Re T (Wardship: Medical Treatment)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE ROCH |
| Judgment Date | 24 October 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1024-1 |
| Docket Number | FAFMI 96/1273/F |
| Court | Court of Appeal (Civil Division) |
| Date | 24 October 1996 |
[1996] EWCA Civ J1024-1
Lord Justice Butler-Sloss
Lord Justice Waite
Lord Justice Roch
FAFMI 96/1273/F
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE CONNELL)
Royal Courts of Justice
Strand
London WC2
MR. R. FRANCIS QC & MR. A. HOCKTON (Instructed by Messrs Pannone & Partners, Manchester, M3 2BU) appeared on behalf of the Appellant 1st Defendant
MR. D. HARRIS QC & MISS Y. COPPELL (Instructed by Susan Orrell, Manchester City Council, Manchester, M60 2LA) appeared on behalf of the Respondent Plaintiff
MR. G. MURDOCK QC & MR. H. LLOYD (Instructed by the Official Solicitor, 81 Chancery Lane, London, WC2A 1DD) appeared on behalf of the Guardian ad Litem
LADY JUSTICE BUTLER-SLOSS:
C. was born on the 10th April 1995 suffering from biliary atresia, a life-threatening liver defect. The unanimous medical prognosis is that he will not live beyond the age of two to two and a half without a liver transplantation. It is equally the unanimous clinical opinion of the consultants that it is in his interests to undergo the operation when a donor liver becomes available. The parents, who were trained as health care professionals and are both experienced in the care of young sick children do not wish the operation to take place. The main issue before the judge and on appeal before this Court is whether the Court should overrule the decision of the parents and consent to the operation. It arises as a specific issue in respect of which the Court is asked to exercise its inherent jurisdiction.
The background to this tragic and deeply worrying case is as follows. The parents are not married but have a stable relationship. They decided to apply for jobs in a distant Commonwealth country, (Country AB). The father went to Country AB in September 1995 while C. and his mother remained in England with her family. In February 1996 the mother took C. to visit his father but returned with him in April to England. They went back to Country AB in June 1996 and remain there now. The mother gave evidence to Connell J in the proceedings, the subject of this Appeal, by video link.
Once C.`s liver defect was diagnosed the medical advice at the local hospital was for him to undergo an operation called "Kasai" with the hope that this would improve his condition. The parents agreed and he underwent the operation at the age of three and a half weeks but the outcome was unsuccessful. The mother`s view of the proposed liver transplantation operation has been much influenced by the circumstances of the "Kasai" operation and the pain and distress caused to the baby both by it and by the consequential treatment. She and the father came to the conclusion, having sought medical advice, that if the "Kasai" operation proved unsuccessful, they would not wish their baby to undergo major transplant surgery.
The mother and child were then referred to one of the few hospitals which carry out liver transplantation operations, (which I shall call Hospital X). She met the consultant paediatrician, (Dr A) and her team and between September and November 1995 C. was assessed for his suitability and found to be suitable to have the transplantation operation. The mother was supplied with printed information about the operation,(called Liver Transplantation An Introduction Fact Sheet 10). It said that it was:-
"one of the most major forms of surgery. It is more complicated than other transplant operations on other organs and is only considered when other forms of treatment no longer maintain a good quality of life….
The team will discuss the results of the tests with the parents and tell them whether their child or baby is a suitable candidate for transplant. It is a very big decision to make on the part of the family and every assistance will be given to help to make the decision. If the family choose not to proceed with the transplantation once they are acquainted with the facts, the decision is respected. The child and family will continue to receive the necessary medical and nursing care to give him/her the best quality of life."
