Re A (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice McFarlane |
| Judgment Date | 13 July 2016 |
| Neutral Citation | [2016] EWCA Civ 759 |
| Date | 13 July 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2016/2671 |
[2016] EWCA Civ 759
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mrs Justice Parker
FD16P00264
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
and
Lady Justice King
Case No: B4/2016/2671
Ms Katharine Scott (instructed by Bindmans LLP) for the Appellant
Miss Fiona Paterson (instructed by CAFCASS Legal Services) for the 1 st Respondent
Mr Michael Mylonas QC and Mr Mungo Wenban-Smith (instructed by Hempsons Solicitors) for the 2 nd Respondent
The third respondent was neither represented nor appeared in person. The fourth respondent appeared in person.
Hearing date: 7 July 2016
Approved Judgment
This is an appeal against the making of a declaration by Mrs Justice Parker on 20 June 2016 whereby she declared that:-
"It is lawful and in A's best interest to remove his respiratory support by extubating him and, if he becomes unstable, not to reintroduce his respiratory support again but instead generally to furnish such treatment by way of pain relief or sedation and nursing as may be appropriate to ensure that A suffers the least distress and pain at the time and in the manner of his dying."
The effect of the declaration, if upheld, would be that the ventilator which keeps A, (a little boy born on 16 October 2013 (2 yrs 8 mths)) alive, would be removed and he would die quickly thereafter.
The appellant, (the mother) appeals the making of the declaration and accompanying orders on three grounds:
A. The judge was plainly wrong to make a finding of fact that A was in pain and/or felt pain, and/or misunderstood the evidence in respect of pain, leading to a plainly wrong finding.
B. Failing to carry out a proper, detailed and careful balancing exercise in respect of whether continued treatment was in A's best interests and by failing to do so, erroneously carried out the best interests analysis.
C. Failed to properly have regard to the obligation to protect life.
The St George's University NHS Foundation Trust (the NHS Trust) who make the application, and A's CAFCASS children's guardian, each support the judge's decision and say that the challenge to it by the mother is predicated on a wholly understandable, but nevertheless mistaken, premise both as to A's condition and his likely prognosis.
The Facts
On 16 November 2015 the mother was driving with A and his baby brother to collect their older brother and sister from school. There was a road traffic accident. An ambulance crew were at the scene of the crash within minutes, but even so A experienced an asystolic period of 17 minutes. Only the fact that the ambulance crew got to A so quickly prevented his death at the scene of the accident; as it was A suffered grave injuries and his parents were warned that he was unlikely to survive. A spinal cord injury seen on an early CT scan was catastrophic. There was in addition a devastating hypoxic brain injury.
A is tetraplegic. It is common ground that he cannot feel anything below the neck. A cannot see and, whilst the circuit of his hearing is intact, due to the severity of his brain injury, he is unable to process this into functional hearing. He does not respond to any command, noise or sight. He does not demonstrate any sign of awareness of his surroundings and is minimally conscious. He has no spontaneous respiratory effort, no limb movement, no response to painful stimuli, no cough reflex and weak gag responses. The mother, unsurprisingly, cannot accept the medical evidence as to A's current level of responsiveness. She believes he responds to music, that when he curls his hands it is a sign of pleasure rather than a reflex movement and that there may be some functional vision. She feels he responds to her voice. All the doctors say that the mother is mistaken in her belief.
A has remained in paediatric intensive care since the day of the accident and receives 24 hour one to one nursing care. His life expectancy is uncertain but limited.
To date A has suffered three episodes of ventilator associated pneumonia and has had multiple urinary tract infections. It is common ground that he will have repeated episodes of pneumonia and at some stage, his treating physician Dr Manna says, the pneumonia will be so severe that he will not be able to be ventilated and will die.
The court had before it a raft of expert medical evidence, in particular:-
"Dr Soumendu Manna, consultant paediatric intensivist, A's treating clinician;
Dr Neil Thomas, consultant paediatric neurologist, from Southampton, who was asked to prepare an independent report by the NHS trust;
Dr Martin Smith, consultant paediatric neurologist at the John Radcliffe Hospital, who was the jointly instructed expert in these proceedings."
A's condition is not fixed. Evidence was before the court about his present and future condition derived from a number of sources, in particular (i) what is revealed on scans of his brain, (ii) his clinical presentation including EEGs and (iii) in relation to any future improvement consequent upon his brain 'settling' following the insult it received in the accident. This final element is the only aspect in respect of which there was some degree of disagreement between the experts and is dealt with at paragraph 26 below.
