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Re A (A Child) [2014] EWHC 920 (COP)

Application by an NHS Foundation Trust for declarations in respect of the treatment of a 15 year old girl who was suffering from persistent vomiting which had led to life threatening weight loss. The proposed course of treatment was opposed by the child and the Mother. Declarations granted and patient made ward of court.

At the time of the hearing A weighed 5½ stones, had been hospitalised for 10 months and confined to a bed for several weeks. Following oral intake she was liable to vomit up to thirty times per day. Unusually A did not vomit at all during the night, a feature of her condition that could not be reconciled with any known clinical pattern.

Evidence of A's clinical presentation was provided to the court by a consultant paediatric gastroenterologist (A's treating physician), a consultant paediatrician and two consultant gastroenterologists. No gastroenterological cause could be identified for A's vomiting. This conclusion was refuted by A and her mother.

In a comprehensive written analysis, one of the consultant gastroenterologists recorded:

"I have grave concerns that A is suffering under a form of fabricated and induced illness (the extent to which A is colluding with the mother remains to be seen). I would suggest that this goes beyond exaggerated illness behaviour … By removing the child from a potentially harmful parent it would then be possible to see to what extent the child would benefit from less invasive care."

The judge said it was likely that those comments would be scrutinised in the Children Act proceedings but that in the present application the court need not reach any conclusions on them.

The judge noted that his determination went further than a consideration of the medical evidence alone and that treatment supported by the patient is far more likely to succeed and that he must give thought to A's own wishes and feelings. A was represented by a Guardian and, with the consent of all parties, her capacity to understand the issues being determined was assessed in two psychiatric opinions. The judge started from the premise that "a competent young person under the age of 16 years, who is able to understand all the relevant advice and the consequences of that advice, is to be treated as an autonomous individual and respected as such". In those circumstances her views would not be determinative but they would be given great weight: CR (Axon) v Secretary State for Health (Family Planning Association) (intervening) [2006] QB 539; Gillick v West Norfolk & Woosbech Areas Health Authority [1986] AC 112. Both psychiatrists concluded that A was suffering from a disorder of mind or brain (within the provisions of the Mental Health Acts 1987 and 2007) and was not competent to make decisions as to the appropriate course of her treatment. They also considered that she presented as a child with a complex somatising condition who had a disordered relationship with food.

The judge said, notwithstanding the psychiatric evidence as to capacity in relation to the decisions being determined, he nevertheless gave very considerable weight to A's strongly expressed resistance and had evaluated with care the alternative treatment options she had proposed.

Hayden J expressly endorsed the observations made in NHS Trust v MB (A Child represented by CAFCASS as Guardian ad litem) [2006] EWHC 507, [2006] 2 FLR 319 that a 'Benefits/Disadvantages Table' addressing the various treatment options raised by the parties should become part of "the standard preparation of a case" to assist the court during the trial and in the preparation of the judgment. The document is annexed to the judgment "in the hope that it might stand as a template for future practice".

In evaluating the evidence, the judge applied the guidance set out by Wall LJ in Kevin Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554:

i) the judge must decide what is in the best interest of the child (an objective exercise);
ii) in doing so, the child's welfare is a paramount consideration;
iii) the judge must look at it from the assumed point of view of the patient;
iv) there is a strong presumption in favour of the course of action that would prolong life but, that presumption is not irrebuttable;
v) the term 'best interests' encompasses medical, emotional and all other welfare issues.

Having surveyed "the wide canvass of medical and social issues and having particular regard to what A says ... and affording it proper weight and respect" the judge concluded that A's best interest required the declarations sought by the Trust, including the use of reasonable force to ensure that the Nasojejunal (feeding) tube was put in place and for A to receive treatment and assessment by the Child and Adolescent Mental Health team.

The judge also authorised the suspension of contact between A and the mother, at least for the first two weeks of A's treatment, particularly in light of the mother's resistance to the treatment which had been ordered.

The judge took the two 'unusual steps' of making A a ward of court in order to make clear where the ultimate responsibility for the decision taking lay and of attending the hospital himself to explain that decision to A.

The judge was clear that he was not prepared to sanction the use of reasonable force to prevent A leaving the hospital, a declaration originally sought by the NHS Trust but not pursued at trial. The judge found that there was no evidential basis for it at the time and that such an order "always requires compelling and cogent evidence".

