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An NHS Trust v SR [2012] EWHC 3842 (Fam)

Application by an NHS Trust in respect of the medical treatment of N, a boy aged 7, suffering from a malignant brain tumour.

The issue in the case was whether N, who had had surgery, should be treated with radiotherapy and chemotherapy thereafter. That course of action was recommended by N's treating physicians and supported by N's father and CAFCASS Guardian (representing N in the proceedings), but opposed by N's mother.

Following N's surgery, the treating physicians became concerned that the mother was disengaging and in due course the optimum time for starting radiotherapy passed. On 3 December the NHS Trust applied without notice for declarations regarding N's treatment and an order was made (inter alia) for the mother to attend court the next day. However the mother went missing with N and could not be located, prompting Hogg J to involve the media to assist in finding them. In the event they were located on 6 December and N was subsequently placed into the care of the father.

Bodey J heard the matter first on 7 December 2012, by which time the mother had accepted the need for chemotherapy but was opposing radiotherapy. During the course of the hearing on that day, an MRI scan was performed on N demonstrating the existence of a further cancerous tumour. Judgment was therefore postponed to allow further medical investigation. The results of the investigation led the treating physicians to recommend urgent "second look surgery", which opinion was supported by expert evidence commissioned on behalf of the mother who had been opposed to further surgery.

On 18 December, the day of the adjourned hearing, the mother initially consented to the surgery but shortly thereafter withdrew her consent and discharged her legal team. The mother's position then was that she should have further time to obtain evidence from experts abroad. In the event Bodey J accepted that surgery was necessary and urgent and declared that such surgery would be lawful.

That evening however the mother applied to the Court of Appeal urgent duty Judge, Ward LJ, for a stay, calling evidence from a further expert who in the event agreed that N needed urgent surgery. Ward LJ refused the stay and N underwent surgery the following day, which was largely successful, although the subsequent scan results indicated the continuing need for radiotherapy.

Thereafter the proceedings continued for consideration and determination of the radiotherapy issue. The mother called evidence from a further expert, a non-medical doctor and expert in agricultural, environmental and health sustainability, who gave evidence on possible alternative treatments and therapies. However the treating physician in evidence rejected the proposals as either experimental or unsuitable. The mother also put forward papers/reports said to support her case as to the existence of credible alternative treatments, although Bodey J did not consider the papers in the event to be supportive of the mother's position.

His Lordship, in reaching a decision as to whether or not radiotherapy and chemotherapy would be in N's interests, weighed up the advantages and disadvantages of such treatment, and the reliability of the underlying research. In particular His Lordship considered the effects of radiotherapy on cognitive function, hormones and thyroid function, fertility and secondary malignancy. In the event His Lordship accepted the evidence of the treating physician as neutral and fair, finding that the balance and advantage and disadvantage "tilts well in favour" of radiotherapy and chemotherapy, notwithstanding the detrimental side-effects. His Lordship consequently declared the treatment package proposed by the NHS Trust to be lawful, allowing the treating physicians to provide ancillary care and to act on the consent of the father alone, and made residence and prohibited steps orders in favour of the father. His Lordship also found that this should be a final decision on the issue, refusing to list the matter for review or to give the mother liberty to apply to restore the matter (over and above that existing in any case involving a child and where there is a dramatic change of circumstances).

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


Case No. FD12P02673
Neutral Citation Number: [2012] EWHC 3842 (Fam)


Royal Courts of Justice
21st December 2012

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B E T W E E N :
An NHS TRUST Applicant
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SR Respondent
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MISS BUTLER-COLE appeared on behalf of the Applicant.
appeared on behalf of the Respondent.
of CAFCASS appeared on behalf of the child.
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[Judge's Note: in view of (i) the mother's application for permission to go to the Court of Appeal, (ii) the innate urgency of the case and (iii) the time of the year, I have prepared this transcript myself over the weekend, based on the notes from which I delivered the Judgment in court.  It will not be exactly the same as that delivered and has additions, but it stands as my definitive Judgment and no other Transcript need or should be bespoken:  24.12.12.]

1. This is an application by an NHS Trust in respect of N a boy aged 7, who is suffering from a Medulloblastoma, a malignant brain tumour.  The consultant paediatric oncologist "Dr A" and his multi-disciplinary team of child cancer experts at the hospital treating him (a recognised centre of excellence) are of the opinion that following surgery he now requires radiotherapy and chemotherapy.  Generally speaking such a treatment package has about an 80% success rate, sometimes put at 86%.