The mother did not consent to the carrying out of the operation. Dr A made it clear to the mother that it was in the best interests of C. that the operation be carried out and could not accept the mother`s reasons for refusing to consent. Inevitably the relationship between Dr A and the mother became strained. Dr A told the mother that the hospital would seek legal advice if the mother did not consent. The mother obtained a second opinion from a consultant paediatrician, Dr P. at Hospital Y, another centre of liver transplant operations. Dr P. set out his conclusions in a letter dated 6th December 1995 which was sent to the mother`s GP. Despite referring to adverse factors, which are no longer of significance in the light of later evidence, Dr P wrote:-
" I would consider an excellent result of transplantation to be many years of life with normal growth with no treatment necessary other than immuno-suppression, and there is certainly a good chance that such an outcome could be achieved."
He and his team strongly urged the mother to consent to the offer of transplantation at Hospital X, but said that if she and the father after further consideration did not consent, that decision should be respected.
C. was placed on the urgent transplant list at Hospital X. The mother then took him to Country AB against the advice of Dr A. Whilst there C. was under the care of a consultant paediatrician, but there are no facilities for a liver transplant operation in that country. A suitable liver became available at Hospital X while the mother was abroad with the baby, but the hospital was unable to get in touch with the mother and the opportunity was lost. Dr A`s team formed the view that the mother was not acting in the best interests of C. and they took legal advice. The matter was referred to the local authority of the mother`s area who involved their child protection team. The police in Country AB were informed and visited the mother. The child was found to be well and happy. They concluded, supported by the local social services that no action was needed. On the return of the mother and C. to England in April they were again referred to Hospital Y and Dr P was asked to take over the care of C. The mother continued to oppose the carrying out of the operation. Dr P discussed the matter with her at length on several occasions. He and his team formed the view that she was a loving and devoted mother, and, from her professional background, an unusually well—informed parent. They concluded that her reluctance to submit her son to the operation was founded in love and care for him. She was to the best of her ability discharging her duty of trust to her child and her decision should be respected.
The mother then returned to country AB with C. and on the 17th July 1996 the local authority sought the leave of the court to commence proceedings under the provisions of section 100(3) of the Children Act 1989. Their application was granted by Hollis J on the 27th August 1996. The Official Solicitor was appointed Guardian ad litem of the child and he instructed a consultant surgeon, Mr R from Hospital Z.
At the substantive hearing of the application of the local authority, Connell J heard evidence from Dr P, Mr R and Dr A, all distinguished consultants in this specialist field. Dr P accepted the opinion of Mr R as to the likely success of the transplant operation. In their reports and in their oral evidence the three doctors were unanimous that the prospects of success were good and that this operation was in the best interests of the child. Dr A and her team were prepared to carry out the operation without the consent of the mother if the court gave consent. The judge felt that the breakdown in the relationship between the mother and the team of Dr A made Hospital X unsuitable in the best interests of C. Dr P and his team, while strongly recommending the operation, would wish to respect the decision of the mother and would not be prepared to perform the operation without her consent. Mr R was prepared to carry out the operation but could not answer for his team in the event that the mother did not consent.
The local authority in their originating summons sought the answers to three specific questions:-
whether it was in the best interests of C. to undergo surgery for a liver transplantation,
for permission to be granted to perform the surgery notwithstanding the refusal of the mother to consent, and
for the child to be returned to the jurisdiction for the purpose of such surgery. They were neutral before the judge and the proposed surgery was strongly advocated by C.`s Guardian ad litem.
Connell J, on the 17th September 1996, in a careful, comprehensive and sensitive judgment reviewed the reasons for the mother`s refusal to consent and said at page 12:-
"In my judgment it has proved impossible for this mother to accept the main burden of the advice of the doctors, which is to the effect that if C does not undergo a transplant he will die within the next 12 to 18 months. Clinging to her own ability to provide expert care for this little boy and observing his apparent improvement in health, I am satisfied that she has not as yet really been able to face up to the clear and unanimous conclusion of the doctors that transplantation would be in his best interests. Whilst I can understand her difficulties, I conclude that her refusal to accept the unanimous advice of the doctors is not the conduct of a reasonable parent."
He answered the three questions posed by...
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