Summary by George Gordon, barrister, 1 King's Bench Walk

Neutral Citation Number: [2014] EWHC 920 (Fam)
Case No: FD14P00047


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 12/02/2014

Before :

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Between :

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A 1st Respondent
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M 2nd Respondent
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P 3rd Respondent
-and –
A LOCAL AUTHORITY 4th Respondent
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Miss Lorraine Cavanagh (instructed by Hempsons) for the Applicant
Miss Yvonne Healing
(instructed by Otten Penna) for the First Respondent
Miss Julia Cheetham
(instructed by Stephensons) for the Second Respondent
Third Respondent in person
Miss Jane Walker
(instructed by Legal Services) for the Fourth Respondent

Hearing dates: 14th, 15th January 2014
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This judgment was delivered in private.   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 children 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.has been emailed to you it is to be treated as 'read-only'.
You should send any suggested amendments as a separate Word document.

Mr Justice Hayden :
1. A, the young person with whom I am concerned, will be 16 years old in June of this year.  At the time I am hearing this application, brought by an NHS Foundation Trust, A weighs just 5 ½ stones and has been in hospital for 10 months.  She has been confined to a bed now for several weeks.  Since she was transferred to the Y Children's Hospital on the 26th April 2013  A has undergone a battery of tests to identify the cause of the persistent vomiting which has led to her dramatic weight loss. 

2. Dr B, the Consultant Paediatric Gastroenterologist, who has overall responsibility for A's clinical care, has prepared a report for the court dated the 9th January 2014.  Annexed to that report is an exhibit headed 'Patient Investigation and Treatment Summary'.  That document reveals that A has had in the region of 95 blood tests (which have been largely stable), allergy tests (all normal), ultrasound scan, dexa scan and barium studies. All show results within the normal range.  Some of these tests have been highly intrusive and A has required general anaesthetic for the purposes of testing on two occasions. 

3. Following oral intake A vomits up to thirty times per day.  However, an unusual feature of the history, and one which cannot be reconciled with any known clinical pattern, is that A does not vomit at all during the night.  It is her habit, apparently, to sleep quite soundly from around midnight until approximately 8.30am. 

4. Dr C, a consultant Paediatrician at the Y Children's Hospital concluded that there was no organic cause or malignant pathology for these symptoms.  This was a view that neither A nor her mother were prepared to accept.  Accordingly it was thought that it might be helpful to obtain a second opinion.  One was obtained from a Dr D, a Consultant Gastroenterologist.  He agreed that there was no organic cause for the symptoms and in the absence of a diagnosis he settled upon the neutral conclusion that this might be regarded generally as 'a disorder of rumination'. 

5. A and her mother remained unconvinced and out of an abundance of caution but also to bring a fresh pair of eyes from a different hospital, a third opinion was sought.  Dr David Campbell was selected, a Consultant Gastroenterologist from the Sheffield's Children's Hospital and he provided an analysis which has been reduced to written format.  In that document he considered three diagnoses which had been considered by Dr E and Dr B. 

6. He discounted rumination syndrome on the basis that A was regurgitating watery liquid and not food.  He discounted a post viral gastro paresis on the basis that it was not consistent with the gastric emptying which had been a consistent history, and he discounted gastro oesophageal reflux disease (GORD).  The latter was wholly inconsistent, in Dr Campbell's view, with the fact that the patient did not vomit at all whilst sleeping and had no history of sleep disorder.

7. Dr Campbell considered two more possibilities, one a disorder of the neutrophil counts known as neutropenia, which had been further pursued by Dr B and discounted both by him and Dr Campbell by the time of this hearing, and chronic intestinal pseudo obstruction (CIPO) which was comprehensively discounted in the absence of abdominal distension and the two normal barium study tests. 

8. Dr Campbell suggested a number of further medical investigations in order fully to discount gastroenterological causation, all of which had been completed by the time of this hearing and enabled Dr B to conclude to a high degree of certainty that there is no gastroenterological cause for A's vomiting.  That is the view of every doctor with relevant expertise who has considered the medical history of this case.  It continues however to be refuted by both the mother and A. 

9. Surveying the background as comprehensively as he did caused Dr Campbell to consider other areas that can loosely be categorised under the heading of 'illness behaviour and obstruction to medical care'.  It has not been necessary for me during the course of this hearing to investigate those alternatives or to draw any conclusions in respect of them.  It is likely they will be subject to scrutiny during the course of the Children Act proceedings.  I merely record his conclusions that 'I have grave concerns that A is suffering under a form of fabricated and induced illness (the extent to which A is colluding with the mother remains to be seen).  I would suggest that this goes beyond exaggerated illness behaviour…. By removing the child from a potentially harmful parent it would then be possible to see to what extent the child would benefit from less invasive care'.

10. On the 9th January 20014 the Trust applied for declarations inter alia

i) that it is lawful and in the best interest of A to have a Nasojejunal tube inserted and reinserted on any occasion that it is removed;

ii) it is lawful and in the interest of A to receive fluids, nutrition and medications through a Nasojejunal tube;

iii) it is lawful and in A's best interest to receive treatment (to include psychiatric, psychological and medication as prescribed by her consultant treating psychiatrist) and assessment by the child and adolescent mental health team.

