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Home > Judgments > 2005 archive

Portsmouth NHS Trust v Charlotte Wyatt [2005] EWHC 117 (Fam)

The court order making it lawful for doctors not to resuscitate a seriously ill baby if she stops breathing must remain in force while further enquiries are made.

Read a digest of this judgment

FD04P01788

Neutral Citation Number: [2005] EWHC 117 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Friday, 28th January 2005

Before:

MR JUSTICE HEDLEY

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PORTSMOUTH HOSPITALS NHS TRUST

v

(1) CHARLOTTE WYATT

(To be represented by CAFCASS)

(2) DARREN WYATT and

DEBORAH WYATT

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MR DAVID LOCK (instructed by Messrs Mills and Reeve) appeared on behalf of the Local Authority.

MR DAVID WOLFE (instructed by Leigh Day & Co) appeared on behalf of the Parents

MR ROBIN BARDA appeared on behalf of CAFCASS

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JUDGMENT

(As Approved)

Transcribed by Harry Counsell & Co

Cliffords Inn, Fetter Lane, London EC4A 1LD

Tel: 020 7269 0370

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MR JUSTICE HEDLEY:

1. I am giving this judgment in open court. May I please remind everyone of the reporting restrictions that are in place; in particular, in relation to the naming of any medical practitioner involved in the proceedings.

2. On 8th October of last year, I gave judgment at the end of a trial in relation to the young child, Charlotte, and, as a result of that judgment, an order was made which included the following provisions in paragraph 3 and subparagraphs (1) and (2).

" (1) In the event that the responsible paediatric medical consultants reach a decision that Charlotte's medical condition shall have deteriorated to such an extent that she is unable to maintain oxygen and carbon dioxide exchange, it shall be lawful for responsible paediatric medical consultants to reach a decision that she should not be intubated and/or ventilated.

(2) Whilst the responsible paediatric medical consultant may reach a decision whether it is appropriate to administer continuous positive airways pressure, known as CPAP, to help Charlotte's airwaves open and to ease Charlotte's breathing, if she is visibly distressed by CPAP it shall be lawful for the responsible paediatric medical consultant to reach a decision that CPAP shall be withdrawn."

3. I propose to focus on the first of those two declarations, relating, as it does, to ventilation, because they are at the heart of the issue that has to be decided today.

4. It is important to make clear what is the effect of a declaration. A declaration has no impact whatever on the duty of a medical practitioner to act at all times in the best interests of any patient as discerned by that medical practitioner. What the declaration does is to grant the protection of the court to the medical practitioner if the medical practitioner arrives at a specific conclusion about the best interests of a child, but it does not prohibit the medical practitioner from arriving at any other conclusion. Likewise, if the declaration is not in place, that, too, has no impact on the duty of a medical practitioner nor, in particular, does it obligate any medical practitioner to comply with the wishes of parents if such are contrary to the medical practitioner's judgment as to best interests.

5. The original orders were made having heard and read extensive medical evidence about Charlotte's condition. It is now said that there are changes in that condition. There undoubtedly are changes to be seen. The question is whether the visible changes reflect any change in the underlying causes that give rise to her disability. That there are visible changes is beyond doubt. They can be found in the letters written by the Hospital Trust. They are described in the statement of Mr Wyatt, dated 26th January, which has been put before me and which I have read, and they are set out in the medical report of Dr C, a consultant paediatric neurologist, dated 27th January 2005, arising out of her recent examination of Charlotte. Dr C described having met Charlotte on two occasions and says this.

"On both occasions that I have met Charlotte, she has been on a good day. However, contrary to my visit in September 2004, she now generally has good days whereas some months ago she seemed for the majority of her time to be in a state of distress and discomfort. She was also at that time requiring regular sedative medication. Charlotte is currently not receiving any sedative or regular analgesic medication. Charlotte is usually awake for most of the day; indeed she is often wakeful during the night and does not sleep for long periods. Her oxygen requirement has decreased but is still very high in that she is maintaining 70 per cent oxygen in her head box. She can be taken out of the head box to sit in a supportive chair and requires oxygen supplied by face mask during these periods. However, this does mean that Charlotte can be stimulated, she can also be picked up out of the chair, held and cuddled with the oxygen mask held to her face."

6. Later on, in the same report, Dr C says this.

"Charlotte will startle to a loud noise, such as tapping on her head box or her father clapping his hands. She does not, though, turn in the direction of a sound. She generally has roving eye movements, but will appear to fixate, say, on her father's face or a bright object but she does not maintain this and will not consistently follow. She will frown and grimace but does not smile."

7. It is right to recall that Mr Wyatt has seen changes greater than these, but for these purposes, as will be apparent in a moment, I propose to work on the basis of the observations of the outside paediatric neurologists. Thus, it can be seen that there are visible changes, but, according to Dr C, they do not indicate any changes in Charlotte's underlying condition. Dr C says this.

