Re C (A Minor) (No. 1) (Wardship: Medical Treatment)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BALCOMBE,LORD JUSTICE NICHOLLS |
| Judgment Date | 20 April 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0420-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0388 |
| Date | 20 April 1989 |
[1989] EWCA Civ J0420-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE WARD)
Royal Courts of Justice
The Master of the Rolls
(Lord Donaldson)
Lord Justice Balcombe
Lord Justice Nicholls
89/0388
MR, ANDREW KIRKWOOD Q.C, appeared for the Official Solicitor.
MR. J. LESLIE appeared for the Local Authority.
MR. MARTIN WOOD appeared for the Mother.
Before coming to the substance of the appeal there is one preliminary matter with which I should deal. Experience suggests that it is no longer possible to rely upon good sense, taste and sensitivity to protect parents from the invasion of their personal grief in a situation such as this. Nor does this protect health and local authorities and their officers from being harrassed when making difficult decisions. For this reason the learned judge imposed a wide ranging injunction in the interests of "C" forbidding any enquiries directed to ascertaining the identity of "C", her parents, the local authority, the area health authority and the hospital medical practitioners and staff having, or having had, care of "C". This injunction also extended to restraining the media by itself, its servants, agents or otherwise from publishing any material which will identify or assist in identifying any of those persons or bodies.
I personally regret the necessity for any such injunction but have no doubt of its need. That being so, I have to say that the names of the solicitors involved should not be published at the present stage because such publication would or might identify the area in which they practise and suggest, rightly or wrongly, the area in which the relevant local and area health authorities operate. If, of course, that situation changes, the court will be only too happy to authorise disclosure of that information.
Turning now to the substance of the appeal, I have, most regretfully, to start with one fundamental and inescapable fact. Baby "C" is dying and nothing that the court can do, nothing that the doctors can do and nothing known to medical science can alter that fact.
The problem of how to treat the terminally ill is as old as life itself. Doctors and nurses have to confront it frequently, but it is never easy. Parents and relatives have to confront it less often and that makes it all the more difficult for them. Judges are occasionally faced with it when terminally ill children are wards of court. It is an awesome responsibility only made easier for them than for parents to the extent that Judges are able to approach it with greater detachment and less emotional involvement.
The present case is one of the saddest which can be imagined. Not only are we concerned with a very young baby, but one who became terminally ill before she was even born, a fact which only became apparent at a later date.
"C" was born prematurely on 23rd December 1988. She is now 16 weeks old. At birth she was found to be afflicted with a much more serious condition than the usual type of hydrocephalus. There was not merely a blockage of cerebral spinal fluid within the brain, but as a result the brain structure itself was poorly formed. Her progress since then and further examinations have revealed how exceptionally she has been affected, and to that I will return.
But first I must explain how the court came to be involved. Some time before "C" was born and at a time when no-one anticipated that she would be born handicapped, the Social Services were in possession of information which showed that the parents would have great difficulty in caring for her. This aspect was the subject of long and anxious consideration and it was decided that when she was born an application should be made to make her a ward of court. I must emphasise that this decision was quite unrelated to "C"'s medical condition, which was neither known nor suspected at the time at which it was made. When "C" was "born and it became apparent that she was brain damaged, the only change of plan was a decision to apply for a 14 day place of safety order under the Children and Young Persons Act 1969 to preserve the position until "C" could be made a ward of court. Once "C" had become a ward, which happened on 5th January 1989, two weeks after her birth, the court became charged with the obligation of making decisions in the interests of the welfare of "C" which would otherwise have been solely a matter for her parents.
One of the first decisions which the court had to make was whether or not to agree to the child being operated on to relieve pressure on the brain. This is often done in cases of hydrocephalus with good results, but alas in the case of "C" all that could be hoped for was that it would prevent her head becoming so enlarged that nursing would become impossible. The damage to her brain had been done before birth and was irreparable.
Those who, understandably, have been moved by the story of "C", but who have no personal involvement, have publicly commented that this operation should have been performed. I am bound to say that I think that it might have been better if they had first made sure of the facts. In fact, the Registrar of the court readily consented to its being undertaken and it was. The actual order was dated 11th January 1989 and it required that "C" "who is suffering from congenital hydrocephalus, receives such treatment including surgical treatment as is considered medically appropriate" to her condition. It was pursuant to this order that the doctors operated on "C" and inserted a shunt to relieve pressure on her brain.
At all times since her birth "C" has received the finest and most caring medical and nursing attention which this country has to offer. However, the time came when a decision had to be made on what further treatment should be provided. In a critical situation such as this such decisions should not be, and are not, taken without wide consultation. And so it came about that the local authority's medical and social services departments became involved. The essential problem was what treatment should be given in the best interests of "C" if, as sooner or later was inevitable, she suffered some infection or illness over and above the handicaps from which she was already suffering. In the middle of last month a social worker expressed the view that in such a situation the court would expect the doctors to embark on "treatment appropriate to a non handicapped child". The legal department of the local authority, on the other hand, expressed the view that "C" should "receive such treatment as is appropriate to her condition".
For my part, I have no doubt that the legal department was right and the social worker was wrong. You do not treat a blind child as if she was sighted, or one with a diseased heart as if she was wholly fit. But this difference of opinion created a problem for Dr. "W", the physician in charge of "C", for his paediatric colleague, Dr. "S", and for the nursing staff. Sooner or later he or the local authority would have been bound to seek instructions from the court because, as Mrs. Justice Heilbron said in In re "D" (A Minor) (1976) Fam. D. 185 at page 196:
"…once a child is a ward of court no important step in the life of that child can be taken without the consent of the court…"
In the circumstances, and quite rightly, the local authority decided to consult the court sooner rather than later. In previous correspondence, which was of course made available to the judge, Dr. "W" had raised the question of what he should do if the time came when it proved impossible to feed "C" through a syringe, in itself a procedure fraught with difficulty. In such circumstances should he resort to the use of a nasal-gastric tube? If "C" vomited, should he set up an intravenous drip? If "C" developed a terminal respiratory infection, should she be given antibiotics? All these were legitimate and difficult questions, given the sad but fundamental truth that "C" was dying and the only question was how soon this would happen.
Paced with these problems, the judge invited the intervention of the Official Solicitor, who asked one of the nation's foremost paediatricians to examine "C" and to make recommendations. I do not name him, simply because it might serve to identify where "C" is being treated; I refer simply to "the Professor". The Professor reported as follows and I read from his report:
"The records revealed that at birth she had a much more serious condition than the usual type of hydrocephalus. The detailed investigations which were done showed that there was not merely a blockage of cerebrospinal fluid within the brain, but that the brain structure itself was poorly formed. Thus the operation that was done to relieve the pressure within the brain was no more than a palliative procedure to prevent her head from becoming so excessively large that nursing would be impossible. The operation could not be expected to restore brain function.
"C"'s appearance is of a tiny baby. Although she is 16 weeks old, she is the size of a 4 week baby apart from her head, which is unusually large by way of being tall and thin—squashed because of sleeping on her side. She lies quiet until handled and then she cries as if irritated. Her eyes move wildly in an uncoordinated way and she does not appear to see. (Her pupils do not respond to light so it is most unlikely that the mechanism for vision is present). She did not respond to very loud noises that I made, though the nurses said that she sometimes seems startled to their loud noises. However, my impression was that she did not hear,...
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