11. Issues of this complexity are rarely determined on the medical evidence alone.  People sometimes react in an idiosyncratic manner to medical treatment.  They sometimes have their own views as to what is best for them which may not always accord with a recommendation of their doctors.  It is self evident that treatment to which a patient is committed and supportive of the objectives of the doctors is far more likely to be successful.  What seems the most obvious course medically may not necessarily be right for the patient, this simple truth is confronted by doctors everyday in hospital and in general practice. 

12. Accordingly it is right that I should give thought to A's own wishes and feelings on her treatment.  In order that I was best placed to evaluate those wishes and feelings she has been represented by a guardian, solicitor and counsel.  All the parties agreed that in the light of A's presentation not withstanding her age (approaching 16 years), an assessment should be made of her capacity to understand the issues that fall for consideration in this case and in her treatment.  I start from the premise that a competent young person under the age of 16 years, who is able to understand all the relevant advice and the consequences of that advice, is to be treated as an autonomous individual and respected as such.  That of course would not mean her views would be determinative, but they would be given great weight:-

CR (Axon) v Secretary State for Health  (Family Planning Association) (intervening) [2006] QB 539; Gillick v West Norfolk & Woosbech Areas Health Authority [1986] AC 112

13. Two psychiatric opinions have been commissioned and both concur that A is not in fact competent to make decisions as to the appropriate course of medical treatment. Were she an adult and were I applying the criteria of the Mental Capacity Act 2005 (which I am not) the psychiatric opinion would lead me to the conclusion that A lacks the capacity to take these medical treatment decisions pursuant to section 2 (the diagnostic test) and section 3 (the functional test) of that Act. It is here relevant to how I evaluate A's expressed wishes and feelings.

14. Summarising the core views as articulated by Dr G , one of the consultant Child and Adolescents Psychiatrists who undertook capacity assessment, it was concluded that A struggled to make decisions about her own care and presently suffered from a disorder of mind or brain (within the provisions of the Mental Health Act 1987 and 2007); she presented as a child with a complex somatising condition who has at very least a disordered relationship with food.  In Dr G 's analysis there was no evidence that any further time would alleviate the problem or effectively assist in aiding A's understanding. In any event Dr G recognised, as do I, for the reason I will come to in due course, that the treating team simply did not have time to wait to achieve some improvement in A's understanding.  I agree with Dr G that A's instinctive stance when presented with any suggestion about treatment by her doctors was to say 'no'.

15. Dr G based that on her reading of the medical case notes and her own discussions with A as how best to progress her treatment plan.  I heard too from Dr G and indeed from a number of witnesses that A gives the impression of being a great deal younger than her chronological age and whose language, I detect, is that of a much younger, somewhat petulant child.  Notwithstanding the psychiatric evidence as to A's lack of competence to participate meaningfully in her own medical treatment decisions, I have nonetheless given very considerable weight to her strongly expressed resistance and have also evaluated with care the options she has expressed a preference for.  Over the course of two days I heard evidence from Dr G, Dr B, Ms H (dietician), F (A's sister) and A's Mother.

16. Dr B  told me that A is very malnourished indeed. She is, he said, at high risk of 'Refeeding Syndrome' which as I understand it is essentially derangement of biochemistry, specifically sodium, calcium, phosphate, magnesium and potassium.   The consequence of these deficiencies leads the patient to become weak and lethargic if unmonitored and if not managed properly the consequences are fatal.  In order to avoid this Refeeding Syndrome Dr B  told me it is essential that A's future food and fluid intake is managed correctly and supervised closely.  For that reason it is unwise for A to take food orally, particularly if she refuses to comply with dietary limitations.  There is no doubt that she has in the past failed to comply with dietary limitations.  In addition all feeds were likely to induce vomiting, and that would further and adversely impact upon her physiological state.  What in Dr B's opinion was the most suitable course was to insert an NJ tube which will bypass the stomach altogether and would therefore be far less likely to induce vomiting and thus give A a real opportunity to increase her weight and stabilise her condition. 

17. That treatment in the view of Dr B was urgent.  He told me that he had spent some time trying to persuade both A and her mother to accept this advice.  Firstly, because if he managed to achieve a commitment to it, it was far more likely to be successful and, secondly, because the practical realities of imposing the treatment require overriding patient autonomy and potentially using reasonable force to ensure compliance.  The Trust's application was filed on the 9th January, by that stage Dr B was alarmed that A's body had already begun to shut down.  In the absence of immediate intervention it was thought that she could have no more than around 8 to 12 weeks to live.

