religious conscience. The Applicant seeks to deny [X] her autonomy, requesting a two-year “rolling order” which authorises doctors to repeatedly impose a medical procedure on [X] which she finds deeply repugnant. The Applicant further asks that the “rolling order” remain effective right up to the point [X] reaches the arbitrary chronological age of 18.
The Applicant's actions and request for a two-year “rolling order” comprise severe and profound violations of [X]'s rights guaranteed at common law, under the Mental Capacity Act 2005, and Articles 3, 5, 8, 9 of the European Convention on Human Rights … taken alone and in conjunction with Article 14.
[X] requests this Court reject the Applicant's application in the strongest and clearest of terms and declare that [X], as a person with decisional capacity who is “mature and wise beyond her years”, has the exclusive legal right to decide her own medical care, including refusal of consent to blood transfusions.”
That is a powerful plea which demands both respect and the most careful and anxious scrutiny.
The Applicant's response, in short, is that the law is settled and the court is bound to apply the legal principles set out by the Court of Appeal in In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64, any change to the law being essentially a matter for Parliament, and that the “rolling order” sought is both permissible and appropriate.
Because I am concerned in this judgment only with points of law, I can take the relevant facts very shortly. X was born in January 2005. She is a baptised Jehovah's Witness. Unhappily, she suffers from serious sickle cell syndrome. On occasion this produces a crisis when, in the opinion of her treating clinicians, a blood transfusion becomes an imperative necessity.
On 31 May 2020 such a crisis blew up (there had been a previous crisis in 2015 resolved without court order) which led to an urgent hearing out of hours before Gwynneth Knowles J on 3 June 2020. She gave judgment the same day: Re X [2020] EWHC 1630 (Fam). Applying the principles as summarised by MacDonald J in Cardiff and Vale University Health Board v T (A Minor) [2019] EWHC 1671 (Fam), paras 12–18, a case involving a baby whose mother, a Jehovah's Witness, was refusing consent to a blood transfusion, Gwynneth Knowles J made an order that that the hospital be permitted to transfuse X with red blood cells. There was no consideration at that stage as to whether X was Gillick competent. In the following months there were two more crises each of which was resolved with alternative medical management not involving blood transfusions.
The next event was in October 2020 and the matter came in front of me, under what I described as the pressure of considerable medical crisis, on 29 October 2020: Re X [2020] EWHC 3003 (Fam). On this occasion, X was represented by counsel, Mr Shane Brady. It was common ground that X was Gillick competent and Mr Brady wished to argue that, as a matter of law, her refusal of consent was determinative. I found myself in a most unhappy position, which I summarised as follows (paras 8, 10, 14):
“8 Mr Brady's argument, which is powerful and demands much fuller response than I can give it today, is that to impose this form of treatment on X is to impinge impermissibly upon her autonomy as, I emphasise, a Gillick competent child of almost 16. He submits that the law has moved on, not merely in consequence of the Human Rights Act 1998, but in more general developments, so that the position which had seemingly been reached by the Court of Appeal in the two cases of In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 and In re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64 in the early 1990s no longer reflects the law as it is. Those are powerful arguments which deserve full analysis and proper consideration. Unhappily, we do not have time for that today in the light of Dr C's medical evidence …
10 It seems to me that I have, for the purposes of today, to approach this matter on the basis of the law as it currently appears to be …
14 Mr Brady, in an enormously helpful and detailed skeleton argument for which I thank him, has put together arguments suggesting that this view of the law is in need of urgent re-analysis and review, partly in the light of the Human Rights Act 1998, partly in the light of more general recent legal developments, and partly in the light of the very important decision of the Supreme Court of Canada to which he powerfully drew my attention: AC v Manitoba [2009] SCC 30, [2009] 2 SCR 181. These are arguments which require to be dealt with, but it is quite impossible for me, within the timescale that Dr C's evidence sets out, to engage properly with these arguments today. It seems to me that I have no realistic choice, but to take the law as being that which was laid down by the Court of Appeal in the two cases I have mentioned, the best part of 30 years ago …”
Accordingly, I made an order (para 15) authorising the giving of the blood transfusion as desired by the treating clinicians. I went on, however,...
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