Re J (A Minor) (Wardship: Medical Treatment)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE TAYLOR
Judgment Date19 Oct 1990
Judgment citation (vLex)[1990] EWCA Civ J1019-6
Docket Number90/0915

[1990] EWCA Civ J1019-6

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(MR. JUSTICE SCOTT BAKER)

Royal Courts of Justice

Before:

The Master of the Rolls

(Lord Donaldson)

Lord Justice Balcombe

Lord Justice Taylor

90/0915

Re J. (A Minor)

MR. JAMES MUNBY Q.C. and MR. PETER JACKSON (instructed by the Official Solicitor) appeared for the Appellant (infant).

MISS SHIRLEY RITCHIE Q.C. and MR. COLIN ANDERSON (instructed by the Solicitor to the Walsall Metropolitan Borough Council) appeared for the Respondent (local authority).

MR. TIMOTHY CLARK (instructed by Messrs. Enoch Evans, Walsall) appeared for the Respondents (parents).

THE MASTER OF THE ROLLS
1

Baby J. has suffered almost every conceivable misfortune. He was a very premature baby—born after 27 weeks' gestation on 28th May 1990. He weighed only 1.1 kg. (2.5 lbs.) at birth. He was not breathing. Almost immediately he was placed on a ventilator and given antibiotics to counteract an infection. He was put on a drip. His pulse rate frequently became very low and for ten days it was touch and go whether he survived.

2

One month later, on 28th June, the doctors were able to take him off the ventilator, but he was, and still is, a very sick and handicapped baby. There followed recurrent convulsions and episodes when he stopped breathing (apnoeas). As a result he was oxygen-dependent until early August. At the end of August the doctors thought that he could be allowed to go home, although the prognosis was gloomy in the extreme. Four days later, on 1st September 1990, he had to be re-admitted to hospital because he had choked and become cyanosed.

3

The subsequent history of Baby J. has been traumatic both for him, his parents and those professionally involved in caring for him. On 3rd September it was noted that J. had become cyanosed when he cried. On 5th September he collapsed suddenly and was again cyanosed. He was without a pulse, but was resuscitated. Two days later he again collapsed and had to be put on a ventilator. Between then and 23rd September he was continuously on a ventilator. During that period four attempts were made to wean him from it. The first three failed because he suffered fits which interfered with the efficiency of the ventilator and on one occasion the doctors had to paralyse him in order to make his oxygen level safe. Since 23rd September J. has been breathing independently and in some ways his condition has slightly improved. However this improvement is from a base line which can only be described as abysmally low.

4

Needless to say the doctors have been concerned to discover what are likely to be Baby J.'s long term disabilities. As a result it is clear that he has suffered very severe brain damage due to shortage of oxygen and impaired blood supply around the time of his birth. This is no-one's fault, but stems from his prematurity. Ultra sound scans of his brain were conducted on 22nd August and 10th September. They showed a large area of fluid filled cavities where there ought to have been brain tissue. The body is incapable of making this good. Of the three neo-natalogists who have been concerned with his care, the most optimistic is Dr. W. His view is that J. is likely to develop serious spastic quadruplegia, that is to say, paralysis of both his arms and legs. It is debatable whether he will ever be able to sit up or to hold his head upright. J. appears to be blind, although there is a possibility that some degree of sight may return. He is likely to be deaf. He may be able to make sounds which reflect his mood, but he is unlikely ever to be able to speak, even to the extent of saying Mum or Dad. It is highly unlikely that he will develop even limited intellectual abilities. Most unfortunately of all, there is a likelihood that he will be able to feel pain to the same extent as a normal baby, because pain is a very basic response. It is possible that he may achieve the ability to smile and to cry. Finally, as one might expect, his life expectancy has been considerably reduced at most into his late teens, but even Dr. W. would expect him to die long before then.

5

This assessment of Baby J.'s present state and likely future development is not based only upon the skills and experience of the doctors caring for him. It is supported by the ultra sound scans to which I have already referred and by other objective scientific testing.

6

The problem which now has to be faced by all concerned is what is to be done if Baby J. suffers another collapse. This may occur at any time, but is not inevitable. In most cases this would be a matter to be discussed and decided by the doctors in consultation with the parents. By this I do not mean that the parents could tell the doctors what to do, but they would have the right to withhold consent to treatment, subject to the right of the doctors to apply to make the child a ward of court and to seek the guidance of the court. In practice it might be expected that the parents would have confidence in the doctors and that the doctors, recognising the agonising dilemma facing the parents, would take all the time that was necessary to explain the very limited options which were available and, if at all possible, would agree with the parents upon a course of action or inaction. In the present case there has been no real difference of opinion between the doctors and the parents, but for extraneous reasons into which it is unnecessary to go Baby J. has in fact been made a ward of court and accordingly the right and duty to give or refuse consent to treatment is vested in the court.

7

On 11th October Scott Baker J. at Lincoln made an order authorising the hospital to treat Baby J. within the parameters of the opinion expressed by Dr. W. in his report of 4th October 1990, subject to amendments to paragraphs 24, 25 and 26 made in the course of his oral evidence. This opinion, as amended and explained in the course of the hearing before this court, was as follows:

"24. I am of the opinion that it would not be in J.'s best interests to re-ventilate him [using a ventilation machine] in the event of his stopping breathing, unless to do so seems appropriate to the doctors caring for him given the prevailing clinical situation.

25. If he developed a chest infection I would recommend treatment with antibiotics and maintenance of hydration, but not prolonged [manual] ventilation.

26. [Various recommendations to take effect on the assumption that baby J. did not in the event have to face a critical condition as a result of his stopping breathing or otherwise.]"

8

The Official Solicitor has appealed against this decision. The parents do not formally appeal, but naturally and very reasonably feel that they are in a dilemma. Their solicitor took immense trouble to explain Scott Baker J.'s decision to them and at that time they were minded to accept it as being a decision taken in the best interests of their son. However the fact that the Official Solicitor has appealed has caused them to wonder whether they were right.

9

The Official Solicitor submits that there are two justifications for an appeal:—

(i) In Re C. (Wardship: Medical Treatment) [1990] Fam. 26 gives guidance on the approach which it is appropriate to adopt in relation to the medical treatment of children who are dying and whose deaths can only be postponed for a short while. In Re B. (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421 gives similar guidance in relation to severely, but not grossly, handicapped children with a shortened, but nevertheless substantial, expectation of life. In the Official Solicitor's view, the present case illustrates a different category falling between these two upon which guidance should be given.

(ii) Whilst Scott Baker J. rightly directed himself that he must act in what he considered to be the best interests of the child, in the Official Solicitor's submission he erred in that a court is never justified in withholding consent to treatment which could enable a child to survive a life-threatening condition, whatever the quality of the life which it would experience thereafter. This is the absolutist approach. Alternatively he submits that the judge erred in that a court is only justified in withholding consent to such treatment if it is certain that the quality of the child's subsequent life would be "intolerable" to the child, "bound to be full of pain and suffering" and "demonstrably so awful that in effect the child must be condemned to die". The quotations come from In Re. B. (supra). In this case, in the Official Solicitor's submission, this has not been shown.

10

Before considering these submissions, it is sensible to define the relationship between the court, the doctors, the child and its parents.

11

The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion ( Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582). This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment.

12

The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.

13

The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.

14

It follows from this that a child who is a ward of...

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