2. N's father (whom I will call "the father") agrees with the advice that radiotherapy and chemotherapy should now be delivered to N as soon as possible; as does N's Guardian from CAFCASS who represents N in these proceedings.  However, N's mother (whom I will call "the mother") does not consent, believing that there are alternative methods of treatment which should be used and which would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed.  Since a child is unable to give the necessary consent for medical treatment, such consent is usually given by one or both parents.  In law, medical professionals can act on the consent of either parent.  However, when the matter is a very serious one and the parents cannot agree, it is accepted that an application will or may need to be made to the court for a declaration that the procedure in question is lawful.  That involves a decision as to the child's best interests, being the court's paramount consideration.  Hence this present application by the NHS Trust concerned to the High Court to determine the issue of N's treatment following on from his brain surgery.

3. The surgery concerned took place on 25th October, 2012 and was to remove a malignant tumour which had been found in N's brain.  Radiotherapy and chemotherapy are the standard and routine procedures which follow and are complementary to such surgery, the aim being to reduce the possibility of microscopic cancerous cells remaining and to minimise the risk of relapse.  When however this was clearly explained to the parents by the experts in November 2012 (I omit the detail) it became apparent to them that the mother was very reluctant to put N through these procedures.  Clinicians in hospitals in two major cities became involved, because the parents had just separated and were moving house.  Those specialists took a lot of time and trouble to inform the mother (and the father) of the 'pros and cons' of the post-operative treatment package being recommended, to reassure the mother and to impress upon her its importance.  They explained that such procedures should not be unduly delayed, for fear that any residual cancer cells would spread.  A period of about 28 days after surgery is about the right time to start radiotherapy (which here expired on 22nd November 2012) or, at the very latest, 49 days afterwards (which here expired on 13th December 2012).  Radiotherapy is a technique which requires skilful delivery.  It requires many days of preparation before it can start, including the making of a mask to hold the child's head still.  The child needs to have play therapy to help prepare him for the demanding experience ahead.

4. Delays then occurred, partly because of the mother's wish to change N's treatment back from the second hospital to the original hospital; and partly because she failed to take N to three necessary arranged meetings, including for an MRI scan on Friday 30th November, 2012 and again on Saturday 1st December, 2012.  She gives explanations, for these failures, such as problems with the weather and insufficient notice; but these have not been investigated and I do not need to go into them.  The fact is that those appointments were missed and the doctors in both hospitals trying to treat N were increasingly concerned for his welfare.  It seemed to them that the mother was 'disengaging' and thereby putting N's health at grave potential risk, since by then the optimum time for starting radiotherapy had already gone by.  Therefore on 3rd December 2012, the NHS Trust applied without notice to Hogg J for declarations regarding N's treatment.  Amongst other orders, an order was made for the mother to attend the next day.  However, she was unable to be located or served.  She had, in short, gone missing with N.

5. At the hearing on the 4th December 2012 before Hogg J, the mother was not present, but she was represented by Mr Tolson QC.  Further orders were made, including that the NHS Trust had permission for the necessary preparatory scans to be performed so as to enable radiotherapy to start if it turned out to be consented to by the mother when located, or if declared lawful by the court.  The case was ordered back into court on Friday 7th December 2012.  The Tipstaff was required to locate the mother and N.  He was directed to remove N from her care under an interim care order made by the Judge and was to place him initially into foster care; and thereafter as soon as possible into the care of the father, once practical arrangements had been made for this to take place.

6. On 5th December 2012, when the mother and N were still being missing, Hogg J requested the media to assist in trying to help find them.  In the event, they were located on Thursday 6th December 2012.  N was removed from the mother and placed briefly into foster care.  He was then handed into the care of the father, who has continued to care for him since.  The Judge discharged the interim care order.

7. On Friday 7th December 2012 the matter came for the first time before me.  The mother was represented again by Mr Tolson QC.  I heard evidence from her and from Doctor A, followed by submissions on behalf of the mother, the NHS Trust and N's Guardian.  The mother was opposing radiotherapy, but was at that time accepting chemotherapy.  As the hearing took too long for me to deliver Judgment on the 7th and in view of the asserted need for urgent radiotherapy, I said that I would sit on Saturday morning 8th December 2012 to give Judgment.

