Re J (A Minor)

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE BALCOMBE,LORD JUSTICE LEGGATT
Judgment Date10 June 1992
Judgment citation (vLex)[1992] EWCA Civ J0610-8
Docket Number92/0549
CourtCourt of Appeal (Civil Division)
Date10 June 1992
Re "J" (A Minor)

[1992] EWCA Civ J0610-8

Before:

The Master of The Rolls

(Lord Donaldson)

Lord Justice Balcombe

(Not Present)

Lord Justice Leggatt

92/0549

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(MR. JUSTICE WAITE)

Royal Courts of Justice

MR. ROBERT FRANCIS Q.C. and MR. HUW LLOYD (instructed by Messrs. Coopers) appeared for the Appellant Fourth Defendant.

MR. ROBIN BARDA (instructed by the Official Solicitor) appeared for the Respondent Third Defendant.

MR. ALLAN LEVY Q.C. and MRS. DIANA COOPER (instructed by Messrs. Dilworth & Co.) appeared for the Respondent Second Defendant.

MR. ALLAN LEVY Q.C. and MR. GRAHAM HULME (instructed by Messrs. Lahiff & Company) appeared for the Respondent First Defendant.

1

THE MASTER OF THE ROLLS
2

"J." is 16 months old having been born on 22nd January 1991. When he was one month old he suffered an accidental fall hitting his head. As a result he is profoundly handicapped, both mentally and physically. He is severely microcephalic, his brain not having grown sufficiently following the injury. He has a severe form of cerebral palsy. He has cortical blindness. He also has severe epilepsy and indeed has suffered as many as seven attacks in one day. In a relatively short period earlier this year he suffered 43 epileptic attacks lasting between ten minutes and two and a half hours. He has largely to be fed by a nasogastric tube. Medical opinion is unanimous that "J." is unlikely to develop much beyond his present level of functioning, that this level may well deteriorate and that his expectation of life, although uncertain, must be short.

3

One might perhaps have expected that it would have been impossible to discharge him from hospital, but the local authority, which shares parental responsibility for him, has been able to place him with devoted foster parents whose dedication and skill are of the highest possible order. Largely unassisted, they attend to all his needs. "J." requires constant attention day and night and is fitted with an alarm which operates should be stop breathing. His nasogastric tube has from time to time to be removed or re-inserted. Secretions which block or threaten to block his airway have to be removed by suction. Antibiotics and other drugs have to be administered. His breathing has on occasion to be assisted by the administration of oxygen. Last, but by no means least, the foster parents have to reach decisions, sometimes in crisis conditions, as to whether "J." should be returned to hospital as has in fact happened on numerous occasions. May I join in the admiration and respect which all concerned, including "J.'s" mother, have expressed for what the foster parents have done for "J.".

4

In December 1991 the consultant paediatrician in charge of "J." (Dr. I.) wrote a report in which she expressed the view that:

"[J.] has been under my care since he sustained serious injuries in February 1991. He is now 10.5 months old and has made no developmental progress since the time of his injury which he sustained at the age of 4 weeks. He now has severe cerebral palsy, is unable to roll over, sit or crawl. He cannot feed himself and at present is fed by a nasogastric tube. He suffers from severe fits. It is uncertain whether he recognises his carers. He occasionally responds to sound. A CT scan performed in May 1991 shows a shrunken brain surrounded by chronic subdural effusions. He is on regular medication for his fits. Under these circumstances it would not be medically appropriate to intervene with intensive therapeutic measures such as artificial ventilation if [J.] were to suffer a life threatening event. It is possible that [J.] could inhale vomit during either a nasogastric feed or an epileptic fit. It would be appropriate to offer ordinary resuscitation with suction, physiotherapy and antibiotics. It would not, however, be appropriate to subject [J.] to the more intensive measures that would be required if he was unable to breathe spontaneously."

5

For reasons which are both obscure and immaterial, there was considerable delay in this report coming to the attention of the local authority having the care of "J." When in January 1992 it did come to the authority's notice, Dr. I. was asked to provide a further up to date report and in addition the authority obtained a second opinion from Dr. R., a consultant paediatric neurologist with a London teaching hospital.

