The Newcastle Upon Tyne Hospitals NHS Foundation Trust v H (A Child by his Cafcass Guardian)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 04 March 2022 |
| Neutral Citation | [2022] EWCOP 14 |
| Year | 2022 |
| Docket Number | Case No: FD21P00855 |
| Court | Court of Protection |
[2022] EWCOP 14
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
Case No: FD21P00855
Ms Claire Watson (instructed by Ward Hadaway) for the Applicant
Mr Neil Davy (instructed by CAFCASS) for the First Respondent
Ms Maggie Jones (instructed by Ben Hoare Bell) for the Second Respondent
Mr B (as a Litigant in Person)
Hearing dates: 1–2 nd and 4 th March 2022
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.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This application concerns H, who is now one year old. In June 2021, he sustained a profound hypoxic brain injury following a drowning incident, whilst being bathed at home by his mother. The extent of the brain injury has been characterised as ‘devastating’, consequent upon cardiac arrest and a delay of 29 minutes before circulation could be recovered. H is currently intubated and ventilated in Paediatric Intensive Care (PICU). The consensus of evidence, both independent and within the clinical team, has concluded that H's treatment is now futile and burdensome. The applicant Trust seeks declarations that it would be lawful and in H's best interest:
i) That mechanical ventilation should be withdrawn;
ii) That cardio-pulmonary resuscitation and resuscitation drugs including inotropes, should not be given in the event of a cardiopulmonary arrest;
iii) That he should be provided with such treatment, palliation and nursing care as advised by the responsible medical and nursing practitioners, whether at hospital or elsewhere, to ensure that H suffers the least pain and distress and retains the greatest dignity.
H has been represented by his Guardian in these proceedings. She has described this as a ‘truly tragic case’ and expresses “the greatest of sympathy for the position that H's mother and father find themselves in”. With great reluctance, but nonetheless, with clarity the Guardian considers that the declarations should be granted in the terms sought. She analyses this to be in H's best interests.
The Mother (MRS A) and Father (Mr B) resist the applications. Recognising the force of the medical evidence in support of the application, they contend that insufficient weight has been given to some of H's recent behaviours and responses which they argue ought to be viewed as markers of an improving clinical situation. They ask that H “ought to be given more time” in order that these responses and behaviours might be more thoroughly assessed.
Background
H was admitted to PICU at the end of June 2021. The history given, by the parents, was that he had suffered a drowning event at home whilst in the bath. They related that H was wearing an inflatable device. Mrs A stated that she had left the bathroom to get a towel. A short time later, Mr B entered the bathroom and found H face down in the bath with no pulse. He pulled H out of the bath, placed him on a sofa and commenced cardiopulmonary resuscitation (CPR). The parents telephoned 999 but Mr B, recognising the gravity of the situation, began the journey by car to the local hospital, which was not that far away. There was no CPR during this journey (approximately 6 minutes). The family were met, enroute, by the paramedic team. When assessed by the paramedics H was still in cardiac arrest and had no sign of electrical activity from his heart (asystole). CPR was commenced and H was transported to his local hospital where resuscitation continued in the Emergency Department. Return of spontaneous circulation finally occurred 29 minutes following the 999 call. Manifestly, this is a long period of time without any effective circulation.
Initial stabilisation was carried out at the local hospital. H was intubated and ventilated. He remained unresponsive with fixed dilated pupils. A CT scan of his head was carried out, which showed no significant abnormality. H was then transferred to PICU by the regional paediatric critical care transport team.
When H arrived in PICU, the neuroprotective critical care measures which had been commenced at the local hospital were continued. H was kept sedated, given muscle relaxant medication, and nursed in a head up position; ventilation and blood pressure were carefully controlled; blood sugar and temperature were kept as normal as possible. These measures are constructed to maintain the patient in a stable physiological state, to help reduce secondary brain injury and to give the brain the best possible chance to recover. The practice in this PICU, is to continue with these measures for a period of at least 48 hours, after which they are stopped, and the patient can be assessed clinically. All this was followed in H's case. Later, as I will record, Dr Daniel Lumsden, Consultant Paediatric Neurologist, conducted an independent report assessing H's treatment and prognosis. Dr Lumsden, in his evidence, described these neuroprotective measures, at this early stage, as a paradigm of good practice. The hospital is well regarded nationally.
On the 27 th June 2021, there were some concerns regarding possible seizure activity detected on a bedside 2-channel electroencephalogram (EEG). These resolved when H was treated with anti-epileptic medication. On the following day H had a more detailed formal EEG which did not show any further seizure activity. Neuroprotective measures were lifted on 29 th June 2021. H's muscle relaxant was discontinued. His sedative medication was reduced more slowly, due to concerns regarding seizure activity, and was finally discontinued after a further 48 hrs. His antiepileptic medication was optimised as his sedative infusions were reduced. An MRI scan of H's brain was carried out. This was reported as having overall appearances in keeping with an extensive hypoxic ischaemic brain injury. H's parents were updated regarding the result of the scan by the responsible PICU consultant. They were informed that this result meant that H was likely to be very severely affected by his brain injury.
On 30 th June 2021, H was assessed formally by a consultant paediatric neurologist. H was on a low dose of sedation, which would have permitted him to show response on examination. He remained deeply comatose and did not respond to painful stimulus. His Glasgow Coma Score was 3. It important to highlight that this is the lowest possible score on the scale and reflects the extent of H's unresponsive condition. Later, in his evidence, Dr Lumsden described this as being the highest end of the spectrum of unresponsiveness.
H's pupils were reacting “very slightly if at all”. In her report, dated 10 th November 2021, Dr W, a Consultant Paediatric Intensivist, records the following:
“Basic reflexes were not present (no cough or gag reflex; no corneal reflex). H showed some evidence of being able to take some breaths, but his breathing pattern was very abnormal and irregular. These clinical findings showed that H had suffered an extremely severe brain injury and was unlikely to survive. H's parents were again updated, on this occasion by both the intensive care and neurology consultants. They were understandably upset regarding the clinical evaluation. On 01/07/21 they remained upset but informed us that they were praying for a miracle to happen and that H's heart was beating, and he was alive. They asked for a letter from the hospital to support H's maternal grandfather travelling to the UK and this was provided. Over the next few days H had some seizure activity requiring medication and needed ongoing ventilation and support. Other than this his condition remained the same.”
At the end of his first week of admission, H had a raised temperature and the secretions from his chest were described as “ thick”. An infection was suspected. As I have been told, this is not at all unusual for ventilated children in PICU. It is important to bear this in mind because it becomes one of the factors when evaluating H's best interests at this hearing. Respiratory and blood cultures were both positive for infection and H was treated with appropriate intravenous antibiotics.
Over the next week H continued to be treated for infection. Whilst his seizures had settled, there was no other significant change in his condition. He continued to show no spontaneous movements. His breathing pattern remained very abnormal but over a number of days became more regular. On clinical assessment it was considered to be reasonable to conduct a trial of extubation, i.e., removing the breathing tube to see if it was possible for H to manage without it. This was discussed with H's parents and they agreed to the investigation. It is important to record that they were both very clear that should H not be able to breathe independently, either at this trial or at a later point, they would always wish him to be supported with a breathing tube and ventilator.
H was extubated on 9 th July 2021. Failure was absolute. He was clearly unable to breathe effectively, and his oxygen saturation level dropped rapidly. Whilst he had “good respiratory effort” at the time, the...
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