8. During the course of the hearing on the 7th, whilst the mother was in court and the father was caring for N, he took him for an MRI scan as recommended by the clinicians.  By the Saturday morning, it was known that the scan had demonstrated the existence of cancerous tumour in the surgical cavity in N's brain (whether residual or re-growth).  This changed the whole medical landscape against which the evidence had been presented at the hearing and so the Judgment on the issue of radiotherapy had to be postponed for further investigation of N's medical condition.  I therefore adjourned the hearing to Tuesday of this week, the 18th December 2012.

9. Following further investigations, Dr A and his multidisciplinary team, comprising paediatric oncologists (including himself), radiation oncologists, neurosurgeons, radiologists and pathologists met to review the case.  Their advice to the parents was that N needed urgent 'second look surgery' to identify and remove whatever tumour was found.  The mother was not happy with this and so, understandably, wanted a second opinion.  Her legal team commissioned on her behalf a second opinion by Professor Z, a professor of peadiatric neuro-oncology practising in a third major city, who was urgently provided with the scans and the other necessary material.  On 14th December 2012, he reported to the parents that "…further surgery to remove the residual tumour is in N's best interest, as residual tumour of this degree would compromise his eventual cure rate." He said it should be done as soon as possible, as there was "…urgency to commence adjuvant [post-operative] treatment" (i.e. radiotherapy and chemotherapy).

10. At first the mother seems to have accepted that second opinion obtained on her behalf, as the Skeleton Argument of Mr Tolson QC dated 18th December 2012 (the morning of the adjourned hearing) states "…the mother consents to surgery" – albeit it makes clear that such consent was reluctant.  However, by the start of the hearing before me that day (the 18th December 2012) the mother had changed her mind and from then on she opposed any surgery.  She dispensed with the services of her legal team and participated at that hearing on her own, with such help as her new (and current) solicitor Mr Imran Khan, who was with her in court throughout, was able to give.  She did not, as I say, agree with the need for surgery and wanted time to obtain further evidence from experts from abroad before committing herself.  Having heard Dr A's evidence and read the opinion of the mother's own expert, Professor Z, I accepted that surgery was necessary and urgent.  In a Judgment which is now available, I declared that it would be lawful.

11. That evening (Tuesday 18th) the mother's new Counsel, Ian Peddie QC, applied to the Court of Appeal urgent duty Judge, Ward LJ, for a stay of my order.  By way of a conference call starting at about 10.30pm, Ward LJ heard Counsel Miss Butler-Cole for the NHS Trust and Mr Peddie for the mother.  He took evidence from two experts, Dr A for the NHS Trust and a lady paediatric neurosurgeon, "Dr X" for the mother. Dr X was giving a second 'second opinion' for the mother on the question of surgery.  Once Dr X had been told by Dr A the nature of the problem, she told Ward LJ:

"…N needs to get on with his adjuvant [post-operative] treatment.  He will not survive this disease if he does not have his radiotherapy and his chemotherapy.  Whatever the mum has read or listened to or blogged or whatever…you come across a lot of this, so a lot of websites … a lot of communication sites from parents who share all sorts of different experiences of how they've cured their child of X, Y or Z, and parents who are susceptible to this sort of stuff will get hooked onto it very very [sic] easily.  But actually it doesn't make sense; this boy has a highly malignant disease and he will die of it very quickly unless somebody gets his hands on him and treats him." 

Later during that telephone hearing, Dr X told Ward LJ that

"…the UK and probably France are possibly two of the leading countries in terms of treatment of this disease.  If you shop elsewhere for an opinion on the disease, you are doing your child a disservice…I think that so much time has been lost in this child's adjuvant treatment – and what I mean by that is chemotherapy and radiotherapy…" (after which the sentence went off onto a different point).

12. In the event, Ward LJ refused the mother a stay of my order and the surgery therefore went ahead on Wednesday of this week (19th December 2012).  Obviously the parents needed to be with N in hospital and so the court did not sit that day.  During the operation, a tumour of more that 1.5 square cm. was removed, thereby bring N's status back down from "high risk" to "standard risk" again, enabling him to be treated with less strong  radiotherapy than was the case before the second surgical removal.  Happily the operation seems to have been essentially successful, although a subsequent scan has revealed what may possibly be further microscopic cancer cells.  That is why, as Dr A told me, it is necessary to commence radiotherapy as soon as possible, so as to neutralise them if that is what they are.

