Re E (A Child) (Medical Treatment)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 12 September 2016 |
| Neutral Citation | [2016] EWHC 2267 (Fam) |
| Docket Number | Case number omitted |
| Court | Family Division |
| Date | 12 September 2016 |
[2016] EWHC 2267 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case number omitted
Mrs Fiona Walker (instructed by the local authority) for the applicant North Tyneside Metropolitan Council
Mr Barry N Speker (of Sintons Law) for the second respondent The Newcastle Upon Tyne Hospitals NHS Foundation Trust
Ms Elspeth Thomson (of David Gray Solicitors LLP) for the third respondent E
The first respondent (E's mother) was neither present nor represented
Hearing date: 8 July 2016
Judgment Approved
Sir James Munby, President of the Family Division:
I am concerned with a little boy E (that is not his true initial) who was born in Scotland in August 2014. His mother has many difficulties and has never been able to look after him. Initially E was placed with foster carers in Scotland. In December 2015 E was placed by the relevant Scottish authorities with a maternal aunt who lives in North East England.
On 14 April 2016 E was brought to the Royal Victoria Infirmary in Newcastle in what has been described as a near death condition. He was very seriously ill. A CT scan revealed a right subdural haematoma. His condition rapidly deteriorated and became life threatening. A further CT scan showed some extension of the subdural haematoma. An intracranial pressure measuring bolt was put through his skull and revealed high intracranial pressure. His condition was critical. Urgent neurosurgery was necessary to relieve the pressure. A consultant neurosurgeon, Mr Patrick Mitchell, performed a craniectomy, removing from the right side of E's head a piece of his skull approximately 10x12 cms. This allowed the brain to swell without raising the pressure. In his subsequent report (see below), Mr Mitchell explained that the craniectomy was deliberately fashioned behind the hairline to minimise the cosmetic impact.
Later the same day, 14 April 2016, and after he came out of theatre, E was examined by Dr Alison Steele, a Consultant Paediatrician and Designated Doctor for Safeguarding and Looked after Children for Newcastle. In a report dated 19 April 2016 Dr Steele listed no fewer than 75 marks, bruises and lesions on E's body. The local authority issued care proceedings in the Family Court on 15 April 2016; an interim care order was made the same day. E was discharged from hospital into specialist foster care on 6 May 2016. He has continued to make physical and emotional progress in the care of his foster carers and is thriving. Although these are early days, it seems likely that he will suffer no long-term neurological deficit. All in all, E has made a remarkable recovery. Photographs of him taken on 18 May 2016 show an alert, focused and active child.
The care proceedings continue in the Family Court. The final hearing is fixed for 26 September 2016. I understand that there is no realistic prospect of his mother resuming the care of E. His maternal aunt apart, no family carer has been put forward. Long-term fostering for a child of E's age is simply not appropriate. In all probability the judge hearing the care case will, if threshold is established (which on at least some basis seems likely), be faced with a stark choice: rehabilitation of E to his maternal aunt or adoption outside the family.
I am not concerned with the care proceedings and, beyond what I have already said, know little about them. Nothing I say can be allowed to have or will have any impact on the outcome of the care proceedings, which have to be determined by the judge exclusively on the basis of the evidence adduced at the final hearing of those proceedings. Nonetheless, for reasons which will become apparent in due course, I cannot avoid hazarding some view as to the likely outcome of the care proceedings. In the light of all I have read and heard I am satisfied that, for present purposes, I can properly and therefore ought to proceed on the footing (a) that the local authority will in all probability establish 'threshold' (though to what extent and in what terms is more difficult to predict, and I do not venture a prediction) and (b) that there is a distinct possibility that the proceedings will end up with the court approving a plan for adoption and making a placement order in relation to E.
On 18 April 2016, the local authority issued an application seeking to invoke the inherent jurisdiction of the High Court in relation to various questions to do with E's medical treatment. I need not go through the subsequent proceedings in any detail. With the approval, appropriately given, of Cobb J, the Family Division Liaison Judge, the matter has been dealt with by Her Honour Judge Hudson, sitting as a Deputy High Court Judge. For present purposes all that I need note is (a) that on 15 April 2016 Judge Hudson gave the local authority permission in accordance with section 100(3) of the Children Act 1989 to invoke the inherent jurisdiction and (b) that the one matter with which I am concerned (see below) comes before me pursuant to an order made by Judge Hudson on 28 June 2016.