6

On 30th March 1992 the local authority sought and were granted leave under section 100 of the Children Act 1989 to invoke the inherent jurisdiction of the High Court to "determine whether artificial ventilation and/or other life saving measures should be given to the minor if he suffers a life threatening event".

7

The substantive application came before Waite J. on 11th and 12th May 1992. The judge in giving judgment quoted from Dr. I.'s latest report (16th April 1982) as follows:

"…it would not be medically appropriate to intervene with intensive therapeutic measures such as artificial ventilation if [J.] were to suffer a life threatening event. It is possible that [J.] could inhale vomit during either a nasogastric feed or an epileptic fit. It would be appropriate to offer ordinary resuscitation with suction, physiotherapy and antibiotics.

[J.] should not be placed on prolonged life support using a ventilator in an intensive care unit. If he is unable to breathe spontaneously it would be cruel to subject him to positive pressure ventilation to prolong his life artificially. He would be unlikely to survive the procedure but could well remain dependent on machinery for life support for weeks if not months before his heart stopped beating.

Since it is impossible to communicate with him to reassure him he would have to be kept sedated. This type of care is very unpleasant for the patient and is not undertaken in the UK unless the outlook is likely to be a return to healthy life. Since [J.] has made very little development progress since the accident he has no potential to return to a healthy life and thus intensive care would not only be cruel but would artificially prolong his vegetative state."

8

Waite J. also recorded that Dr. N., a consultant paediatrician and paediatric cardiologist with another London teaching hospital who had been consulted by the Official Solicitor, was broadly in agreement with Dr. I. The judge no doubt also had in mind the report of Dr. R., who had confirmed all Dr. I.'s findings, but had not in terms expressed a view on the appropriateness of positive pressure ventilation. In these circumstances it can fairly be said that there was no medical evidence favouring such ventilation, although it was clearly possible that within the paediatric medical speciality some consultant of repute could be found who took a different view. Between the hearing before Waite J. and the hearing of the appeal, such a consultant was in fact found, namely B., a professor of child health at a third London teaching hospital medical school. The basis of this professional disagreement was I think that Professor B. did not regard artificial ventilation as being a "cruel treatment" and took a much more optimistic view than Dr. I. as to the likelihood of it being possible to wean "J." from such ventilation if it were ever undertaken.

9

At the time of the hearing the health authority supported Dr. I.'s view that artificial ventilation was inappropriate in "J.'s" case. Indeed it would have been quite impossible for it to have adopted any other attitude. Health authorities are supported by medical and by administrative staff. In the context of medical decisions, it would be perverse for it to act otherwise than in accordance with the advice of its medical staff when that advice was unanimous as it was in this case, the two other paediatric consultants on its staff wholly agreeing with Dr. I.

10

The Official Solicitor, as "J.'s" guardian ad litem, was of the same view on the strength of the independent advice of Dr. N.

11

The local authority social work team concerned with "J" would have accepted Dr. I.'s advice, but in view of the seriousness of the decision rightly referred the matter to the case review sub-committee consisting of elected councillors. That committee by a majority of three to two decided to ask the court to require the health authority to continue to provide all available treatment to "J." including "intensive resuscitation".

12

"J.'s" mother understandably supported the stance of the local authority. "J.'s" parents are divorced but "J.'s" father is as concerned as his mother for "J.'s" welfare. In the situation which had developed he, again understandably, did not feel able to form a firm view on what was in "J.'s" best interests.

13

On 12th May 1992 Waite J. made the following order whose terms had been formulated by leading counsel then appearing for "J.'s" mother:—

"IT IS ORDERED THAT in the interim and an injunction is hereby granted ordering that:—

In the events

(i) that the medical condition of [J.] changes in such a way that his life is threatened but is capable of being prolonged by the application to him of intensive therapeutic measures including artificial ventilation, and

(ii) that he is at that time in the care of the…Area Health Authority,

(iii) that the required drugs and equipment are or could reasonably be made available,

the…Health Authority do cause such measures (including, if so required to prolong his life, artificial ventilation) to be applied to [J.] for so long as they are capable of prolonging his life.

There be liberty to the…Area Health Authority to apply on four hours' notice to all parties (such notice to be sufficiently given...

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