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W (A Child) [2005] EWCA Civ 185

Application to appeal decision of Hedley J in Portsmouth NHS Hopsitals Trust v Wyatt

Neutral Citation Number: [2005] EWCA Civ 185

Royal Courts of Justice
The Strand
London, WC2A 2LL

Wednesday, 9 February 2005

B E F O R E:




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(Computer-Aided Transcript of the Stenograph Notes of
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MR DAVID WOLFE (instructed by Messrs Leigh, Day & Co, London EC1M 4BL) appeared on behalf of the Applicant Father
MR DAVID LOCK (instructed by Messrs Mills & Reeve, Birmingham B16 8PE) appeared on behalf of the NHS TRUST
MR ROBIN BARDA (instructed by CAFCASS Legal Services) appeared on behalf of CAFCASS
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(Approved by the Court)
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Crown Copyright
Wednesday, 9 February 2005

1. LORD JUSTICE THORPE: On 7 October 2004 Hedley J gave an agonisingly difficult decision in a life and death case involving a little baby born on 21 October 2003. He heard the case in public and delivered his judgment in public, and the case duly received a good deal of publicity. The order that gave effect to his judgment contained a paragraph 3(i) in the following terms:

"In the event that the responsible paediatric medical consultants reached 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."

That in legal language meant that the medical team were not bound to intervene to resuscitate Charlotte in the event of a medical crisis.

2. On 28 January 2005 Hedley J heard an application, which had not been formally issued but which it was agreed between the parties he should determine that day, for the deletion of paragraph 3(i) of his previous order. He refused that application and accordingly Charlotte's parents applied to this court for permission to appeal. The application was put before my Lord, Wall LJ, who directed this oral hearing with appeal to follow if permission granted.

3. It is important to see this permission application in the context of the litigation chronology. The court's involvement was certainly not likely to end with the judgment of 7 October. Indeed on 15 December, only nine weeks later, an application was issued by the Hospital Trust for an order which would effectively enlarge their discretionary control and commensurately reduce the extent of the parents' ability to determine the continuing medical treatment. The hearing on that day resulted in an order which provided that the applicant Health Trust should file a treatment plan by 21 December; that the parents should file their responsive treatment plan by 7 January; that there should be permission for one medical expert on each side and that the matter should be returned to the judge on 28 January with a time estimate of one hour.

4. When the case returned on the 28th the timetable enshrined in the order of 17 December had proved impossible to keep. Accordingly on the 28th, as well as refusing the application to which I have already referred, the judge made an order which essentially revised and expanded the earlier timetable. He said that the parents might adduce the evidence of up to five experts and that the Trust and the guardian ad litem might adduce evidence of up to two experts. He said all the evidence was to be served by 16 February, and implicitly, but not on the face of the order, he provided for a substantive hearing before him during the current law term. We have today been told by Mr Wolfe, for the parents, that the fixture will commence on 14 March in Cardiff and that the parties have agreed two days for that further hearing.

5. The evidence relied upon by Mr Wolfe for the deletion of paragraph 3(i) of the October order has been expanded in that he has today laid before the court a very brief report by the Triangle Consultancy, which is one of the sources of expertise to which the parents have resorted pursuant to the permission built into the order of 17 December. The Triangle makes it plain that they will be filing their full report by 19 February, and in a single paragraph they give an interim report which is extremely encouraging, indicating that during their visits to date Charlotte has been aware, alert, active and responsive, looking and seeing and following things with her eyes, reacting to loud noises and showing pleasure at human contact by attending, smiling and kicking. Equally, Mr Lock for the Health Trust has put before the court a report by Dr P compiled yesterday in which Mr Wolfe stresses a paragraph recording that Charlotte's day-to-day existence is not miserable in the way that it was in September 2004; she can go several days without needing sedation and when she is a little distressed now usually settles with some mild medication.

6. So Mr Wolfe in an eloquent and scholarly skeleton submits that the judge has essentially applied the wrong test, or, alternatively, investigated the wrong aspect, in reaching the decision to refuse the application. That he has expanded orally, and his essential submission is to be found in barest summary in paragraph 53 of his skeleton argument, where he says:

"The judge was thus wrong to focus here on Charlotte's 'underlying condition'. He should, instead, have focussed on those aspects of her life which had led him to conclude in October 2004, that her life was, and would remain, 'intolerable' - the constant pain and distress, the need for constant sedation, the unremitting need for the head box, the apparent futility of stimulation and so on; and the dramatic change in them now."

That paragraph concludes a legal analysis in which Mr Wolfe seeks to demonstrate that the focus must be upon intolerability and not upon underlying condition. He further submits, in my view rightly, that underlying condition does not necessarily lead to a conclusion of intolerability. He essentially says that the emerging evidence clearly requires a review of Charlotte's underlying condition, and so much was recognised by Hedley J in his judgment of 28 January. Accordingly, says Mr Wolfe, between now and a proper conclusion reviewing possible amelioration of the underlying condition, it would be a nightmare for the parents were Charlotte's life to be lost simply because she was denied resuscitation in crisis. Those arguments are of course attractive and were very attractively advanced by Mr Wolfe.

7. However, it seems to me that they must be seen in the context of the litigation history and in the context of the very clear arrangements that the judge has made for further investigation, and presumably for at least a preliminary decision on the possible change in the underlying condition within approximately five weeks of today. Of course the arguments that Mr Wolfe seeks to draw from the authorities will be available to him at the fixture on 14 March and will no doubt be advanced then as forcefully as they have been advanced today.

8. It does not seem that it was the basis of Mr Wolfe's submissions to the judge on 28 January, for Hedley J, having set the scene in the first nine paragraphs of his judgment, then recites in paragraph 11 and following Mr Wolfe's submissions, before recording Mr Lock's submissions in paragraph 15. He then in the following four paragraphs of his judgment delivered his conclusion. It is I think worth reading in full both paragraphs 16 and 19 of his judgment. In paragraph 16 he said:

"How do I approach this? It seems to me that there are two propositions 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."

Then having so directed himself, he expressed his conclusion thus in paragraph 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 explicit 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."

9. In my opinion, despite Mr Wolfe's analytical criticism, this is a discretionary determination which is not the product of any misdirection and which is lucidly explained. The application for permission must be seen in its context: the court at first instance has appointed a two-day fixture for review in the very near future and in the interim the judge is available to the parties should anything necessitate an earlier judicial determination.

10. For all those reasons, I would refuse this application for permission.


12. LORD JUSTICE WALL: I also agree.
(Application refused; no order for costs).