Re JM (A Child)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 07 October 2015 |
| Neutral Citation | [2015] EWHC 2832 (Fam) |
| Docket Number | Case No: FD15P00444 |
| Court | Family Division |
| Date | 07 October 2015 |
[2015] EWHC 2832 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD15P00444
and
and
and
John McKendrick (instructed by Hempsons) for the Applicant
Mike Hinchliffe (instructed by Cafcass Legal) for the 3rd Respondent
The 2 nd and 3 rd Respondents neither appeared nor were represented
Hearing dates: 25 September 2015 & 1 October 2015
This is my judgment on an application made by a NHS trust seeking permission to perform urgent surgery of a serious nature on J. By an order made by Holman J a Cafcass High Court team Guardian has been appointed to represent J. J's parents have not appeared before me or otherwise engaged in the proceedings.
J is 10 years old. He comes from Poland but has lived here with his parents and siblings for two years. He has a very rare aggressive cancer in his right jawbone. Its medical name is a craniofacial osteosarcoma. It is about 4 inches long and 1 1/2 inches wide. The unambiguous medical evidence given to me in writing and orally by a distinguished paediatric oncologist, Dr X, is that if it is not removed very soon then in 6 months to a year J will die a brutal and agonising death. She has spelt this out in remorseless and unflinching detail. J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.
The matter is critically urgent. There is a risk that the cancer may soon destroy the tissue plane between the tumour and the skull base. Dr X said to me: "if we leave it too long, that plane will disappear and an operation is no longer appropriate".
The cancer was first spotted by a dentist in the summer of 2014 and J was first seen by Dr X in September 2014. Between October 2014 and May 2015 he has undergone six cycles of chemotherapy, some as an in-patient. At the end of the sixth cycle it appeared that the tumour had stopped growing and was "relatively stable". So, one might ask, why is it necessary to proceed to surgery? The answer was given by Dr X in an exchange with me:
"Q I think the word I read was "stable", was it not?
A That is a radiological term that the MRI sizing is roughly the same as before, but for a radiologist to say that it is increasing in size it has to have increased by a large proportion.
Q I see.
A So stable is a radiology term, it is not a clinical term and both myself and ——
Q And you do not know, as somebody said, it could be metastasising, could it not?
A Yes, of course, it can. Yes. That tends to be a late ——
Q If it decides to go on the move again —it is not "if", it is when it decides to go on the move again ——
A Exactly."
The operation would be lengthy, lasting up to 12 hours. There is a 2% risk of mortality or morbidity in the operation. It would involve harvesting skin and bone from his leg in order to rebuild the removed jaw bone. The result would be that J may be affected by lameness in future. He would need false teeth inserted in the lower right quadrant of his mouth. As he grows his face may develop a lop-sided appearance. He may suffer from chewing problems and need to be on a softish diet in the long term. Above all of this is the estimate that he has a 55% – 65% chance of survival for 5 years. Therefore there is a 35% to 45% chance of a fatal cancer re-emerging in that period. This might be at the same site or elsewhere in the body, most likely the lungs. All of these statistics are based on adult patients. It is not known whether they are equally applicable to children as the incidence of this disease in children is so rare that there is insufficient data on which to found empirical conclusions and predictions. There are only a handful of children in this country with this cancer. Dr X has treated five or six in 16 years of practice.
I have seen photographs of a child who underwent this surgery. The facial swelling before the operation is very pronounced indeed. It is huge. At present J's swelling is about a third of that size. The photographs post-operation show extensive skin grafts under the jaw. J may be able to escape skin grafts. The child in the photographs does not appear greatly disfigured, although the result of the operation is clearly noticeable.
There is no doubt that the proposed surgery carries serious risks. However in the very clear opinion of Dr X they are risks which should be taken given the awful alternative. In her oral evidence she stated:
"I would be hopeful of a young boy growing into a very able teenager. So far he has not had major organ toxicity and, depending on his engagement and motivation, I would have an expectation that he will be walking, running —Mr. Z has put in his statement not playing football, but I think that he means competitively. I mean, he will be able to kick a ball around. So I would expect, externally, that he will look and feel like most teenagers. He will have a scarred face and there is a worry that there will be asymmetry of his face as he grows older. He will be engaged with my team and the surgical team as he grows up, so he still will be medicalised, because he will be caught up in routine surveillance, which goes on for years; so we check out his lungs and do a clinical assessment every two months for the first year, every three months for the next year, every four months for the next year, every six months after that, and then annually, so he will be engaged in his medical outcome, so that makes him different, perhaps, from some of his peers, but, going back to my general clinics of those who survive, then some people find this whole process, actually, is a constructive outcome rather than a destructive one.
Now, there are outliers of that. There are people who are very challenged by their cancer experience, who find it difficult to re-engage with their peers and who have ongoing psychological problems, but I would counter that with —so that may happen with other traumas in other walks of life. The only benefit to J, though, is that he will be in a very medicalised system that would hope to be able to support and manage problems that he brings to our attention. I would be very hopeful, if he survives, that his outlook is reasonable."
J's parents do not consent to the operation. Neither does J. He has written to me to say "I don't want the operation and there is not 100% [chance] to survive after the operation". To Dr X he put it more graphically. He screamed out: "I don't want to have it, because I don't want to have a foot in my mouth".
J's parents prefer to seek to treat him with Chinese medicine. The practitioner has not treated a cancer like this before and his technique is to treat the whole body to seek to promote overall wellness. The evidence before me is that even in China, where the use of Chinese medicine is widespread, surgery is the standard treatment for a cancer of this kind.
J's parents have explained to Dr X why they do not consent to the operation. She told me:
"They are very frightened and fearful of what their son will blame them for when he grows up, that they worry that he will be so disfigured that he will blame them for allowing the operation to go ahead. That is one of their stated words. But they have not heard that the prospect of him growing up is completely remote, completely impossible, if they do not have surgery. …It is not that I have not tried to say that, and I have been very explicit, but there is a difference between hearing the words and processing the words. …That is one of their issues. I think that they have struggled with the consent process."
The parents have sent a "Notice" to the court. In it they said that they would not be present at the original hearing fixed for this application on 25 September 2015. I therefore adjourned the hearing to 1 October and made an order in recitals where I urged the parents to attend. Those recitals stated:
"AND UPON the court expressing its real concern that Mr and Mrs M have not attended the hearing of this application, that the court wishes the consideration of the application to be a collaborative exercise.
AND UPON the court making clear that it is most anxious to hear the views of Mr and Mrs M"
Between 25 and 30 September repeated attempts were made to effect actual service of my order and other important documents on the parents. On 30 September the courier was told that the parents no longer lived at their address. It appears that J last attended school on 21 September. On 29 September 2015 J's father left a message on the school's answer-phone that the family were going to Poland to obtain a second medical opinion. It appears that on 6 October J's father left this country by ferry for France; the suggestion is that J and his mother left two weeks ago. The local authority has become very concerned. Plainly J is at risk of serious harm, a risk that grows with every day that passes. At a hastily arranged hearing on 6 October 2015 I acceded to the local authority's application that it be joined as a party to these proceedings. At that hearing the NHS trust, the guardian and the local authority were all agreed that a location order was needed to see if J and his parents were still here. I granted that order. Its point is to try seek to...
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