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Wyatt v Portsmouth NHS Trust (No 3) [2005] EWHC 693 (Fam)

Confirmation that seriously ill baby should not be resuscitated if she stops breathing.

Wyatt v Portsmouth NHS Trust (No 3) [2005] EWHC 693 (Fam)

Family Division: Hedley J (21 April 2005)

Confirmation that seriously ill baby should not be resuscitated if she stops breathing.

This hearing, the third before Hedley J (see [2005] EWHC 117 (Fam), was an application to discharge the declarations originally made in October 2004; it was accepted by all parties that (1) it was for the NHS Trust to show that the declarations should continue, and (2) there was no presumption, legal or evidential, that they should do so.

The area of dispute before this hearing was narrow but fundamental: medical evidence presented on behalf of the Trust suggested that it was 'virtually inevitable' that some respiratory crisis would arise, and Charlotte would not survive such an event, whatever aggressive invasive treatment was tried; further medical evidence drew attention to the improvement in Charlotte's condition and suggested that, in the event of infection, ventilation would be justified, particularly in view of the fact that the parents wanted everything possible to be done.

In this case, there were two questions to be answered in the light of the 'best interests' test: (1) in the event of an overwhelming respiratory infection, whether it would be right to attempt or refrain from aggressive intervention by way of intubation, transfer to a tertiary centre and ventilation; and (2), if the indications were that such treatment should be withheld, should that decision be made now or should it await the crisis and then be resolved at that time.

Held, dismissing the application to discharge the declarations, that on all the evidence it was unlikely that Charlotte would survive a crisis irrespective of full ICU but, even if she did, it would be at the cost of significant deterioration in her condition to the point where life would again be intolerable on a day-to-day basis. Further, it was appropriate that a decision should be made now, since the issue concerned was a fairly precisely anticipated medical emergency, namely a major respiratory crisis, and it would be wholly contrary to Charlotte's best interests for that crisis to be overshadowed by a major legal conflict which was highly unlikely to raise any issue that had not already been canvassed before the judge.

Hedley J decided that, on the issue of resuscitation of a seriously ill child and notwithstanding the conflict of medical opinion, in the event of the child surviving after such medical intervention, the resulting deterioration caused by the treatment would make life for her intolerable on a day to day basis. Therefore the previous declarations were to continue.

Claire Wills-Goldingham, Barrister, Albion Chambers