18. On being asked directly about the delay, Dr B had the integrity to acknowledge without hesitation that he had striven to achieve consensus with the mother and the patient for too long and that the application that I was hearing ought to have been made weeks earlier.  Dr B's dilemma is a common one.  Where, for what ever reason, patients or families object to a course of treatment, time and care should always be spent exploring the possibilities of an agreed way forward in a patient's best interest.  I have sometimes felt that Trusts resort to litigation too quickly, for a variety of reasons.  Equally though, as I believe this case highlights, crucial time can sometimes be lost trying to secure acquiescence.  For the reason articulated by Dr G I do not believe that either the mother or A was ever likely to agree to a way forward in this case.  There are occasions when it is simply the right course to go to the court directly, for the court to take the decision whether that be the Family Division in the case of a child or the Court of Protection in the case of an incapacitous adult. 

19. Dr B was very clear that the best treatment for A was to place a Nasojejunal feed tube as urgently as possible.  The tube is inserted via the nostrils, it is passed down into the oesophagus, into the stomach, into the jejunum.  The proposal is that food will be introduced along with fluids through the tube.  Initially A would be fed day and night.  Once her situation had stabilised the plan is that she would be transferred to a unit where she could be involved in their day time programme and her feeding would then be undertaken almost exclusively over night.  

20. She would, for these reasons, have to return to the general paediatric ward for over night stay.  This it was thought would probably last for several weeks after the initial stabilisation period depending on how well and how quickly A progressed.  Self evidently the first two weeks are crucial.  The mechanism to be deployed involves inserting the NJ tube with a numbing spray down the nose perhaps with an oral sedative. Often neither is required and in the past A has cooperated with the insertion of an NJ tube.  I pause there to interpose that the graphs of her weight whilst in hospital on the occasion she previously agreed to feeding by NJ tube showed a significant improvement in her weight. 

21. The insertion, Dr B told me, could take place on the paediatric ward. Once the tube was inserted she would be taken to radiology where radiologists would manoeuvre the tube into the correct position.  The initial procedure takes no more than about 5 minutes, it is then left in situ for a few hours and the patient may sometimes require up to an hour in the radiology department. 

22. The history (which A disputes), of the previous use of an NJ tube, which took place between the 12th July 2013 and the 6th September 2013, appeared to show good tolerance to it, in the view of the professionals.  The doctors consider that A pulled the tube out herself. A asserts that it was done by the nurses.  It is again unnecessary for me to resolve that issue other than to say that the possibility of the tube coming out "accidently" or otherwise is relevant when considering any alternative to the recommendation of Dr B. 

23. It is also important to emphasise that in the period between the 12th July 2013 and the 6th September 2013 A gained approximately 2 kilograms in weight, that being the only time she has gained weight with any consistency during the whole term of her hospital admission.  Predictably, perhaps inevitably, her weight began to decline when the NJ tube was displaced.  As Dr B says, it is reasonable to conclude from this that NJ tube feeding in the past has been effective and there is no medical reason for believing that it will not be effective in the future were it to be tolerated.

24.  A has complained of pain with the NJ tube in place but whilst it is no doubt uncomfortable, her overall clinical presentation has been more consistent with discomfort, says Dr B, than pain itself.  The wider proposal is that during NJ feeding A would have her IV fluids and intravenous medication gradually weaned as all of her fluids and nutritional food and medication would be administered to her via the NJ tube.  It follows that if the NJ tube became dislodged for whatever reason it would have to be repassed as it would in effect be the only source of nutrition and hydration for A.   It is also important that no oral foods or fluids are taken whilst A is being feed by NJ tube.  I'm satisfied that in the past that has not been complied with.

25. The NJ procedure that Dr B proposes has the support of every doctor who has been asked to consider the case.  Notwithstanding this, however, A's Mother and A herself resist it strenuously.  Having trawled the internet they propose a variety of speculative alternatives, none of which is supported by any expert opinion.  Each of the options contemplated, however, has been carefully considered and scrutinised.  Counsel for the Trust, Ms Cavanagh, has annexed a document to her skeleton argument headed "Benefits/Disadvantages Table".  It is a comparative analysis of

i) The NJ option proposed by the Trust;

ii) Parenteral feeding by central line;

iii) Oral feeding.

To this list should be added a fourth which in it self is a variation of (ii) which emerged during the course of cross examination of Dr B, namely Parenteral Feeding via a PICC line.  I do not propose to rehearse the analysis within that schedule into this judgment for a number of reasons.  Firstly, it creates the illusion of a balancing exercise where there is to my mind, no real balance to be struck: the scales are entirely one sided.  Secondly, I accept the observation of Dr B whose evidence I found to be measured reflective and full of integrity, that the options proposed by the mother are so full of danger they would require the doctors to act unethically. Thirdly the document itself is, with the exception of the addition that I have referred to, so comprehensive in its simplicity that it does not require further addition.  I proposed to annex the document to this judgment for these reasons, but also in the hope that it might stand as a template for future practice. 