Dr Smith explained in his report, and again in evidence, that brain scans carried out on A on 17 November 2015 and 24 February 2016 reveal evidence of widespread and increasing cerebral atrophy; his expectation would be that if a further scan was performed now, it would show further progression of brain atrophy.
In addition to the deterioration seen on the MRI scans, Dr Martin Gray, the clinical lead at the NHS Trust, filed a statement dated 16 June 2016 updating the clinical position and detailing concerning developments over the last few weeks. A has started having new episodes of acute onset tachycardia with sweating and pyrexia. Tests for infection (which might have provided an explanation for the pyrexia) have proved negative. A has, in addition, had episodes of very low heart rate, which demonstrate an autonomic instability which requires close monitoring in intensive care and may get worse over time. On 2 June an EEG was performed, it was highly abnormal and confirmed the findings of severe brain dysfunction. The electrical activities in the brain were suggestive of frequent seizures with a pattern of brainwaves known as "burst suppression pattern". Dr Smith, when asked in evidence about the EEG, said that it "may be one of the worst EEGs I have come across at this distance from an injury". He explained that "burst suppression" is "pretty much, other than entirely flat, the worst appearance brain waves can possibly show", and "the fact that it looks like that seven months after the accident, I have to say, is unfortunately extremely ominous".
Given the extent of A's injuries and his poor prognosis, Dr Manna and his team have, at intervals since November 2015, discussed with the family the possibility of the withdrawal of life sustaining treatment. A's father agreed to the withdrawal of A's life support because he felt that A was suffering from intensive care intervention. A's mother understandably did not, and does not, agree to the proposed course of action and wishes the continuation of full intensive care.
It was against this backdrop that the NHS Trust made their application.
A's paternal grandmother is a party and attended at the hearing below where she was neutral as to her position. She attended court again to hear the appeal. She spoke with quiet dignity and asked that if there was any hope that A would recover, the court would "give him a chance". She spoke of A as being a "treasured child" and of how "just the thought" of losing him was devastating to all the family.
The mother has filed a statement and gave evidence before the judge; she was also present throughout the appeal hearing. The mother visits A every day and sits with him for hours at a time, she cannot accept that that there will be no substantial change in A's condition. Whilst the mother accepts the fact that A has a severe brain injury and that he requires ventilation, it is her genuine belief that he is, to a limited degree, responsive to her touch and relaxes when music is played. She is understandably unable to accept the evidence of the treating physicians that what she sees is reflex movement and that the reality is that in his minimally conscious state, A is unaware of his surroundings. Dr Smith saw no response from A to his mother when he visited the hospital in order to prepare his report.
When the matter came to trial the doctors who were called to give evidence, namely Dr Manna, Dr Thomas and Dr Smith, together with the children's guardian, were each of the view that A's best interests could only be served by discontinuing life sustaining treatment. Just how hard a decision that has been for the treating team was reflected in the evidence of Dr Manna:-
"This is the first time in my twenty-seven years I'm coming here and it is prolonging a suffering and we are here. It was not an easy decision for the whole team to come here. I mean, we thought long and hard. It is not only the 8 paediatric intensive consultants, it is 80–100 odd nurses, it is the neurology team, the neurosurgery team, it is the physiotherapists. Everything together, we decided that it is not in A's best interest to continue this type of intensive care to keep him alive. He is not benefiting from any of this and that is why we're here, so that deferring it, and for us, we think that it is inhuman to keep A suffering like that. That's why we're here."
A has, as has already been noted, been in paediatric intensive care since the date of his accident some 8 months ago. In...
To continue reading
Request your trial
-
E (A Child)
...EWCA Civ 271; [2003] 1 WLR 617; [2002] 4 All ER 1136, CAThe following additional cases were cited in argument:A (A Child), In re [2016] EWCA Civ 759, CAA (Welfare of Children: Immunisation), In re [2011] EWHC 4033 (Fam)Afiri v France CE:ECHR:2018:0123DEC000182818Aintree University Hospitals......
-
Tafida Raqeeb (by her Litigation Friend XX) v Barts NHS Foundation Trust
...desire to survive. 117 Within the foregoing context, as I also noted in Kings College Hospital NHS Foundation Trust v Haastrup, in Re A (A Child) the Court of Appeal confirmed once again that, whilst requiring great sensitivity and care of the highest order, the task of the court in cases c......
-
Mrs Fixsler v Manchester University NHS Foundation Trust
...been cited by in cases involving the withdrawal of treatment from children, including in judgments of this Court in Re A (A Child) [2016] EWCA Civ 759 and Re Pippa Knight. But as my Lady Elisabeth Laing LJ pointed out in the course of submissions in the present case, the statutory provisio......
- Re Gard (A Child) (Child on Life Support: Withdrawal of Treatment)