C, a child aged nine months, suffered from a rare inherited mitochondrial disease which led to dysfunction of several of his organ systems. His condition had progressed since his birth resulting in irreversible brain damage and an inability to move his arms or legs or to breathe unaided. His life expectancy was measured in months. His parents sought to obtain an alternative treatment, known as nucleoside therapy, that was available in the United States of America. The NHS trust which ran the hospital where C was treated applied pursuant to the inherent jurisdiction of the court for declarations that it was lawful and in C’s best interests for his artificial ventilation to be withdrawn, for his treating clinicians to provide him with palliative care only, and for him not to undergo nucleoside therapy. The judge granted the application and made the declarations sought, finding that the body of experienced medical opinion available to him, save for the doctor offering the nucleoside therapy, was unanimous to the effect that the prospect of nucleoside therapy having any benefit was effectively zero and would be futile. C’s parents sought permission to appeal on the grounds that (i) where parents put forward a viable treatment option for their child, that option could only be overriden by the court if it was established that the pursuit of that option was likely to cause the child to suffer “significant harm”, and the usual “best interests” test did not apply; and (ii) the judge had no jurisdiction to grant an order on the application of one clinical team preventing a second clinical team from carrying out a treatment that the latter had offered in the reasonable exercise of its professional judgment.
On the application for permission to appeal—
Held, application granted but appeal dismissed. (1) As the authorities underlined again and again, the sole principle on an application for the court to exercise its inherent jurisdiction in relation to a child was that the best interests of the child should prevail. That principle applied to cases where a parent objected to a proposed course of treatment on the basis that they had a preferred alternative course of treatment. Even if a case for alternative treatment fell at the more favourable end of the spectrum, where there was genuine scope for a difference of view between parent and judge, the court did not evaluate the reasonableness of the parents’ case or introduce any other factor or filter, before it embarked upon deciding what was in the best interests of the child. Although the fact that one alternative treatment option was favoured by a parent might give that option weight or incline the court to be influenced by a reflection that the best interests of every child included an expectation that difficult decisions affecting the length and quality of its life would be taken for it by the parent to whom its care had been entrusted by nature, it was the judge who had to choose the best course for a child and the court would not prefer any particular option just because it had been put forward by the parent. Therefore, the submission that the High Court only had jurisdiction to interfere with a viable treatment option put forward by a parent if the child was likely to suffer significant harm as a result, had no foundation as a matter of law, was contrary to established authority and was therefore plainly in error. It followed from the unanimous professional and expert evidence, that to move C to the USA and expose him to treatment over there would be likely to expose him to continued pain, suffering and distress and where the judge had made clear findings that going to the USA for treatment would be futile, would have no benefit and would simply prolong the awful existence that he found was the current state of C’s life, he was fully entitled, on the basis of those findings, to conclude as he did. In any event, on the facts, there was no viable, alternative treatment for C (paras 94–98, 105, 111–113, 120, 122).
(2) In so far as the argument was made that the hospital had been acting outside its legal powers in bringing its application, it was to be recalled that the issue as to nucleoside therapy had been raised by the parents and not by the hospital. The hospital had brought the application before the court on conventional terms seeking a declaration about their treatment plan for withdrawal of life support and provision limited to palliative care with no requirement on their part to consider nucleoside therapy. It therefore fell to the judge to decide the issue, rather than it being a matter of the hospital having forced its opinion on the parents and thereafter having sought the sanction of the court. The fact that the court’s evidential focus had been largely on the merits of nucleoside therapy demonstrated that the judge regarded the views of C’s parents as an important part of the process upon which he was engaged. Therefore there was no basis for overturning the judge’s decision or the orders he had made, on either ground raised by the parents (paras 116–119, 120, 122).
Richard Gordon QC, Gerard Rothschild and Grant Armstrong (instructed by Harris Da Silva Solicitors) for the parents.
Katie Gollop QC and Susanna Rickard (instructed by Legal Department GOSH NHS Trust) for the NHS trust.
Victoria Butler-Cole and Benjamin Tankel (instructed by CAFCASS Legal) for the child.