26. In this respect I would repeat the observations of Holman J in an NHS Trust v MB (A Child represented by CAFCASS as Guardian ad litem) [2006] EWHC 507, [2006] 2 FLR 319.  The preparation of such a list is an enormously useful discipline which assists both during the evidence, the submissions, and of course for the Judge in the preparation of his judgment.  Holman  J suggested that in cases such as this they should be part of "the standard preparation of a case", I respectfully agree, noting, as he did, that the list can always be added to or amended in the light of the evidence as it evolves. 

27. Dr B dealt in his oral evidence and in his report with the suggestion that there should be parenteral feeding via a central line.  He told me that he did not support this as a form of treatment at all, predominately, because it is a treatment that is reserved for patients in extremis, usually where the gut is very seriously damaged and is unable to absorb food and nutrients.  In those circumstances the options are very limited.  A, however, has a perfectly normal gut which has been proven to absorb food and nutrients in the previous NJ feeding regime.  He considered that as A was at risk in relation to the removal of lines which are inserted there is a risk that she might try to remove the central venous line which goes into the Vena Cava, which in such circumstances could lead to massive haemorrhage or death. 

28. That to my mind speaks for itself but in addition to that grave obvious and unacceptable risk there are other potential complications including infection and in the medium term potential liver damage leading to possible liver failure. By contrast, the NJ feeding used long term and in a perfectly safe way has only a low risk of slight gastric erosion caused by the tube and potentially some discomfort falling short of pain during feeding, which if necessary, could be managed with mild analgesia.  The balance of the two options is strikingly clear.

29. I have no doubt that this has been explained to the mother in clear and simple terms, it had been reduced to writing in a report.  She had the benefit of a solicitor and extremely experienced counsel.  Why in these circumstances with no expert evidence to support her alternative course and with Dr B saying in terms that it would be unethical to pursue it she continued to cleave to it as a possibility until so late in the day it is difficult to understand. 

30. In evidence she did not pursue it with vigour but to my mind she did not wholly abandon it either.  I found her reaction to this evidence and to Dr B's evaluation of risk rather troubling.  The preferred solution, as I understood it, advanced by the mother, was that there should be parenteral feeding by a PICC line.  This also involves risks of infection subcutaneously, possible aspiration, and would not in any event deliver sufficient nutrients to A at this critical time. 

31. Plainly this option too carried an unacceptable risk and could not in and of itself accomplish the medical objectives at this stage.  What is disturbing of course is that the NJ tube feeding has already been established to work.  It is illustrated most graphically by charts showing the weight gain to which I have referred.  The mother had sight of them and still resisted it.  She has in my judgment a seriously distorted perspective on the medical issues which are mirrored almost exactly by A herself. 

32. The mother's resistance to the only obvious course of treatment at a point where A has descended to a critical 'red' stage of malnourishment can only be interpreted as a dysfunctional understanding of her daughter's needs, physically and emotionally.  She is a lady who seems to me to be troubled psychologically, and I hope she will engage as soon as possible with appropriate experts to see if she can be helped.  Despite all this I have no doubt that she wants the best for her daughter.

33. I approach the issues in the case from the starting point that there is a 'strong presumption in favour of a course of action which would prolong life, but that presumption is not irrebuttable': Kevin Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554.

34. The 'intellectual milestones that Wall LJ (as he then was) identified in that case remain a valuable guide and bear repetition:

i) the Judge must decide what is in the best interest of the child (an objective exercise);

ii) in doing so, the child's welfare is a paramount consideration;

iii) the Judge must look at it from the assumed point of view of the patient;

iv) there is a strong presumption in favour of the course of action that would prolong life but, that presumption is not irrebuttable;

v) the term 'best interests' encompasses medical, emotional and all other welfare issues.

35. I have been able to consider A's own wishes as expressed in an email which I am told and accept that she typed out on a laptop in her hospital bed.  Those wishes are expressed in the third person because as I understand it a template to assist her had been prepared by her solicitors, perfectly properly.  She states amongst other expressed wishes: 'A doesn't want NG tube or NJ tube because she experiences pain, discomfort, chokes me when vomiting and was traumatic experience, it was like torture for her'. 

36. "A doesn't want to take Fortisip or Fortijuice, she either wants to eat or have PN because everything else has been exhausted and not tolerated or both eat and have PN".