"At the age of one year (corrected for prematurity) Charlotte has shown minimal if any developmental attainments. She can undoubtedly perceive light from dark and may respond to sound. She remains oxygen dependent and it is this that precludes any more elaborate assessment or investigation. However, I do not think that electro-physiological or radiological methods will provide any additional prognostic information. The complete lack of brain growth over a period of at least three months sadly is an unequivocal indicator of prognosis".

8. A little further down she says.

"Charlotte has grown little and her brain not at all since I last assessed her. She has a slightly lower oxygen requirement and is largely calm rather than being distressed. However, this latter change, whilst very gratifying and undoubtedly important, does not unfortunately infer or imply neurological improvement. On the contrary, the lack of brain growth confirms my earlier views as to Charlotte's prognosis."

9. That evidence establishes visible changes without indicating significant change in the underlying causes. However, where visible changes have occurred, it is right that there should be further investigations to see whether there has, in fact, been any changes in the underlying condition and, accordingly, in the private hearing I authorised the instruction of further experts to investigate those matters and for the matter to be restored to me before Easter for the purposes of seeing where that evidence has led.

10. Those changes have led to Mr Wolfe, on behalf of Mr and Mrs Wyatt, making an application that, pending those further enquiries, I ought to stay or put into abeyance the declarations that I made on 8th October. Although no notice was given of this application, it is conceded on all sides that the court ought to hear and determine it, and I agree with that.

11. It seems to me, as I approach that application, as I say, that I need to keep in mind the whole picture in relation to Charlotte as it appears in my judgment of 8th October. Mr Wolfe's submissions are attractively simple. What he says is this. Now that the court has authorised further investigations to see whether the visible changes are reflected in any changes in the underlying condition, then the court ought to do all it can to preserve life during the time that those investigations are undertaken and before they can be evaluated. He says that there is a strong presumption in English law in the direction of preserving life. He draws my attention, not just to the cases which are considered in my judgment of 8th October, but to one which had been decided then but was not available, known as W Healthcare NHS Trust v KH, H & PH. It has a Neutral Citation Number of [2004] EWCA Civil 1324. I have had an opportunity of considering in particular the judgment of Brooke LJ. I make these two observations. The first is that that was a case wholly different on its facts and involved not a child but an adult. Secondly, I think that one should be extremely cautious, having regard to the contents of paragraph 23 of that judgment, of reading into the judgment any sustained consideration of the law in this particular field. But, having said that, I do have in mind paragraph 30 of the judgment, which is in these terms. Brooke LJ says:

"These cases are always agonisingly difficult. Nobody would wish to be in a position in which members of this family find themselves. Judges have to apply the law as they find the law. English law as it stands at present places a very heavy burden on those who are advocating a course which would lead inevitably to the cessation of a human life."

12. Again, that phrase has to be read in the context of the facts of that particular case. Nevertheless, the proposition is there and is one to which the court must give weight.

13. In considering those matters, of course, I need to keep in mind precisely what it is that I am concerned about; that is to say the declaration that relates to ventilation and intubation. It is, I think, important that I should remind myself of the contents of paragraph 29 of my original judgment, in which this was said:

"The strong probability is that Charlotte will contract a respiratory infection which will prove fatal irrespective of any treatment however aggressive. On the other hand, that does not apply to every infection and aggressive treatment by ventilation may, and it is only may, restore her to her present condition, for no more than that can be achieved. In my view, the prospects of her surviving for 12 months are minimal although non existent. Even if she is recommended for tracheotomy, she may not survive transfer, for such an operation cannot be done at Portsmouth, or anaesthetic. If ventilated, she may not survive anaesthetic or her lungs may be fatally damaged by gas pressure or the pulmonary hypertension may cause a break down of the cardiovascular system. All treatment is fraught with risk, hence the prognosis of minimal prospects of survival. Yet no one can say for absolute certain that she will not survive another year however much the probabilities are against her".

14. That paragraph needs to be read in the context that sustained ventilation would itself require a transfer to another hospital.

15. The application to stay the order is resisted by Portsmouth whose resistance is supported somewhat cautiously by the Guardian. The basis of the resistance is, first, that the court should not change its own orders without clear evidence requiring it to do so; secondly, that the evidence here, however welcome it may be, does not go to the essence of Charlotte's condition so as to justify interference with the present order. In particular, it is said, that the evidence of change does not address her capacity to survive aggressive or invasive treatment of the sort to which I have just referred and, accordingly, the court should not suspend or stay the order.

16. How do I approach this? It seems to me that there are two propositions that the court ought to acknowledge. The first is its delight in the improvements that have been observed in Charlotte. Nobody who knows this case could derive other than pleasure from that. Secondly, the court needs to have in mind the presumption in favour of preserving life. But those two propositions both require immediate qualification. That described improvement has to be qualified by the fact that at present I have no evidence to support any proposition that that is reflected in a change in the underlying condition from which Charlotte suffers. Further, the presumption in favour of life has to be qualified by seeing it in the context of the aggressive and invasive interventions that are specifically under consideration which may help to preserve life but which may equally destroy it.