The issue before me was identified in Judge Hudson's order as being "determination of the preferred option to manage [E's] medical needs following the craniectomy." In short, should E have a cranioplasty, and if so when? Or should a decision be deferred?
The matter came on for hearing before me on 8 July 2016. I had a report from Mr Mitchell, in the form of a letter dated 1 June 2016 answering questions which had been put to him. In addition to her report dated 19 April 2016 to which I have already referred, I had further reports from Dr Steele dated 6 May 2016, 22 June 2016 (a short letter) and 6 July 2016. The local authority' evidence was in the form of a statement from E's social worker dated 4 July 2016. The report of E's guardian, Ms Maggie Singer, is dated 5 July 2016. In addition, I had position statements or skeleton arguments from Mrs Fiona Walker, who appeared on behalf of the local authority, from Mr Barry Speker, who appeared on behalf of The Newcastle Upon Tyne Hospitals NHS Foundation Trust (the Trust), and from Ms Elspeth Thomson, who appeared on behalf of E.
Before the hearing commenced there were, I was told, discussions outside court involving the two doctors, the social worker, the guardian and the various legal representatives, which helpfully clarified the issues and brought into sharp focus what turned out to be the key issue – should I decide now what was to be done or should that decision be deferred for others to take in due course.
I heard oral evidence from Mr Mitchell and Dr Steele. I did not hear oral evidence from either the social worker or the guardian, their reactions to the oral evidence being sufficiently communicated through Mrs Walker and Ms Thomson. At the end of the hearing I reserved judgment, which I now hand down. It had been sent to the parties in draft on 22 August 2016.
It is convenient to start with the medical evidence. It is clearly and succinctly expressed. There is much advantage to allowing these experts to speak for themselves. The nuance is important. The facts are unusual. I therefore set out the major part of the written evidence verbatim, rather than attempting paraphrase.
Mr Mitchell and Dr Steele met, together with E's guardian and solicitor, on 6 May 2016. Dr Steele set out her understanding of the matter in her report the same day. She identified Mr Mitchell as being "much more concerned about the effects on social interaction if the plate is not in place" than on the medical risks of E being left without a plate.
In his report dated 1 June 2016, Mr Mitchell identified and evaluated the risks associated with the procedure for inserting a plate (a cranioplasty) as follows:
" General anaesthetic: minimal
Bleeding: low risk. Bleeding can be a problem but brisk dangerous bleeding is very rare.
Infection: This is a significant risk. I would estimate somewhere in the region of a 15% chance of a cranioplasty having to be removed because of infection.
Transient neurological impairment: I'd estimate this risk at around 10%
Permanent neurological impairment: I'd estimate this risk at around 5%
Death : Overall, I'd estimate this risk at 1–2% associated with the cranioplasty operation."
In answer to the question Approximately how large is the deficit in [E]'s skull and what is currently protecting his brain from damage and how strong is it? Mr Mitchell said this:
"The defect is approximately 10 x 12 cm. The brain is being protected primarily by his scalp. His scalp is not especially strong, particularly against penetrating injuries but in a normal functional family environment the risk of an injury arising because of a craniectomy is extremely low."
In answer to the question What are the advantages of [E] having a plate inserted to cover the deficit? In particular can you comment on the need to do this to protect the brain, Mr Mitchell said this:
"The principal advantages are cosmetic and psychological. As far as brain protection is concerned, the risks of the cranioplasty operation are larger than the risks associated with a craniectomy in a normal family environment."
Mr Mitchell then answered a series of essentially technical questions:
" Why is the preferred option a titanium plate rather than a titanium mesh or other material being used?
There is no particular medical reason to prefer one method over another. Titanium sheet cranioplasties are thinner than mesh which makes it easier to fit at his age the difference is marginal.
What is the cosmetic result from a plate?
Generally pretty good. As a titanium cranioplasty will not grow with his head it can lead to an asymmetric head contour in later childhood. This is unlikely to...
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