Re Wyatt (A Child) (medical treatment: parents' consent)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Hedley,Mr Justice Hedley |
| Judgment Date | 07 October 2004 |
| Neutral Citation | [2004] EWHC 2247 (Fam) |
| Docket Number | Case No: FD04C01788 |
| Court | Family Division |
| Date | 07 October 2004 |
[2004] EWHC 2247 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Hedley
Case No: FD04C01788
Mr David Lock (instructed by Mills & Reeve) for the Applicants
Mr David Wolfe (instructed by Leigh & Day) for the 1 st Respondent
Mr Robin Barda (instructed by CAFCASS) for the 2 nd Respondent
Mr Michael Mylonas (instructed by Weightmans) for the Intervener
Hearing dates: 30 th September and 1 st October, 2004
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.
Introduction
On the basis of the unanimous medical evidence in this case, the issue in all probability is not whether this baby should live or die but how and when she should die. Charlotte has chronic respiratory and kidney problems coupled with the most profound brain damage that has left her blind, deaf and incapable of voluntary movement or response. It is very highly probable that she will during this winter succumb to a respiratory infection that will prove fatal. That said the unanimous medical evidence also recognises that in this area there is no such thing as certainty of prognosis of survival.
The fundamental damage to her respiratory system and kidney function is highly probably irreparable. The permanent damage to the brain is certain and irreversible. According to the medical evidence, Charlotte demonstrably experiences pain; whether she can experience pleasure, no doctor knows though most doubt it. She can be maintained in her present condition and everyone agrees that she should be.
The difference comes were she to deteriorate to the state that she would require artificial ventilation as everyone recognises that she almost certainly will. The unanimous medical advice is that to give such treatment would not be in her best interests. The views of the parents are that such treatment should at least be instituted and that could best be prepared for by the carrying out of an elective tracheostomy, that is to say the creation of an airway through the neck into the lungs.
What is the role of the court in all this? Any civilised society must have the means by which intractable disputes, whether between the state and the citizen or between citizens themselves are to be resolved. That is the purpose of the courts and the system of civil and family justice in this country. This kind of dispute is to be resolved by a Judge of the Family Division and whilst the judge will be more aware than anyone of his own limitations in deciding as profound an issue as this, decision there simply has to be. It may well be that an external decision is in the end a better solution than the stark alternatives of medical or parental veto.
Charlotte
Charlotte was born at Portsmouth Hospital on 21 st October 2003 at 26 weeks gestation and weighing 458 grammes (about 1 lb.). She was placed in an incubator and has in fact never left hospital. It is the unanimous view of the doctors that she is most unlikely ever to do so.
She has suffered a long and complex medical history since her birth. She has had severe respiratory failure requiring ventilation for most of her first three months. She has pulmonary hypertension resulting from the damage to her lungs with recurrent urinary tract infections and worsening kidney function. However in July 2004 she suffered a severe infection for which she was admitted to the paediatric intensive care unit at Southampton Hospital. Since this time she has exhibited a profound and persistent deterioration especially in her respiratory and neurological functioning.
Charlotte has been seen and assessed by many consultants apart from those having her care at Portsmouth and Southampton. For reasons that I explained in a judgment on 30 th September 2004 (and do not need to repeat here) all consultants and all other Trusts have been granted anonymity and will accordingly be referred to by letter. Trust B (an important paediatric tertiary centre) has made available three consultants. Dr A and Dr B are consultant paediatric intensivists whilst Dr C is a consultant paediatric neurologist. Dr F, a consultant paediatrician in respiratory medicine is employed by Trust A and Dr G (instructed by the parents) is a consultant paediatric intensivist and respiratory physician employed by Trust B. Although there were differences between them in relation to prognosis, there was no dispute as to Charlotte's present condition.
Charlotte's head size, weight and length were all below 0.4 th centile which in practice means as small as they can be. Her weight is increasing but that is not matched by growth in head circumference or length. The implication of head growth at so slow a rate was explained by Dr C. She said that it was indicative of brain damage and there was no longer any possibility of significant brain growth. She does not respond to stimulation, experiences involuntary reflex movements which are the most likely explanation for gripping an adult finger. She is, however, able to and does experience pain and distress. She will have minimal cognitive function but she will be able to experience pain of future treatment. She is very likely to develop epilepsy.
She requires very high levels of supplemental oxygen in order to be able to breathe. That means that she needs more than can be administered by nasal tube and in fact at present she needs to have her head covered with a transparent plastic box and receives (and needs) almost the maximum oxygenation that it is possible to give. If she is removed from the box she usually becomes visibly distressed and turns profoundly blue and takes a long time to return, on replacement, to her original condition. The problem is that these levels of oxygenation in themselves damage the lungs and that is why everyone recognises the near certainty of her needing ventilation to sustain physical life in the next few weeks or months.
Charlotte's kidney functions are also deteriorating and are incapable of repair. She will not be eligible for a transplant but will in due course, if she survives, require dialysis.
Prognosis is notoriously difficult. Should she survive, all accept Dr C's neurological prognosis and that in relation to her kidney function. All accept the chronic damage to her lungs and the pulmonary hypertension and the risks that poses to the cardio-vascular system which itself seems presently undamaged. All agree that she is highly likely to catch a respiratory infection which would require ventilation. The most optimistic prognosis for survival for 12 months is 25% although in oral evidence and when pressed the realistic figure was 5% or less. Hence my opening comment. That said, there can never be certainty.
The Parents' Views
The parents do not seriously question the medical description of Charlotte or its long term implications. Indeed I believe that they recognise the profoundly pessimistic medical prognosis and that that has a proper medical basis to it. Nevertheless they have not abandoned hope. They believe that they have some experience of Charlotte reacting to them and, although they recognise that there has been a recent serious deterioration in her condition, they believe that she still does so. They believe it is their duty to maintain life as they do not believe that she is yet ready to die.
In the course of his evidence to me Mr Wyatt, although accepting that his broad approach was 'life at all cost', did accept that there had to be limits. By that I think he meant that they would know when Charlotte was ready to die and would then allow her to do so. In fact he went further than that (and further than either of them had previously indicated) and said they would agree to a treatment plan and that, if after a few days of intensive ventilation no progress had been made, would contemplate agreement to its withdrawal. However, he made it clear that he would want to make that decision at the time and not irrevocably commit himself in advance. That is a view which it is not at all difficult to understand.
The parents had also spoken of hoping for a miracle. By that they meant not only the theoretical chance acknowledged by the doctors but also a miracle born of divine intervention. However, Mr Wyatt agreed with me that that would be wholly unaffected by any order that I might make.
The Doctors' Views
In coming to their views all the consultants were bound to take account of the British Medical Association Guidance "Withholding and Withdrawing Life Prolonging Medical Treatment". The current version was updated in 2001. That guidance is not binding on the court but it is guidance which is entitled to the closest attention and deep respect. As I have indicated, it was the unanimous medical opinion that artificial ventilation (if and when required) would not be in Charlotte's best interests. There was some disagreement as to whether this was because there was "no chance" or because there was "no purpose" but there was no disagreement over what was best.
It was also the unanimous view of the doctors that it is very important in these cases to work in partnership with the parents and both to keep them fully informed and to enlist their consent at every turn. That, of course, is not only good practice but a proper acknowledgment of the law in that parents, by virtue of Sections 2 and 3 of the Children Act 1989 hold parental responsibility; that includes the right to consent to or refuse treatment. No-one else has it save the...
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