Re Wyatt (A Child) (medical treatment: continuation of order)
| Jurisdiction | England & Wales |
| Judgment Date | 2005 |
| Year | 2005 |
| Date | 2005 |
| Court | Court of Appeal (Civil Division) |
Medical treatment – Parental consent – Premature baby – Disagreements between parents and doctors – Court previously granting declaration permitting NHS trust not to undertake aggressive treatment – Parents seeking to set aside previous declarations – Whether open-ended declarations should have been made.
The child, C, was born prematurely at 26 weeks’ gestation and had suffered a long and complex medical history since her birth. There had been a series of disagreements relating to her treatment between her parents and the doctors looking after her. The NHS trust, on the doctors’ behalf, invoked the inherent jurisdiction of the court, and was granted a number of declarations, which, in essence, authorised the responsible paediatric medical consultants not to ventilate the child in the event that she suffered an infection which had led or might lead to a collapsed lung, and which proved resistant to antibiotics. Those declarations were not limited in time, and accordingly governed the child’s treatment for the indefinite future. On 21 April 2005, after a further hearing in which the judge again heard detailed medical evidence about her condition, he refused the parents’ application to discharge the declarations. However, he directed that the case should be listed for a review in October 2005 to consider whether the declarations should be further continued. He refused permission to appeal against the substance of the declarations, but gave permission to appeal on the issue as to whether the court should have continued the declarations or whether the trust and/or the court should have waited to make a decision on the matter until there was an immediate medical necessity for the declarations.
Held – As a matter of practice, judges should be cautious in making declarations involving seriously damaged or gravely ill children which were open-ended. It was not the function of the court to oversee the treatment plan for a gravely ill child. That function was for the doctors in consultation with the child’s parents. Judges took decisions on the basis of particular factual sub-strata. The court’s function was to make a particular decision on a particular issue. In the instant case, however, it was clear that the judge had thought through the implications of what he was doing, and had been entitled both to make and renew the declarations. The declarations were permissive, not mandatory, and it was clear that the trust’s current decision not to re-ventilate the child was being kept under clinical review and would be
discussed with her parents before it was implemented. Accordingly, the appeal would be dismissed.
Cases referred to in judgmentA (medical treatment: male sterilisation), Re[2000] 1 FCR 193, [2000] 1 FLR 549, CA.
Airedale National Health Service Trust v Bland[1994] 1 FCR 485, [1993] 1 All ER 821, [1993] AC 789, [1993] 2 WLR 316, [1993] 1 FLR 1026, CA and HL.
B (a minor) (wardship: medical treatment), Re (1981) [1990] 3 All ER 927, [1981] 1 WLR 1421, (1981) 3 FLR 117, CA.
D v East Berkshire Community Health NHS Trust; K v Dewsbury Healthcare NHS Trust; K v Oldham NHS Trust[2005] UKHL 23, [2005] 2 FCR 81, [2005] 2 All ER 443, [2005] 2 WLR 993, [2005] 2 FLR 284.
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, [1986] 1 FLR 224, HL.
Glass v UK[2004] 1 FCR 553, [2004] 1 FLR 1019, ECt HR.
J (a minor) (wardship: medical treatment), Re [1991] FCR 370, [1990] 3 All ER 930, [1991] Fam 33, [1991] 2 WLR 140, CA.
L (medical treatment: benefit), Re[2004] EWHC 2713 (Fam), [2005] 1 FLR 491.
NHS Trust v D[2000] 2 FCR 577, [2000] 2 FLR 677.
R (on the application of Burke) v General Medical Council [2004] EWHC 1879 (Admin), [2004] 3 FCR 579, [2005] QB 424, [2005] 2 WLR 431, [2004] 2 FLR 1121.
R v Portsmouth Hospitals NHS Trust, ex p Glass[1999] 3 FCR 145, [1999] 2 FLR 905, CA; affg (1999) 50 BMLR 269.
SL (adult patient) (medical treatment), Re[2000] 2 FCR 452, sub nom Re S (adult patient: sterilisation) [2001] Fam 15, [2000] 3 WLR 1288, CA.
Superintendent of Family and Child Service and Dawson, Re (1983) 145 DLR (3d) 610, sub nom Re SD [1983] 3 WWR 618, BC SC.
W Healthcare NHS Trust v KH[2004] EWCA Civ 1324, [2005] All ER (D) 94 (Jan).
Weberlist, Re (1974) 360 NYS 2d 783, NY SC.