37. "If she is to stay in hospital she would like to go elsewhere, anywhere other than the Children's Hospital, somewhere further away with no connections… because she doesn't think that the Children's Hospital is capable of curing her vomiting because she has been there too long without improvement and the doctors do not have her medical background correct.  It is worrying because she has been here so long".

38. "A didn't  binge eat or drink as much as is written down here, there has never been effortless vomiting and as Dr G hasn't seen her eat or drink and A doesn't know how she can say her vomiting is effortless". 

39. "A is very clear that the hospital clinicians don't get the medical history right, or even what she does everyday.  They don't know her as a person and when she tries to correct them they look like they are making a note but don't correct anything". 

40. "A is also concerned that the recent report written by Dr B and Dr G have far too many inaccuracies in it" (sic).

41. Dr G, the Consultant Psychiatrist, told me that she found A to be willing to discuss her physical health symptoms, but had shown no capacity to focus on her emotional feelings or the 'powerless nature of her own situation'.  Dr G told me that A presented as a much younger girl, sometimes petulant and child like.  It was, she said, sometimes difficult to remember that she was approaching 16 years of age.  Dr G told me that in certain aspects of her decision making A is able to understand issues, but she lacks a real appreciation that unless immediate action is taken that she will die.  What struck Dr G most was A's complete lack of fear or worry about her current health predicament "she does not appear to have any understanding of the severity of her predicament and denies being worried or fearful about it", she told me. 

42. She was very clear that A would benefit from input from the Child and Adolescent Mental Health Service and was of the view that she was suffering from 'a very severe complex psychosomatic presentation'. In her view the components of this are: her severe and intractable effortless vomiting whenever food is ingested, her exhaustion, her reduced mobility to the extent she has required a wheelchair, and her pain.  There is no evidence that she is suffering according to Dr G from eating disorder cognitions, but there is evidence she has severely disordered eating behaviours.  Dr G was of the view that she would benefit from specialist services provided to her at X House, an annexe to the Children's Hospital.  Predictably A and her mother are resistant to this course, which is now part of the overall declaration of best interest that the Trust seek.  A crucial aspect of the proposal involves "socialising therapy", the object being to help A build up contact with her peer group and her time in school as her overall physical condition improves.  It was part of the attraction to Dr G, at least as I perceive it, that X House would facilitate less parental contact (i.e. to the mother) compared to the paediatric wards, entirely due to the intensity of the therapeutic programme.  It was intended such programme commenced after a period of approximately 2 weeks of intensive nutritional import by the NJ tube. 

43. Surveying the wide canvass of medical and social issues and having particular regard to what A says to me and affording it proper weight and respect, it is nonetheless clear, in my view compelling, that A's best interest require the declarations that the Trust seek both in relation to the medical treatment and the planned therapeutic support at X House thereafter. 

44. To ensure that the procedure has the greatest chance of success particularly in its first two crucial weeks I think that it would be helpful if A, and her mother, both had a rest from each others company for a period.  A's mother has been in almost constant attendance now at the hospital for months.  She is visibly exhausted which may be clouding her objectivity.  In any event her resistance to the course proposed is likely to be an impediment to its success, which at this point is not a chance I am prepared to take.  I have therefore authorised the suspension of contact for this period.

45. It is also clear that the relationship between the hospital, social services and A has become conflictual.  I heard evidence that A requires decision making from an independent 'authority figure'.  It quickly became obvious that the figure should be the Judge.  That led me to take two unusual courses:

i) to invoke the parens patriae jurisdiction and to make A a Ward of Court for the coming weeks in order that she is clear where the ultimate responsibility for the decisions  taking  lies;

ii) to visit her in hospital to let her know personally why she is a Ward of Court and why and by whom the decisions regarding her treatment has been taken.  I have explained that it is neither she nor the Doctors who made the decisions.  I have done so in the hope that the conflict between them may be reduced (a note of what I told her has been prepared, approved and filed with the papers).  

46. I have sanctioned the use of reasonable force to ensure that the NJ tube is put in place.  I do not make that declaration lightly. I firmly hope it is unnecessary but it seems to me that A's situation is so extreme that I must do all I can to ensure that she has the best attempt of survival.  I have also sanctioned sedation, if necessary.  The Trust has requested that I grant an order permitting them to use reasonable force to prevent A leaving the hospital.  I signalled in strong terms there was no prospect of such an application succeeding.  There was no evidential basis for it, at the moment, and in the weeks ahead it is unlikely that A will even be able to walk unaided.  That kind of order on a young person, indeed on any autonomous adult should, in my judgment, always require compelling and cogent evidence.  Sensibly, the Trust withdrew its request.  In all circumstances therefore I make the declarations set out and annexed to this judgment.