13. Yesterday, Thursday 20th December 2012, the court sat again for further consideration and determination of the issue about radiotherapy.  Early on, Mr Peddie QC handed up a report dated 19th December 2012 by a Dr D. Usually rules apply about expert evidence, such that the expert's expertise is checked by the court in advance for its relevance and then his or her report, when prepared, is shared between all parties.  Arrangements are made for the experts to meet or speak in advance, so to narrow the issues between them and thus their evidence is able to be dealt with in an orderly way.  However, in proceedings of this nature and urgency, that is not always possible and in practice substantial latitude is allowed - although this may make, as here, for a somewhat disorganized hearing.  Dr D's statement makes clear that he is not a medical doctor and he does not purport to be so.  His CV refers to him as 'an internationally acclaimed expert in agricultural, environmental and health sustainability'.  His work has focused on diverse issues including 'the development of natural and sustainable approaches to health care', and also to 'the development of sustainable agricultural systems, the reduction of synthetic chemical load among urban and rural communities and the protection of natural ecosystems'.  He sets out a number of alternative treatments and therapies which exist, but which I do not need to go through here, and he gives the names and addresses of a number of Harley Street doctors who practise complementary or alternative medicine.  Mr Peddie cross-examined Dr A on these various alternative procedures referred to by Dr D, seeking to show that they are worth looking into further, as being actual or possible treatments suitable for N.  Dr A dismissed the applicability of all of them here, explaining that they are either experimental, or else used with patients who are already in relapse, or who are otherwise unable to be treated with standard doses of radiotherapy and / or chemotherapy.  None of the techniques put to him have, he said, been subjected to the rigorous clinical trials which would need to have been carried out before approving a course of treatment for a child.  (The case of an adult is different, as he or she can weigh risks and take his or her own decision as to his or her preferred treatment).

14. Late yesterday afternoon, Miss Butler-Cole asked the mother in cross-examination about her (the mother's) folder of material on which she (the mother) was appearing to rely in the witness-box when referring to thousands of children who have survived cancers without mainstream treatment, including radiotherapy.  It was arranged that overnight M would chose and produce the two papers or reports which she was putting forward and relying on as being the most supportive of her stated case about the existence of credible alternative treatments.  That has been done this morning. Mr Peddie has cross- examined Dr A about her two chosen papers.  To put it shortly, neither paper supports the suggestion that there should not be radiotherapy and chemotherapy for N.  One of the reports is concerned with studies carried out as long ago as 1987 to 1994, which attempted reduced radiotherapy but which in fact turned out to be rather unsuccessful; and the other paper is actually one upon which Dr A is in any event basing the proposed treatment package for N.  Nothing has been produced from the mother's folder supporting the suggestion that there are Chinese or Russian or other reports which speak to thousands of children surviving cancers without mainstream treatment, including radiotherapy.

15. The underlying issue is, as I said at the outset, whether radiotherapy and chemotherapy are in N's best interests?  The advantages have to be balanced against the disadvantages (of which there are several and to which I will come back).  The "gold standard" orthodox approach contained in the CCLG guidance (the Childhood Cancer Leukaemia Group to which oncologists in this country belong) is that a package of radiotherapy and chemotherapy is necessary to produce optimum survival rates.  Much research, investigation and deliberation by cancer experts over decades has determined the minimum dosages to produce maximum survival rates, with the minimum possible detrimental consequences as regards quality of life.  Before radiotherapy was developed during the course of the last century, patients who had N's cancer invariably or almost invariably died in spite of surgery.