AppealThe parents, Darren and Deborah Wyatt, appealed against the decision of Hedley J ([2005] EWHC 693 (Fam), [2005] 2 FLR 480) whereby he decided that ventilation of the child, Charlotte, was not in her best interests and continued declarations. The facts are set out in the judgment of the court.
David Wolfe (instructed by Leigh Day & Co) for the appellants.
David Lock (instructed by Mills & Reeve) for the first respondent.
Huw Lloyd (instructed by CAFCASS Legal) for the second respondent.
WALL LJ.This is the judgment of the court.
INTRODUCTION[1] This appeal concerns Charlotte Wyatt (Charlotte) who was born on 21 October 2003. The appellants are her parents, Darren and Deborah Wyatt. The first respondent to the appeal is the Portsmouth Hospitals NHS Trust (the trust). The second respondent is Charlotte herself, represented in the proceedings by her guardian, Teresa Julian, an officer of CAFCASS Legal Services.
[2] Charlotte was born prematurely at 26 weeks gestation and weighing only 458 grammes. She has suffered a long and complex medical history since her birth. An indication of the seriousness of her condition is the fact that she has never left hospital. Apart from one period when in July 2004 when she was acutely ill and was transferred to the intensive care unit at Southampton Hospital, she has throughout her life been cared for in the paediatric unit of a hospital operated by the trust.
[3] As a small child, Charlotte self-evidently lacks the capacity to make decisions about her medical treatment. In these circumstances, such decisions are, in the first instance, taken by those having parental responsibility for her (her parents) in consultation with, and on the advice of, the doctors treating her. In the event of an important disagreement between doctors and a child’s parents, however, either side can invoke the inherent jurisdiction of the Family Division of the High Court relating to children, and a judge of the Division will decide what course of treatment is in the best interests of the child.
[4] That is what has happened here. Unfortunately, there has been a series of disagreements relating to Charlotte’s treatment between Mr and Mrs Wyatt and the doctors looking after her. The fundamental nature of those disagreements and their critical importance for Charlotte led the trust, on the doctors’ behalf, to invoke the High Court court’s inherent jurisdiction over children. The consequence was that on 8 October 2004 Hedley J, exercising that jurisdiction, made a number of declarations about what was and what was not in Charlotte’s best interests.
[5] We set out the declarations made by the judge in full in [19] below. In essence, however, the declarations authorised the responsible paediatric medical consultants not to ventilate Charlotte in the event that she suffered an infection which had led or might lead to a collapsed lung, and which proved resistant to anti-biotics. Those declarations were not limited in time, and accordingly governed Charlotte’s treatment for the indefinite future. As at 8 October 2004, the prognosis for Charlotte was gloomy in the extreme, and she was not expected to survive the forthcoming winter.
[6] On 21 April 2005, after a further hearing in which Hedley J again heard detailed medical evidence about Charlotte’s condition, he refused Mr and Mrs Wyatt’s application to discharge the declarations. However, he directed that the case should be listed for a review in October 2005 (with a time estimate of half an hour) to consider whether the declarations should be further continued. He refused Mr and Mrs Wyatt permission to appeal against the substance of the declarations, but gave permission to appeal:
‘… on the issue as to whether the court should have continued the declarations … or whether (the trust) and / or the court should have waited until making a decision on the matter until there was an immediate medical necessity for the said declarations (sic).’
[7] In this court, Mr and Mrs Wyatt renewed their application for permission to appeal against the substance of the declarations. Their counsel, Mr David Wolfe, described the question raised by the renewed application for permission to appeal as the ‘best interests’ question. He described the question raised by the substantive appeal as the ‘timing’ question. We will adopt the same language in this judgment.
[8] We heard argument for a full day on 25 August 2005. At its conclusion we announced our decision. This was: (1) that permission to appeal on the best interests question would be refused; (2) that the appeal on the timing question would be dismissed; but that (3) the review of the continuation of the declarations directed by Hedley J should, if possible, be accelerated. To the latter end, we ordered that, in the absence of Hedley J, there should be a directions appointment before a different judge of the Family Division in September 2005. We reserved the reasons for our decision, which we now give.
WHAT THIS CASE IS ABOUT, AND WHAT IT IS NOT ABOUT[9] We think it very important that at the outset of this judgment, we should make clear both what the case is about, and what it is not about. The case is not, and never has been about the withdrawal of treatment from Charlotte in order to allow her to die. It is not about whether or not Charlotte should be subject to a ‘do not resuscitate’ (DNR) policy. Nor is it about the level of care provided for her. Charlotte has been profoundly disabled from birth, but she has been kept alive by the devoted care and treatment she has received from the trust’s nursing and medical staff. Without that care and treatment she would undoubtedly now be dead.
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