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Pennine Care NHS Foundation Trust v Mrs T & Ors (Rev1) [2022] EWHC 515 (Fam)

This decision of Mrs Justice Morgan concerns an application for authorisation of medical treatment by two health trusts, cooperating over the care of a 17 year old child, described in the judgment as Amy (presumably a pseudonym).

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Amy is described as 'talented, intelligent and a much-loved sister and daughter. She is academically very able, socially popular, considerate of others, kind and has a keen interest in social justice and environmental issues. She has in every imaginable sense a great deal to live for and her whole adult life before her. Yet from about September of 2019, in ways that I will examine further in the course of this judgment, her mental and then her physical health began to decline such that the application before me today under the inherent jurisdiction is to authorise the use of a highly invasive, very unusual medical procedure so as to attempt to preserve her life and to try to buy time for her to be given – and to have the physical strength to benefit from - treatment and therapy.'

The court described 'two striking features' of the application:

• The medical procedure itself carries with it significant risks; it is out with the experience both of the acute care clinicians involved in her care and of the mental health team looking after her. It is proposed only because the professional view of those proposing it is that there is nothing else to be done which may achieve a positive outcome. Her trajectory is towards death.

• If somehow sufficient time and physical strength could be found to permit it, those treating her were optimistic that there were treatment options which could help her. The application was not therefore about authorisation of palliative care.

Amy lacked capacity to make the decision for herself. 'The mental disorder by which she is afflicted means that whilst she is perfectly well able to receive information and on one level to understand the meaning of it, she is prevented from using or weighing that information so as to make decisions.'

Amy was reported to have been electively mute in recent times, making it difficult for the Guardian to obtain instructions. She was, during the Guardian's visit even when closely supervised showing signs of intense distress and concerted attempts to behave in ways which would cause her physical harm.  The Guardian supported the application 'on a v narrow balance', but the issues she had raised in her position statement prompted the filing of helpful up to date evidence which indicated that Amy was showing signs of deterioration and was no longer medically stable.

The parents consented to the plan. The court records that this was not therefore a case where the clinicians and the parents are at loggerheads and the Court intervention is the only way to resolve the impasse. The application was required because of the nature of the treatment proposed.

The court reviews the legal framework that the court must apply in cases concerning the provision of medical treatment to children who are not 'Gillick' competent, noting that it is 'well settled'. Morgan J set out a list of key principles which can be drawn from the authorities, in particular In Re J (A Minor)(Wardship: Medical Treatment) [1991] Fam 33, R (Burke) v The General Medical Council [2005] EWCA 1003, An NHS Trust v MB [2006] 2 FLR 319, Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554, Kirklees Council v RE and others [2015] 1 FLR 1316 and Yates and Gard v Great Ormond Street Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410:

'i) The paramount consideration is the best interests of the child. The role of the court when exercising its jurisdiction is to take over the parents' duty to give or withhold consent in the best interests of the child. It is the role and duty of the court to do so and to exercise its own independent and objective judgment;

ii) The starting point is to consider the matter from the assumed point of view of the patient. The court must ask itself what the patient's attitude to treatment is or would be likely to be;

iii) The question for the court is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken. The term 'best interests' is used in its widest sense, to include every kind of consideration capable of bearing on the decision, this will include, but is not limited to, medical, emotional, sensory and instinctive considerations. The test is not a mathematical one, the court must do the best it can to balance all of the conflicting considerations in a particular case with a view to determining where the final balance lies[…]

iv) In reaching its decision the court is not bound to follow the clinical assessment of the doctors but must form its own view as to the child's best interests;

v) There is a strong presumption in favour of taking all steps to preserve life because the individual human instinct to survive is strong and must be presumed to be strong in the patient. The presumption however is not irrebuttable. It may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering and other burdens are sufficiently great;

vi) Within this context, the court must consider the nature of the medical treatment in question, what it involves and its prospects of success, including the likely outcome for the patient of that treatment;

vii) There will be cases where it is not in the best interests of the child to subject him or her to treatment that will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's and mankind's desire to survive;

ix) The views and opinions of both the doctors and the parents must be considered. The views of the parents may have particular value in circumstances where they know well their own child. However, the court must also be mindful that the views of the parents may, understandably, be coloured by emotion or sentiment. There is no requirement for the court to evaluate the reasonableness of the parents' case before it embarks upon deciding what is in the child's best interests.

x) The views of the child must be considered and be given appropriate weight in light of the child's age and understanding.

[…] The task of the court in cases concerning disputes in respect of the medical treatment of children can be summed up by reference to two paragraphs from the speech of Baroness Hale in Aintree University Hospital NHS Trust v James [2013] UKSC 67, namely:

"[22] Hence the focus is on whether it is in the patient's best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it."

And

"[39] The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be."'

(quotation edited for brevity where marked with […])

Noting that the decision did not concern the withdrawal of treatment, Morgan J accepted that the principle of objective best interests was nonetheless applicable to Amy's case given the serious nature of the treatment proposed, and the court would need to be satisfied that Amy's best interests were met in the widest sense so as to justify the treatment proposed.
The evidence was that if time could be bought then prospects of successful treatment of Amy's OCD were good. However, 'put bluntly Amy is starving to death and that the timescales for effective treatment of her mental health whether by pharmacological or other therapy fall beyond the time by which she will have died.'

The trust wished to sedate Amy for 3-7 days, so as to provide physical investigation and treatment and a sustained period of re-feeding. It was then intended that Amy should be returned to continue intensive mental health treatment and treatment to support her physically in that. The risks of this plan were acknowledged to be high.

The evidence of the intensivists who were being asked to carry out this plan was that the risks were such that it could cause significant harm or even death, and there was no evidence base against which to properly assess the risks. They did not oppose the plan but were anxious to ensure the court was aware of the ethical and practical difficulties. In that context, and given the difficulty obtaining Amy's own views, the court considered it was especially important to consider what alternatives there were for Amy in order to make a decision.

Ultimately all those concerned for Amy, including the court, concluded that there was no other option for Amy, because doing nothing would mean her inevitable death.

The judge noted that Amy's infrequent communication was consistent with a wish to live.

Set against that was what 'appears on one view of it to be a steadfast and robust determination to reject all attempts to provide nutrition. This might well be understood as putting into effect a clear intention by an intelligent young woman to end her life by starvation'. However, the judge accepted the evidence that this is not an intention by Amy but is a manifestation of the symptom of her illness.

It was right that the application had been placed before the court in the circumstances and the order was made as sought, approving the plan.


Case summary by Lucy Reed, Barrister, St John's Chambers

For full case, please see BAILII