Will prevent her death and prolong her life: A's heart/pulse rate are slowing down below normal levels due to malnutrition. If this remains unaddressed her vital organs will shut down and she will die within the next 8-12 weeks.

Against the will of A: it may cause distress, anxiety and efforts by the child to sabotage the treatment (including pulling out the tube).

Tampering with the nasal tube (including removal) will cause no harmful effects to A.

Against the will of her mother: the child may be caused distress by her mother's anxiety.

The nutrition, fluids and medication passes straight to the small bowel, bypassing the stomach, and if coupled with no oral intake ought to substantially reduce the very unpleasant effect of vomiting up to 30 times a day.

Risk of gastric erosion.

Over a six week trial of NJ feeding between 12 July and 6 September 2013 A gained weight (not oedema) circa 2 kg. This is a proven effective treatment for her malnourishment.

Risk of some discomfort during feeding via NJ tube.

Painless and relatively swift procedure to pass the tube (circa 5 minutes) (particularly with the effective use of a nasal local anaesthetic) – this is so if it is reinserted after removal.

To manage the risk of discomfort mild anaesthesia may be offered with the risks inherent in the use of anaesthesia of this type.

Once fluids, and nutrition, are tolerated medication can be passed through the tube also, thereby removing the need for IV medications.

Further breakdown of the relationships between the treating team and the child and her mother.

NJ feeding can be carried out at X during the day thereby allowing A off the ward to engage in psychosocial therapeutic intervention.

Use of restraint may be necessary  to insert the tube or prevent A form leaving the ward or the radiography department whilst the tube is inserted and sited.

NJ feeding has the potential to substantially improve A's physiological condition within circa two weeks (10-12 days). With the potential to return to full physical health (no long term physical sequelae).

May need oral sedation or short acting anaesthesia to complete the procedure with the risks inherent in the use of these drugs).

Oral intake can be added to the regime in a managed way once the malnutrition has resolved and her physiological condition and psychological condition substantially improve.


May be used in the long term and is substantially a safe treatment.






Both A and her mother wish to have this.

General anaesthetic would be required to site a central line. An invasive procedure. A was very distressed by being 'put to sleep' in October for a colonoscopy.

A believes that if the feed is bypassing her gastric system then she will not be in any discomfort or be at risk of vomiting.

A's gut is working normally, it absorbs nutrients and food (proven by previous NJ feeding programme). No reason to bypass this.

May build trust between family and clinicians if A and her mother achieve the treatment of their choice.

Limitation on the amount and quality of the nutrition that can be provided intravenously (which is not present in enteral feeding by NJ)


The risk of sepsis is significant.


If pulled out by A this could lead to massive haemorrhage and even death. On the 11.10.13  a PICC line (surgically sited) was pulled out slightly, it then started leaking. Concern that A had pulled her line. It was removed three days later.


Medium term parenteral nutrition can cause damage to the liver leading to liver failure.





A can still eat food and appear to enjoy taking in food of her choice. She does not complain of nausea.

High risk of re-feeding syndrome leading to her death (due to current state of malnourishment).

Derangement in biochemistry, weakness, lethargy, poor urine output and potentially fatal.

A would agree to this course as would her mother and this would ease the strain upon them when compared to the alternative treatments.

Lack of compliance with instructions as to the intake of food and fluids (gorging on excess amounts as she has in the recent past) prevents adequate monitoring of intake and increases the risks of fatality from re-feeding syndrome.

This is a more natural, less invasive method of treatment.

Takes in significant quantities of food and fluid including some surreptitiously, making it impossible to monitor her intake of food and fluid.


A's poor condition will continue to decline with fatal consequences: she is currently unable to maintain her weight on oral feeds. Despite oral feeds and IV fluids she constantly vomits (still up to 30 times a day); since September her weight has rapidly fallen to severe malnutrition. Now her heart rate is slowing and organ failure will follow (if this decline is not halted) with fatal consequences.


The oral intake greatly increases the instances of vomiting which adversely affects her physiological state.




A would receive wrap around therapeutic support to treat her very complex and severe psycho somatic disorder.

It is against the will of A and her mother, thereby potentially causing her distress and anxiety.

Coupled with the multi-disciplinary treatment of her physiological condition (i.e. treating her malnourishment and monitoring her intake/weight at an adequate level) there is a prospect of successfully rehabilitating A home without NJ feeding.

A may need to be deprived of her liberty to keep her on the unit (she is likely to be compliant but absconding behaviour is a possibility).

A would be rehabilitated back to home and education through a programme of physiotherapy and occupational therapy and socialisation.

Force may have to be used to keep A at X House or to take her to it.

The prognosis for A is good if she engages in this programme.

