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NHS Trust v S [2021] EWHC 594 (Fam)

Application by hospital trust for declaration that it is lawful and in the best interests of a nine month old baby to withdraw life-sustaining treatment including ventilation

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Background

S suffered a severe lack of oxygen and blood supply to his vital organs around the time of his birth, and as a result sustained extensive brain injury (severe perinatal hypoxic ischaemic encephalopathy). He had remained on the neonatal intensive care unit since then, requiring ventilation and feeding by naso-gastric tube.

The medical evidence (which included an independent report by the Head of Neonatal Services at GOSH commissioned by the parents) was that S had suffered permanent and irreversible brain damage and that there was no prospect of any improvement in his condition. He was unlikely to be able to see or hear, to ever be able to react to anyone or anything, to feed without a naso-gastric tube or a tube passing through the stomach wall, and to breathe without the support of a ventilator. When he opened his eyes or moved his limbs this was a reflex response rather than purposeful movement, and although there was some evidence that he appeared to respond to the discomfort of suctioning and turning, there was no prospect of him ever mobilising.

The medical professionals involved in his care all agreed that it was in his best interests to withdraw life supporting treatment. Accordingly, the hospital trust, supported by the Guardian, sought the declarations set out at para 1 of the judgment. The parents opposed the application. They sought to take S home on a ventilator (which could only be achieved if he had a tracheotomy, PEG feeding and 24-hour nursing care) without escalating treatment if he deteriorated any further. They believed that S responded to their touch.

Decision

The court bore in mind the strong presumption in favour of the prolongation of life (Re NHS Trust v MB and others [2006] EWHC 507 (Fam)) and focused (as per Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 16) on whether it was in S's best interests to give him medical treatment  rather than on whether it was in his best interests to withhold or withdraw it.

Whilst the benefits of ongoing treatment would mean that S would be alive and would continue to receive love and care from his parents, these were outweighed by the burdens and likely suffering that would ensue: he required deep suctioning every 2-3 hours per day and the medical evidence was that the movements of his jaw in response to this suggested that he could experience pain and discomfort; regular replacement of his nasogastric and NETT tubes needed to be followed by X- rays to ensure that they were properly sited; he faced a variety of longer term problems as he got older (spasms in the muscles causing dislocations or fractures, epilepsy, chest infections, uncontrollable fits, apnoea, sudden cardiac arrest) some of which could lead to his sudden death. In summary, the court found that it was not in S's best interests to put him through all of this simply to keep him alive. The court made the declarations sought.

The court considered, as it must, the views and opinions of the parents as well as those of the doctors. However, although the mother believed S's limb movements when touched or tickled were more than reflex responses, the court found that her longing to see a reaction in her son had coloured her observations. In considering the arguments put forward by the parents, Judd J highlights at para. 21 the anomaly that whilst those who face an application to take their children into care receive full non-means and non-merits tested public funding, those who face an application to withdraw medical treatment from their child do not. Fortunately, the parents in this case, who were not eligible for public funding yet could not afford to pay for lawyers themselves, were represented by counsel for free.

Case summary by Abigail Bond, Barrister, St John's Chambers

For full case summary, please see BAILII