Re Wyatt
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE HEDLEY,The Honourable Mr Justice Hedley |
| Judgment Date | 21 October 2005 |
| Neutral Citation | [2005] EWHC 2293 (Fam) |
| Docket Number | Case No: FD04C01788 |
| Court | Family Division |
| Date | 21 October 2005 |
[2005] EWHC 2293 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Hedley
Case No: FD04C01788
Mr David Locke (instructed by Mills & Reeve) for the Claimant
Mr David Wolfe (instructed by Leigh & Day) for the 1 st Respondent
Miss Barbara Mills (instructed by CAFCASS Legal) for the 2 nd Respondent
Hearing dates: Thursday 13 th and Friday 14 th October 2005 at the Royal Courts of Justice
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 21/10/2005 It consists of ten pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
INTRODUCTION
This is the fourth judgment that I have given in this case. The two full earlier judgments given on 8 th October, 2004, and 21 st April, 2005 are both public documents, and I do not intend to repeat their contents here beyond what is necessary to explain my decision today. Although the Court of Appeal dismissed the appeals of Mr and Mrs W, they referred the case back to me as it appeared to them that there may have been changes in CW's condition significant enough to warrant re-consideration by the Court.
Of course, the condition of a child of this age is rarely static for long. It will either improve or deteriorate and hence my order of 21 st April had a review built into it. However, a detailed reconsideration of the medical evidence was advanced at the behest of the Court of Appeal. Experts previously instructed were consulted again, CW was further examined and new reports were submitted. The court was also greatly assisted by the written and oral evidence of Dr 'K', CW's new and current treating paediatrician.
I remind myself, as all parties have recognised, that there is no presumption in favour of the continuation of these (or any) Declarations, and that the burden of establishing the case for declaratory relief lies firmly on the hospital. I remind myself too, that on this occasion there was a high degree of agreement in the medical evidence.
CW's PRESENT CONDITION
In the words of her consultant paediatrician Dr 'K' "This is a highly unusual case for a large number of reasons, not least of which is that CW has defied all the previous case studies and predictions by staying alive." Much, however, remains the same. Although she has experienced some growth, she remains, in all respects, below the 0.4 Centile. She still has significantly damaged kidney function. She has some of the attainments of a baby of 2–3 months old. She has gross, irreversible brain damage. She still has the gravest chronic lung disease; indeed it was described by two very experienced experts as the worst each had ever seen in a living child.
All that said, however, there is, in relative terms, real progress to report. There has been some, albeit, very limited progress in her neurological functioning. There has been some slight growth and some weight gain. Most importantly there has been discernible progress in the condition of her lungs. Her requirement for oxygen has fallen to the point where she no longer need stay permanently in her headbox, but can be sustained by oxygen delivered through nasal cannulae. This has the practical effect that she may leave the ward and even briefly the hospital building. Dr 'K' now takes the view that she has a real prospect of surviving the forthcoming winter. Against that must be balanced the unanimous professional view that she continues to have a very severely impaired life expectancy.
Mr W told me that they are working towards CW's discharge home next March. Apart from her survival without further deterioration until then, her return home is dependent on two matters: first, the putting in place of an inevitably complex care package; and secondly, CW's dependency on oxygen being reduced from the present 40% —50% to at least a stable 30%, so that she does not require her headbox. That is an aim to which all are committed, and an outcome that all (including the court) would be delighted to see come about.
It will be apparent then, that although CW's improvement may be slight, it is nevertheless significant. The question is as to what implications, if any, this improvement has for her future treatment. The answer on a day-to-day basis is probably very little, except in the event of deterioration. It is on how that is to be managed that much professional attention has been focussed.
THE QUESTION OF VENTILATION
There has been very significant development on the issue of ventilation. Dr 'K', supported by the expert evidence, can now see circumstances in which he would be prepared to ventilate CW in the event of respiratory distress. He put it this way: "……..I feel that we have crossed an invisible line whereby I can say to the Court that there are now circumstances where, given the wishes of her parents and given the chances of a successful outcome, it would be justifiable for CW to be ventilated." It is equally apparent, from his evidence, that it is not in all circumstances that ventilation would be right.
Dr 'K' postulates three sets of circumstances in which the question of ventilation might arise. First, there might be a catastrophic event, such as cardiac arrest, or respiratory collapse consequent on a virulent infection. Of that he says, "In these circumstances I still feel that it would be wholly inappropriate to ventilate CW." Mr and Mrs W agree with that at least in respect of cardiac arrest. The second scenario is of a gradual deterioration in her lung function so that it slips back to where it was in October last year. Dr 'K' adds, "However, it would be far more serious because her condition would have been on a downward and unstoppable trajectory." Ventilation in those circumstances would be futile and thus wrong. There is, however, an intermediate third position, where there is an infection or other decline that may be thought reversible, described as "a reasonable or realistic chance" that we could bring her back to her present condition (or at least to a tolerable condition) as in March 2005. In these circumstances ventilation may well be justified.
However, Dr 'K' then went on, (and was once again supported in this by the expert evidence), to make it crystal clear both that it was quite impossible to define in advance the circumstances in which ventilation would be justified, and also that it would be quite wrong to prescribe a pre-determined length of time for which it would be right to ventilate. Everything would have to depend on the clinical picture at the time that the ventilation decision was required. His evidence was wholly unambiguous on both points and I have no doubt that he was right on both points. That being the case, I must now turn to the question of the Declarations.
THE PURPOSE OF DECLARATORY RELIEF
The purpose of Declaratory relief in this class of case was considered by the Court of Appeal in R -v- PORTSMOUTH HOSPITALS NHS TRUST exp GLASS (1999) 2FLR 905 (CA) and has been helpfully summarised by the Court of Appeal in this case: (2005) EWCA civ 1181. At Paragraph 112 of the judgment of the Court, Wall LJ says this:
In the overwhelming majority of cases in which the inherent jurisdiction of the court over children or incompetent adults is invoked, the "best interests" decision by the court determines the issue once and for all. The extreme example, of course, is the patient in a permanent vegetative state (PVS). A decision that it is lawful to terminate the administration of food and water to a patient in a PVS state, once implemented, is self-evidently determinative. Similarly, a declaration that it is lawful to treat a child in a particular way – for example by being given a blood transfusion or undergoing a particular operation contrary to the wishes of the child's parents – has no ongoing legal, as opposed to medical consequence. In such cases, the declaration binds once and for all. Similar considerations apply to an order that an incompetent adult be sterilized, or that an incompetent female patient should undergo a termination of pregnancy.
It is plain that that is no longer this case. It cannot be said that there is a clear medical issue to decide either as to whether to ventilate or, if once started, whether to stop it. All depends on the developing clinical picture. It is not even possible to do, as has been done in this case, to make declarations based on clearly anticipated facts, for that position can no longer be sustained by the medical evidence.
There was a suggestion that the court should make a partial Declaration limited to authorising the refusal of ventilation in the event that CW suffered a cardiac arrest. In my judgment there are three compelling objections to that course: first, all the medical evidence concurs in saying that a cardiac arrest is a remote contingency as a primary cause of collapse; secondly, the parents have made it very clear that in those circumstances they would not seek ventilation; and thirdly such a Declaration would be heard by those involved to speak from silence as...
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