16. Various research papers have been placed before me and have been discussed in evidence.  I do not need to descend to the detail of them, although I have read and carefully considered them.  One particular statistic was extracted by Mr Tolson QC and is adopted by Mr Peddie QC.  It is based on studies of infants (children under three years of age) who were treated by way of chemotherapy alone, that being reasonable treatment for that particular age group, since the detrimental side-effects of radiotherapy for children with developing brains are far worse than they are for children aged around 7, whose brains are that much more developed.  Extrapolation from the studies concerned, being in respect of a different age group to N, is not therefore necessarily reliable in any event.  The statistics relied upon on behalf of the mother are that with chemotherapy alone, 35% of the infants in the study achieved "event-free" survival at five years (i.e. survival without relapse) which compares with 80% of those who received both radiotherapy and chemotherapy.  The statistic for "overall survival" at five years (i.e. the combined total of those infants who had not relapsed plus those who had relapsed) is tabulated as being 67.5%.  That appears to compare quite well with the figure of 80% for those infants originally treated with both radiotherapy and chemotherapy (being only about 12.5% lower).  However that figure of 67.5% for "overall survival" (set out under the heading 'chemotherapy only' in Mr Tolson's table) in fact includes all those infants who had relapsed after treatment with chemotherapy alone and who had only survived to the five year point by being 'rescued' by subsequent radiotherapy and by further (and often more aggressive) chemotherapy.  The disadvantages of radiotherapy are much the same whether it is administered as a first-line treatment or as a second-line 'rescuing' treatment after a relapse.  Thus whatever the statistics may appear superficially to show, there is in fact a significant tested and reported difference regarding the survival rate of infants as between whether they are treated with chemotherapy only, or whether they have both radiotherapy and chemotherapy.  Such tests do not exist in respect of children of N's age because it has not been considered ethical, since radiotherapy began to be used, to treat them without it.  There is another all-embracing series of studies which reports on the outcomes without radiotherapy, measured at 8 years on, as being lower still: 27% "event-free survival" and 42% "overall survival".  I add for completeness that the figures under discussion assume treatment starting without undue delay, which is not N's situation now; his rate is likely to be or may be somewhat lower than it would have been, whether treated with radiotherapy followed by chemotherapy, or with chemotherapy only.

17. Mr Peddie submits there is an important exchange of e-mails in early December 2012, which were disclosed by the NHS Trust on discovery, being between Dr B (the consultant oncologist caring for N at the first of the two hospitals) and a friend and colleague, a Dr C. He, Dr C (formerly Dr B's mentor) is another consultant oncologist, practising in yet another major city.  Dr B consulted him informally about this case, because of his concern that he was not managing to create a good rapport with the mother.  In that exchange of e-mails, Dr C expressed concern about the "very constrained lives" of patients treated conventionally and appeared to be suggesting alternative ways of "brain-saving".  In his submissions, Mr Peddie relied on Dr C as lending support to the mother's case. As Dr A pointed out however when cross-examined on the asserted significance of these exchanges, the main e-mail from Dr C was headed up with a reference to "infants" and Dr A said he thought that this probably explains where Dr C was coming from in saying what he did.  (I have explained above how and why the balance of advantage and disadvantage is different as between (i) infants and (ii) children who have reached the age of about 7).  It is also right to point out that Dr B replied to Dr C within those e-mail exchanges with a reference to N having a five year "event-free" survival likelihood of 86% (at that time) if given the standard recommended treatment of radiotherapy and chemotherapy.  He also referred to "the folly of alternative treatments".  Further, in order to clarify what Dr C had meant in his e-mails, Susan Thompson, the partner of the firm of solicitors representing the NHS Trust, contacted him by telephone. In her affidavit of 17th December, 2012, she says

"... Dr C asked me the age of the child, which I confirmed was 7.  His response, despite his unfamiliarity with the details of the case, was that he believed the only chance of survival where there had been delay would be to offer the full combination of therapy, namely radiotherapy and chemotherapy". 

I cannot in the circumstances attach the weight to Dr C's e-mails which Mr Peddie asks me to do.

18. I now turn to the disadvantages of the proposed treatment package, in particular radiotherapy.  I put it that way because radiotherapy was the live issue when most of the evidence on the point was given on 7th December, 2012, since the mother was not then opposing chemotherapy.  Dr A has from the outset acknowledged the existence of the detrimental side-effects on patients which the treatment package recommended by him and his colleagues has.  As regards intellectual and cognitive impairment, his evidence was originally that one can expect to see about a 4 point per annum IQ loss over each of the four years after treatment, although it could be less or more.  He thought there would be some intellectual detriment from radiotherapy, although said it could be minimal.  Subsequent research by him has produced a later paper which suggests a very much less significant decline in IQ.  He accepted that radiotherapy would decrease anyone's chances of 'growing up to be a lawyer or doctor', but said that he has treated many patients with this disease using the standard treatment he recommends for N and that they even go to school with some additional help, play sports and do the normal sort of things which others do who have never had the disease.  Generally, he said they cope pretty well with the side-effects.  He expressed concern that the reduction in cognitive function attributable specifically to radiotherapy has been overstated.  He did not consider that there would be any effect on the N's personality.