17. I have had an opportunity, albeit brief, to reflect with care on the arguments that have been addressed to me. I acknowledge specifically that future evidence may require the court to revise the original declarations that it has made. Equally, future evidence may confirm the rightness of those declarations. At this moment that remains an unresolved issue.

18. With that consideration in mind, I have nevertheless arrived at the conclusion that I am not prepared to stay the order during the period between now and when the case is next before me. The reasons for my refusal are these.

19. First, the declarations one way or the other do not derogate from the best interest duty of the medical practitioners which they are required independently to exercise as and when any crisis might arise. Secondly, the court should not vary orders of its own without clear grounds for doing so. Everybody acknowledges that, at the moment, no such clear grounds exist. I think that it follows from that that the court ought not to stay an order pending investigations unless there is at least a reasonable basis for and prospect of establishing those clear grounds. Although I acknowledge the improvements to which I have made reference in this judgment and expressed my pleasure in them, I have still considered that, taken together, they do not justify a stay in relation to the specific issues of invasive and aggressive treatment involving intubation and ventilation when they are set in the context of the evidence as to Charlotte's underlying condition and her capacity to survive such aggressive or invasive treatment. Accordingly, in my view the present position should be maintained on the basis of the picture that I have at present, whilst, as I say, recognising that that picture may in due course require a revision. There is one sense in which I am quite glad to have reached that conclusion, because I entertain serious concerns that a removal of the stay would all too easily, however much the court disavowed it, be seen as the expression of an implicit view by the court that intubation or ventilation should take place. That would be only to raise wholly false expectations on all sides. I propose to allow the investigations to continue. I propose to leave the specific declarations in place whilst they do so and, as I say, I reiterate at the risk of tediousness, the fact that, if a crisis arises, which all hope it will not, then every doctor involved in it is under a duty to use his or her skill and judgment to act in accordance with the best interests of the child as they then appear to be. This court does not, as it were, lay down the course that ought to be followed. All it does is indicate that one course if chosen is lawful.

Do we have an order available or not?

MR WOLFE: Yes, but I am afraid that we have only one copy. (Handed) That was plainly what we drafted before we came in.

MR JUSTICE HEDLEY: This does not actually contain a listing. Do you want it to?

MR WOLFE: I think where we arrived at before was not.

MR JUSTICE HEDLEY: You are quite right, we did, on the basis that it was inevitably going to be in someone's interest to seek ...

MR WOLFE: Yes, my Lord.

MR JUSTICE HEDLEY: I am just going to add to that "wherever sitting and by video link if so desired". In other words, if it is a short matter, which is not likely to be seriously contentious, then there is no point in everyone travelling to wherever I am, unless they wish to do so.

Mr Wolfe, do you want me to include a determination on the application you have made today?. Because the application has not been made, in one sense I do not have to, but, if you want me to on the face of the order, I will.

MR WOLFE: Yes, my Lord, please do. In this jurisdiction, I am not sure that I need, but, if I do need, I seek permission from my Lordship to appeal this matter to the Court of Appeal if my clients so wish.

MR JUSTICE HEDLEY: I am not sure is the answer, Mr Wolfe, but, if you did need permission, you may or may not be familiar with, I think that the case is called O and A, which indicates clearly that in this jurisdiction, where effectively a discretion is being exercised, leave to appeal should be sought from the Court of Appeal and not from the judge who exercised the discretion. If I need to say "leave to appeal refused, you must seek it from the Court of Appeal", I will or, if it is just a matter of my inviting you to go straight to the Court of Appeal on the basis that the answer on that basis is inevitable, I will do that.

MR WOLFE: I am happy. I am more used to a jurisdiction which works the other way around in that you have to seek it.

MR JUSTICE HEDLEY: It may well be that you do, but frequently in this jurisdiction people do not. If the view is that I needed to have been asked first, I will refuse it, so it is clear. But I make it crystal clear on the basis that, because I have exercised the jurisdiction, it is for the Court of Appeal to decide whether they wish to entertain it or not.

MR BARDA: The only reservation about the draft is that it provides that all the expert evidence be subject to the Guardian holding back to see whether ...

MR JUSTICE HEDLEY: Frankly, Mr Barda, in this case the parties are quite clear about what they are trying to-do. I am perfectly willing that there should be consent variations to the timetable. If your position is that you wish to see the joint report before deciding whether you wish to take the matter further with an expert of your own, and provided that other people agree to that and given the speed at which experts have worked in this case, it does not seem to me that there is a serious prospect of unacceptable delay. I would encourage the parties to feel free to agree variations to the timetable. I think that the only thing that I am saying is that whatever happens the case ought to be back before me before the end of this term; in other words before Easter.

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