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Parfitt v Guy's and St Thomas' Children's NHS Foundation Trust & Anor [2021] EWCA Civ 362

This case concerns a child (aged almost 6 years) who suffers with acute necrotising encephalopathy ("ANE") from which she developed serious illness and ultimately slipped into a persistent vegetative state ("PVS").

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The NHS Trust ("the Trust") applied to the court for declarations and orders that would permit the withdrawal of life-sustaining treatment. Her mother opposed the application and proposed that Pippa should return home. In order to have any chance of being managed in a home environment, Pippa would require a tracheostomy to deliver ventilation safely and she would need to be transferred to a portable ventilator. The hospital clinicians were unanimously of the view that the mother's proposal was contrary to Pippa's best interests. But some of the independent experts took a different view.

At first instance, Poole J concluded that it was not in Pippa's best interests to continue to receive life-sustaining treatment nor to embark on a trial of portable ventilation which if successful could lead a transition process, carried out over a number of months, towards home care. The Judge therefore made the declarations sought such that the ventilation was to be withdrawn and there be clearly defined limits on the treatment provided to her after the withdrawal of ventilation with the effect that she would be allowed to die. The mother appealed this decision.

The Court of Appeal sets out the principle at the heart of such cases as summarised by Baroness Hale of Richmond in Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591 (paragraph 12)  and the approach to be adopted by a court conducting the necessary balancing exercise as summarised in An NHS Trust v MB [2006] EWHC 507, [2006] 2 FLR 319, (paragraph 13) and Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181
 
Such a decision must be reached having considered all of the relevant factors and what is in the child's best interests. In making that decision, the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the patient. There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable. The term 'best interests' encompasses medical, emotional, and all other welfare issues. The court must conduct a balancing exercise in which all the relevant factors are weighed.

The Court of Appeal was satisfied that the Judge's decision was rightly based on his assessment of Pippa's best interests because her welfare in the widest sense is the paramount consideration having looked at all the evidence, including importantly the views of her family, in particular her mother who has dedicated her life to Pippa and fought so hard to find a way of keeping her alive. The appeal was therefore dismissed

The Court of Appeal saw no difference in the application of the law or the approach of the learned Judge to that of MacDonald J in Raqeeb v Barts NHS Foundation Trust [2019] EWHC 2530 (Fam), [2020] 3 All ER 663. The facts were different which had led to a different outcome.

The Court did note that at some points in the judgment the judge seemed to draw a distinction between "welfare" and "best interests" but having considered earlier authorities Baker LJ could find no basis for distinguishing between the two concepts and the terms are normally used interchangeably. The Judge's distinguishing between the two terms did not undermine his ultimate conclusions.

The mother had also argued that insufficient weight had been given to her views as a parent when considering the option of a trial of ventilation at home, particularly where there was expert support for her position. The Court of Appeal notes the authoritative judgment of McFarlane LJ in Yates v Great Ormond Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410, [2018] 4 WLR 5. With regard to the weight to be given to the views of parents in cases such as this. Each case will depend on its own facts and where there is a fine balance a parent's views may be determinative but it is ultimately a matter for the Court and "the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view".

Case summary by Kieran Pugh, Barrister, Coram Chambers

For full case, please see BAILII