Paula Parfitt v Guy's and St Thomas' Children's NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Elisabeth Laing LJ,King LJ |
| Judgment Date | 19 March 2021 |
| Neutral Citation | [2021] EWCA Civ 362 |
| Docket Number | Case No: B4/2021/0124 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2021 |
In the Matter of the Senior Courts Act 1981
And in the Matter of Pippa Knight (a Child)
[2021] EWCA Civ 362
Lady Justice King
Lord Justice Baker
and
Lady Justice Elisabeth Laing
Case No: B4/2021/0124
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Poole
FD20P00135
Royal Courts of Justice
Strand, London, WC2A 2LL
Vikram Sachdeva QC, Victoria Butler-Cole QC and Catherine Dobson (instructed by Sinclairslaw) for the Appellant
Michael Mylonas QC (instructed by Hill Dickinson LLP) for the First Respondent
Neil Davy (instructed by Cafcass Legal) for the Second Respondent
Hearing date: 9 February 2021
Approved Judgment
Introduction and summary
This is a profoundly sad and moving case about the life of a small child.
Pippa was born in April 2015 into a loving family. She has a brother who is two years older than she. When she was 20 months old, she was diagnosed with a rare and usually terminal condition known as acute necrotising encephalopathy (“ANE”), probably caused by a viral infection, from which she suffered very severe brain damage. Over the next few months, her health deteriorated rapidly. She is now totally dependent on mechanical ventilation and has respiratory instability with frequent desaturations requiring specialist nursing and physiotherapy interventions. She is doubly incontinent and has cortical blindness.
Shortly after Pippa's second birthday, her father, who had previously lost a child during an earlier relationship, took his own life. Her mother, supported by other family members, has devoted her life to Pippa, looking after her herself for as long as possible. During the last two years when Pippa has been continuously in hospital, her mother has lived in hospital accommodation and spent up to 16 hours a day by her bedside. Pippa's brother is living with his grandmother and is having video calls with his sister, but because of restrictions imposed under the COVID-19 regime has not visited the hospital since February 2020.
Through the dedication and skill of doctors, nurses, therapists and other hospital staff, Pippa has received medical and nursing care of the highest quality but, despite their efforts, she has slipped into a persistent vegetative state (“PVS”). The medical evidence indicates that almost certainly she neither feels pain nor is able to experience pleasure and that there is no prospect of any improvement in her condition. Her mother disagrees, believing that there are signs of improvement and that Pippa shows an awareness of her family and circumstances from which she is capable of deriving pleasure.
When a disagreement about a child's medical treatment arises between doctors and the family, an application may be made to the court to resolve the dispute. When considering such an application, the judge must exercise his own independent and objective judgment about what is in the child's best interests. In this case, on 9 March 2020, the NHS Trust (“the Trust”) responsible for the hospital where she is being treated, the Evelina London Children's Hospital, applied to the court for declarations and orders that would permit the withdrawal of life-sustaining treatment. Her mother opposed the application and instead proposed that Pippa should return home. It was common ground that in order to have any chance of being managed in a home environment, Pippa would require a tracheostomy to deliver ventilation safely and that she would need to be transferred to a portable ventilator which could be used in a step-down unit and subsequently at home. The mother sought the court's approval for a trial of portable ventilation to establish whether Pippa was sufficiently stable to return home.
The application came before Poole J shortly before Christmas 2020. Before the judge and before this Court, the parties have been represented by lawyers who are very experienced in cases involving decisions about serious medical treatment. The judge had the benefit of evidence from a number of highly respected specialist doctors. This is not a case where any of the parties has relied on evidence from outside the mainstream of orthodox medical opinion. The treating clinicians who gave evidence included Dr A, a paediatric intensive care consultant who is Pippa's lead consultant and who has been involved in her care throughout her time at the Trust's Paediatric Intensive Care Unit (“PICU”), Dr B, the lead consultant paediatric neurologist, Dr C, a respiratory consultant, who has led Pippa's respiratory care, and Ms F, a clinical specialist paediatric respiratory physiotherapist. The hospital clinicians were unanimously of the view that the mother's proposal was contrary to Pippa's best interests. But some of the independent specialists instructed with the court's leave took a different view. These included Dr Colin Wallis, a consultant respiratory paediatrician at Great Ormond Street Hospital for Children, Dr Stephen Playfor, a consultant paediatric intensivist at the Royal Manchester Children's Hospital, and Dr Michelle Chatwin, a consultant paediatric respiratory physiotherapist at the Royal Brompton Hospital. It was Dr Wallis who first suggested that it might be possible to transfer Pippa home on long-term ventilation, a proposal supported by Dr Playfor and Dr Chatwin.
At the conclusion of the hearing, the judge reserved judgment which he considered and drafted over Christmas and delivered on 8 January 2021. After a comprehensive analysis which was characterised by great insight and humanity, he concluded that the Trust's application should be granted and made declarations that it was lawful and in Pippa's best interests that (a) she should not be provided with a tracheostomy, (b) mechanical ventilation should be withdrawn, and (c) there be clearly defined limits on the treatment provided to her after the withdrawal of ventilation, with the effect that she would be allowed to die.
The mother filed a notice of appeal citing four grounds of appeal and on 25 January 2021 my Lady, King LJ, listed the application for permission to appeal for hearing with appeal to follow if permission were granted. Proceedings before the Court of Appeal involve a review of the judge's decision, not a full rehearing of the case. The law provides that this Court can only allow an appeal where it concludes that the judge's decision was wrong or that there had been a serious procedural or other irregularity. No one has suggested that there was any irregularity in this case. In simple terms, the question for us is whether the judge's decision was wrong.
The judge's decision was rightly based on his assessment of Pippa's best interests because her welfare in the widest sense is the paramount consideration. He looked at all the evidence, including importantly the views of her family, in particular her mother who has dedicated her life to Pippa and fought so hard to find a way of keeping her alive. Having considered all the evidence, the judge concluded that it was not in Pippa's best interests to continue to receive life-sustaining treatment nor to embark on a trial of portable ventilation which if successful could lead a transition process, carried out over a number of months, towards home care.
In my view, the judge's decision was not wrong. Having considered all the evidence drawn to our attention and the submissions made to us, I am satisfied that he was right. For the reasons set out in detail below, I would refuse permission to appeal on three of the four grounds. On the fourth ground, I would grant permission to appeal but dismiss the appeal.
The law
Cases in this jurisdiction involving applications to withdraw life-sustaining treatment for patients, in particular children, have attracted national and sometimes international attention, most notably the proceedings involving Charlie Gard, which included the hearing before this Court in May 2017 leading to the judgment reported as Yates v Great Ormond Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410, [2018] 4 WLR 5 (“ Yates”). The media and the wider general public are understandably and properly interested not only in the human stories lying at the heart of every case but also about the process by which these difficult decisions are made. Each case requires care and attention of the utmost sensitivity.
The legal principles, however, are clear and well established. As my Lady pointed out in Re A (A Child) [2016] EWCA Civ 759, a case involving the withdrawal of treatment from a child, the principles were succinctly summarised by Baroness Hale of Richmond in Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591, a case concerning an adult patient receiving clinically-assisted nutrition and hydration. At paragraph 22 she said:
“…the focus is on whether it is in the patient's best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if...
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...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 again in any detail. But the challenge to the judge's interpretation of......
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