19. As regards hormonal detriment, Dr A accepted that there could be impact to the growth hormone, although he said the progress of the child is monitored and hormone replacement therapy is routinely given.  Generally speaking, therefore, any loss of growth '…would not be noticed in the street'.  As regards the thyroid, Dr A told me that a negative impact is much less common.  It can make the patient more lethargic and cause a weight increase, but again this is monitored and is dealt with by tablets.  As to fertility, Dr A accepted that there are risks of sub-fertility or infertility.  He said that older patients are usually counselled to the effect that '…there is a risk of sub-fertility which, at its worst, could mean that you cannot have a child'. Nevertheless, he advises older patients to take contraceptive measures.  Further, Dr A pointed out that chemotherapy (which, as I say, the mother was accepting) has a greater role to play in threatening fertility, roughly 60 to 70%, as compared with radiotherapy's role of perhaps 30 to 40%.  As regards the risks of secondary malignancy later on in life, Dr A accepted that such a risk exists.  The most common such cancer is benign and therefore normally treatable by surgery.  In 'ballpark' terms, he placed the risk of later-life cancer (of all types, benign and malignant) at a figure of some 2% to 4%, although the individual might have suffered such cancer in any event.  There are one or two other downsides to the suggested treatment which I have well in mind, but do need to go into individually.

20. I have heard Dr A give evidence at length.  He has been a consultant paediatric oncologist for 10 years, with hands-on responsibility for child patients.  His knowledge and experience of the subject matter is highly impressive, as would have been obvious to anyone in court.  He and his team work at the cutting-edge of this discipline, anxious to keep up with the developing techniques as they are tested and reported on, both here and elsewhere.  He told me how the team strives to strike the necessary balance in giving their children treatment which has the best possible rate of survival, but with the least possible detrimental side-effects.  Having seen and heard Dr A, I find it hard to see that he and specialists like him would keep back or fail to explain the possible benefits of credible alternative therapies which work, or might work, for such very ill children.  He told me of ongoing trials in the USA aimed at further reducing the standard dose of radiotherapy, but explained that these will not be reported upon until about 2016.  For the moment, he regards the idea of using chemotherapy alone as 'a big risk and a big gamble…reducing the prospects of survival by an experiment'.  I accept Dr A's evidence and I reject any suggestion that he has minimised the disadvantages of the recommended treatment package.  I find that he has shown dedication to this case and therefore to N's best interests, devoting much time to it, beyond the call of duty.  He has been in court and available to assist throughout the hearings, except during the delivery of this Judgment.  He has answered many questions both in court and outside court in writing, some inevitably rather repetitive (due to the change of legal representation) doing so clearly and with patience.  I am satisfied that he has done his best to assist the court neutrally and fairly.

21. The mother, having heard Dr A's evidence and being asked whether it affected her view on radiotherapy replied that, following upon her many hours of research, she still feels there are other ways to treat N.  She told me that to her mind the orthodox view of oncologists is the product of indoctrination.  I cannot accept that.  I find it on the evidence before me to be the best we have at the present time to deal with what the mother's own expert, Dr X, described to Ward L J as  '…a highly malignant disease', and one which will very probably cause death if not conventionally treated.  It may well be that some of the complementary techniques which the mother has in mind, for example as to diet and lifestyle, or as to oxygen therapy, can beneficially be used in conjunction with the mainstream therapy proposed.  Dr A said he and his team have no problem with this and can work with parents along those lines, so long as the alternative suggestions do not conflict with or disrupt the primary treatment.

22. The mother has been through a very stressful time.  What the parents have suddenly had to confront over the past two or three months is every parent's nightmare.  I have every sympathy with them; and with the mother in not wishing to see N subjected to the risks and side-effects which conventional treatment carries with it.  Her wishes and views as a parent are obviously an important part of the balancing exercise, both in their own right and because of their potential effect on N.  But I am worried that her judgment has gone awry as to the extent of the seriousness of the threat which N currently faces.  As I have said, she did originally agree to chemotherapy at the hearing on the 7th December, 2012; and, when Mr Peddie made his submissions at the end of this hearing, he spoke of her continued agreement to it, although in her evidence I noted her disagreeing to it, alongside her continuing objection to radiotherapy.  During the course of Ward LJ's judgment at the telephone hearing three nights ago, he observed that "... the mother is becoming increasingly implacable" and I too have the perception that her approach has hardened as these stressful days in court have gone on.  It concerns me that she may have become somewhat overwhelmed by the process whilst this case has been in court, which is most unfortunate from N's point of view.  I express the hope that, when she has had time to stand back and reflect upon his best interests, she will come to terms with the court's decision (as she told me at the first hearing she would) and support him through the very difficult times ahead.  N clearly needs both his parents to be pulling together alongside the treating team and nothing could be worse than for him to pick up on any sense of maternal opposition to the treatment.

