G, R (On the Application Of) v Portsmouth Hospitals NHS Trust

In disputes about medical treatment for a child, the court should determine the child's best interests on the facts existing when the dispute arises. It should not ordinarily issue an anticipatory declaration governing a hypothetical future crisis, because the relevant medical, parental and welfare considerations may be almost infinite and the application of established principles is fact-sensitive. Parents and doctors should seek agreement after full consultation. If a grave conflict remains, the issue should be brought promptly before the court. Judicial review is not excluded as a matter of jurisdiction, but relief may properly be refused where the impugned situation has passed, future facts are uncertain, and judicial review or a broad declaration would be too blunt.

The mother of a severely disabled child challenged the respondent NHS Trust's past decisions about morphine, resuscitation and limiting active treatment. The relationship with the Trust had broken down, and alternative care arrangements were available. Scott Baker J declined relief on the judicial review application, considering the dispute unsuitable for effective determination through that procedure and leaving the lawfulness of the Trust's conduct undecided. The mother sought permission to appeal, in part to obtain guidance for any future admission. The Court of Appeal had to decide whether it was appropriate to entertain the appeal and give anticipatory guidance about treatment in a future, potentially different, crisis.

Lord Woolf MR gave the substantive judgment. Butler-Sloss LJ and Robert Walker LJ agreed.

1. Disposition and scope. The application for permission was refused and dismissed, with no order as to costs. The Court accepted the judge's discretionary decision not to grant relief, but treated the formulation that the matter was incapable of judicial review as too broad. The judge had expressly left open whether the Trust acted lawfully or unlawfully; the Court likewise did not decide that question.
2. Procedure. Judicial review is a procedure of last resort, but child cases should not be decided by an over-technical choice of procedure. The Family Division could address the dispute through a specific-issue application under section 8 of the Children Act, a best-interests declaration, or wardship. The court has sufficient powers to secure the appropriate route where necessary. The controlling concern is determination of the child's best interests on the material available.
3. Future treatment. An advance declaration telling doctors what they may or may not do in a hypothetical case would be inappropriate. Similar cases may involve virtually unlimited combinations of medical and welfare considerations, and the application of established principles is difficult to anticipate. Parents and doctors should seek agreement after full consultation. If a grave conflict remains, it should be brought promptly before the court, which will decide the child's best interests with regard to the parent's concerns and responsibilities, the doctors' views and appropriate assistance, including from the Official Solicitor.
4. Application to the case. The challenged events had passed, the evidence about them was uncertain, and any future crisis would arise on different facts. Judicial review was too blunt for the sensitive, continuing problem, and a meaningful declaration risked restricting proper treatment. Those considerations justified refusing permission.

1. Court of Appeal (Civil Division). In [1999] EWCA Civ 1914, the court unanimously refused permission to appeal and dismissed the application. No order as to costs.
2. Queen's Bench Division, Crown Office List. Scott Baker J declined to grant relief on the judicial review application. The judgment under appeal did not determine whether the Trust's conduct was lawful.