Wyatt & Anor v Portsmouth Hospital NHS & Anor

In medical-treatment decisions concerning a child without capacity, the court must decide the child’s best interests through a broad, patient-centred welfare appraisal. The strong presumption in favour of preserving life is rebuttable. The court must weigh the prospective benefits of treatment against pain, suffering, risks and the likely quality of life from the child’s assumed perspective.

Whether life would be intolerable is not a separate test or a gloss on best interests. It is only a potentially valuable guide. A prospective, permissive declaration may be justified for a predictable medical crisis where full evidence cannot fairly be assembled in an emergency, but such declarations require caution, clinical review and, where appropriate, judicial review if circumstances change.

Charlotte Wyatt was a profoundly disabled child with severe chronic lung disease, major neurological impairment and other serious conditions. Her parents wished doctors to provide invasive ventilation if she suffered a respiratory collapse. The treating clinicians considered that ventilation would cause suffering without commensurate benefit and would not be in her best interests.

Hedley J had made declarations in October 2004 permitting clinicians, in specified circumstances, not to intubate or ventilate Charlotte. In April 2005 he refused to discharge them, continued them subject to review, and granted permission to appeal only on whether the decision should instead await an immediate medical crisis.

The parents sought renewed permission to challenge the best-interests decision and appealed the continuation of the declarations. The central issues were the proper best-interests approach and the timing of prospective declaratory relief.

1. Outcome. The court refused permission to appeal on the best-interests question and dismissed the appeal on timing. It directed that the planned review of the declarations be accelerated through a directions appointment before a Family Division judge.
2. The correct test was Charlotte’s best interests, with her welfare paramount. The assessment was broader than medical interests and had to be made from the assumed perspective of the child. There was a strong but rebuttable presumption in favour of life-prolonging treatment. The court had to balance all relevant gains and losses, including pain, suffering, the risks and burdens of treatment, and any likely benefit. The court approved the approach in Re J (a Minor) (Wardship: Medical Treatment) [1991] Fam 33 and the balance-sheet guidance in Re A (Male Sterilisation) [2000] 1 FLR 549.
3. The proposition that intolerability is the touchstone of best interests was rejected. Intolerability was neither an additional test nor a restriction on the broad welfare assessment. It could assist the evaluation in an appropriate case, but could not displace the balance of all relevant factors.
4. The declarations were permissive rather than mandatory. On the evidence available to Hedley J, the anticipated respiratory crisis was sufficiently specific and likely, Charlotte’s underlying condition had not materially changed, and an emergency hearing would not permit the full and careful assessment required. He was therefore entitled to continue the declarations while requiring review. The court nevertheless cautioned against open-ended declarations in cases involving gravely ill children, because a material change in the factual basis may make earlier declaratory relief inappropriate.

• Court of Appeal (Civil Division)—Refused permission to appeal against the best-interests decision and dismissed the appeal against the continuation of the declarations: [2005] EWCA Civ 1181.
• High Court, Family Division—Hedley J, on 21 April 2005, continued the declarations concerning ventilation subject to review. The original declarations had been made in Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Fam).