If a physical cause has been missed then A may obtain little, if any, benefit from the placement and an earlier resolution of her physical health problem would be compromised.

No other proposed treatment tackles the underlying psychological condition: they are directed at the secondary effects of it. In the absence of this programme of work, A will be stuck in a cycle of poor compliance with feeding regimes, NJ feeding and long term hospital inpatient treatment. There are dire social and educational consequences that flow from this cycle as there are chronic and perhaps fatal physiological ones.

It will last for a period of at least three months and many restrictions upon her with endure for the duration of the programme (although subject to review as she is treated)


There would be restrictions on the time that she can see her mother and sisters (limited to two evenings a week plus an afternoon a week and all weekend)


1. It is lawful to and in the best interests of A to have a naso-jejunal tube inserted and reinserted on any occasion that it is removed.

2. It is lawful to and in the best interests of A to receive fluids, nutrition and medications through a naso-jejunal tube.

3. It is lawful to and in A's best interests to receive treatment and assessment by the Child and Adolescent Mental Health team at  X House, Y Children's Hospital.

4. It is lawful to and in A's best interests to be restrained and/or for reasonable force to be used against her, only insofar as it is proportionate and necessary, to:

(i) insert and/or re-insert an naso-jejunal tube; and

(ii) ensure adequate fluids, nutrition and medication is administered to her; and

(iii) convey her to and from ward Z at the Y Children's Hospital to and from the radiology department on such occasion as the NJ tube has been inserted and/or the position of the same requires assessment and/or re-siting; and

(iv) convey her to and from ward Z  at the Y Children's Hospital to and from the X House at the Y Children's Hospital  for the purposes of assessment and treatment; and

(v) prevent her from leaving the radiology department on such occasion as the NJ tube has been inserted and/or the position of the same requires assessment and/or re-siting; and

5. It is lawful to and in A's best interests to have administered to her, for the purposes of facilitating the insertion and/or reinsertion of the NJ tube and the administration of fluids, nutrition and medication through the NJ tube, the following medications:

(i) anaesthetic spray into her nostrils before the insertion of the NJ tube; and/or

(ii) sedation, to include general anaesthesia.

6. It is lawful and in A's best interests for servants and/or agents of the Applicant to prevent and/or suspend and/or restrict and/or supervise contact between A and her mother, M, her father, P and her family members as advised by A Local Authority (who have care and control of the ward) following consultation by the social care team with the treating clinicians and/or as directed by the court whilst she is placed at the Y Children's Hospital.

7. It is directed that A be placed at and shall remain as an inpatient at X House and/or ward Z, Y Children's Hospital. The Applicant is authorised to detain A at X House and/or ward Z, at Y Children's Hospital.

8. Permission to the staff of ward Z, and/or the staff of the Child and Adolescent Mental Health Team at the Y Children's hospital and/or any treating clinician to remove any foodstuffs, fluids, drinks, medications or other items that may be ingested by A from her directly or from her personal belongings.

9. The declarations in this order and paragraph 8 above shall continue until the first to occur of the following events:

(a) The discharge of the child from the Y Children's Hospital and/or X house (whichever be the later); or

(b) The date of the  hearing listed in accordance with paragraph 10 below;

(c) Further order of this court.

10. The matter shall be listed for a review of the declarations before Mr Justice Hayden on a date to be fixed not later than 12 weeks from this date (ELH 2 hours).To be listed in accordance with counsel's availability. The clerk to Miss Cavanagh shall liaise with the clerk of the Rules and the clerk to Mr Justice Hayden to fix a date.

11. By 4pm on the 7 February 2014 the Applicant shall file with the court and serve upon the parties a statement from Dr B, Consultant Paediatric Gastroenterologist, setting out A's progress as against the treatment plan and identifying any use occasions when the terms of this order that relate to reasonable force (paragraphs 4 and 5) have been used.

12. No later than 6 weeks after A is placed at X House, and in any event no later than the 24 March 2014 the Applicant shall file and serve a statement from Dr G, Consultant Child and Adolescent Psychiatrist setting out A's progress as against the treatment plan and updating the court if there have been any use occasions when the terms of this order that relate to reasonable force (paragraphs 4 and 5) have been used.

13. The clerk to Mr Justice Hayden shall be notified by email (and thereafter the parties to this application) in the event that a general anaesthetic is administered to A in accordance with the provisions of paragraph 4 and/or 5 he shall be notified as soon as reasonably practicable after the administration of the anaesthetic.

14. Nothing shall be published which leads to the identification of the child concerned and the parties to this application including those clinicians responsible for the First Respondent's treatment until further order of the Court.

15. Liberty to any party to apply to vary these declarations on notice to the other parties.

16. Costs reserved.