23. It will be obvious from the above what I have decided should happen.  I accept the submissions of the father, the NHS Trust and the Guardian.  The balance of advantage and disadvantage tilts well in favour of radiotherapy and chemotherapy, notwithstanding the detrimental side-effects.  One cannot enjoy even a diminished quality of life if one is not alive. I shall therefore make a Declaration that the treatment package proposed by the NHS Trust is lawful.

24. The question then arises as to whether this should be a final decision, or whether I should give the mother a further opportunity to marshal and call expert evidence on complementary or alternative treatments.  The time for everyone to prepare for this case has been short and she clearly has her Article 6 right to a fair hearing.  I am very conscious that she feels catapulted into this litigation, without proper time to get her case together.  It is however the fact that the mother has been fully aware since early November 2012 about the opinions of the treating clinicians that N requires radiotherapy and chemotherapy.  She herself mentioned today having 'done a crash course on the issue over the last 6 weeks' and she spoke earlier of having 'numerous people working on it'.  On both the 3rd December and 4th December 2012, Hogg J gave her permission to call expert evidence, although I accept that the mother's having gone missing with N that week made it impossible in practice for her then legal team to do much about that.  On the 13th December, 2012, by an e-mail order, I gave the mother further permission to call an oncologist.  It is now clearer, with the emphasis at this hearing on entirely complementary therapies, that that may not have given the mother exactly what she may have wanted; but my order also gave her 'liberty to apply urgently to seek further or other directions'.  That was some eight days ago.  The mother has had representation by and advice from Leading Counsel and solicitors since before the 3rd December 2012, as Mr Tolson QC prepared a robust Position Statement on her behalf for the hearing before Hogg J of that date.  She changed her legal team during the hearing on Tuesday of this week (the 18th December 2012) and it follows that her current legal team has struggled to read into the case and to get very much together to support her position in the time available.  She has referred several times to research from and treatments available in Russia and China and elsewhere, which research she has not been willing to pass across to the NHS team, although asked by them to do so, for fear (as Mr Peddie put it) that she might be seen as seeking support 'from quacks'.  Mr Peddie submitted today that the mother's search has been hampered by the S.4 of the Cancer Act 1939, which prohibits the advertising of cancer services; but on her own case the mother has been able to carry out much research on the internet, which anyone can do without difficulty.  Dr D set out in his report of 19th December, 2012 a list of Harley Street doctors who he says offer complementary medicines; but nothing has been heard from any of them.

25. I have to keep firmly in mind what is required for there to be any realistic prospect of the court's preferring some complementary alternative to the standard mainstream treatment for N's condition.  It is not just a question of demonstrating that there is research and experimentation going on out there; nor that there are ideas and possibilities being floated, nor even that there are reported success stories of cures occurring without the use of radiotherapy and / or chemotherapy.  What is required is the identification of a clinician experienced in treating children aged about 7 having this kind of brain cancer; a clinician with the access to the necessary equipment and infrastructure to put the suggested treatment into effect and able and willing to take over the medical care of and responsibility for N. As Ward LJ said at paragraph 38 of AVS v NHS Foundation Trust [2011] COPR Con. VOL. 219:

"… if there is no one available to undertake the necessary operation, the question of whether or not it would be in the patient's best interests for that to happen is wholly academic...". 

The treatment proposed by any such clinician would have to be (or should preferably be) properly studied, tested, reported on and peer-reviewed.  To have any realistic prospect of becoming selected by the court (and I repeat that this is not a decision to be made by an adult for himself, but for a child) the proposed plan would have to have a prognosis as to probable survival rate not much less than (and preferably equal to) the sort of survival rate achievable through the use of the orthodox treatment universally applied at present by oncologists in this country.

26. Giving the mother a review hearing date after Christmas, or just a "liberty to apply " provision in my order, would also have an incidental downside to it.  This is because everyone working at the hospital with N should ideally be able to go forward with as much certainty and confidence as possible that the necessary decisions have been taken.  They need to be able to get on with making the necessary booking arrangements for the equipment, making the restraining mask and planning their commitments.  They need to be able to prepare N with play-therapy which is able to be confidently delivered, and not in some half-hearted way because they are aware that the radiotherapy might never happen.  It is not in N's interests that everything should be 'semi-on-hold' awaiting notification after Christmas or in the New Year as to whether or not there is still to be further litigation.  Whilst recognising therefore that the mother's right to a fair trial is absolute, I am satisfied in all the circumstances (i) that she has had a sufficient opportunity overall to put forward a case for complementary treatment for N and (ii) that it is not unfair for this decision to be taken today, without there being any pre-ordained opportunity for her to apply at a further hearing after Christmas.  Obviously, in any case involving the best interests of a child, a dramatic change of circumstances would enable a party to turn to the court, but that is not something for which I consider I should specifically plan.

27. Turning to the specific remaining issues on the draft 'medical treatment' order prepared by Miss Butler Cole, paragraph 2 (b) as verbally amended would permit the NHS Trust to provide N with ancillary care (having consulted with the parents to such extent as may be reasonable and practicable) by way of such things as, for example: anti-sickness medication, creams for skin care, steroids if there is evidence of brain inflammation, nutritional support via feeding tube, painkillers and blood product support.  The mother opposes such an order and I can quite understand why.  Any mother would rail against the removal of decision-taking regarding her child.  However, I am concerned about her attitude in terms of N's welfare generally.  She strongly opposed surgery which all the experts (including two instructed on her behalf) advised was necessary to save his life and her evidence shows that she is against prophylactic anti-emetics (sickness medication) believing that the sickness is or may be a good thing, within reason, as it is nature's way of the body removing toxins.  That is a perfectly fair enough as a belief for herself; but it cannot be in N's interests that the treating clinicians have to face the potential of being blocked as regards treatments which they would normally carry out in the interests of the welfare of their patient.  They should be able to decide routine matters in accordance with their clinical judgment, as the father is content for them to do.  Obviously they must discuss the pros and cons of procedures with the mother wheresoever reasonable and practicable, and she would have the right to apply to the court if she felt that something of some significance which they were proposing to do was wholly unacceptable to her.  I therefore approve paragraph 2(b) of the draft order.  This is not done so as to disempower the mother; but rather to provide for as smooth-running and anxiety-free treatment regime for N as is possible, that being in his best interests.

28. As to paragraph 3 of the draft order, it authorises the treating clinicians to act on the consent to further treatment given by the father alone.  The same points apply here as those just made and I do not need to repeat them.  It is clearly in N's interests that a stalemate is not generated, with one parent consenting to some aspect of his treatment and the other opposing it, leaving the doctors and nurses unsure as to what they should do and having to turn to the lawyers.  Given the mother's track-record as set out in this Judgment, it must be in N's best interests that the father's consent should be sufficient, provided again that the decision in question is discussed with the mother wheresoever reasonable and practicable.  Again she would have the ability to apply to the court if she found when it came to it that what was happening, or what was proposed, was wholly unacceptable to her.

29. Finally, as to the draft ' family law' order placed before me by Miss Bradley for the father, paragraphs 1 and 2 contain a residence order to the father and a prohibition on the mother from removing N from his care for the duration of N's treatment.  The mother told me she has no objection to that, providing that she has reasonable contact to him.  That is not opposed by the father.  I have to bear in mind the "no order" principle set out in the Children Act 1989, together with the fact that N's welfare is the court's paramount consideration.  I must also take account of the 'welfare checklist', which I have well in mind.  For all the reasons already discussed, the father needs to have the security of knowing during N's treatment that his position in practice is reflected in law.  There is an example of the mother's 'panicking' (her word) and running with N.  There will be stresses for her given the result of this hearing, and all the publicity which it has received, with which she is going to have to come to terms.  In my judgment it is best and in N's interests to secure the position by way of the orders proposed in paragraphs 1 and 2 of Miss Bradley's draft order.  Paragraph 3 of the draft (that the mother must deliver N's passport to the father) has been dealt with by (i) an assurance from the mother through Mr Peddie that N does not currently have a passport and (ii) an undertaking by the mother again through Mr Peddie that she will not apply for one for N before 1st December 2013, without the father's consent.  That is obviously a sensible way of dealing with that issue. 

Finalised and approved:  24th December 2012.