Wyatt & Anor v Portsmouth Hospital NHS & Anor

Decisions about life-sustaining treatment for a child must turn on the child’s best interests. Welfare is paramount and encompasses medical, emotional and all other relevant considerations. The court must assess benefits and burdens from the child’s assumed viewpoint, giving strong but rebuttable weight to preserving life. Intolerability is a relevant consideration, rather than a separate threshold or supplementary test.

Prospective declarations concerning an anticipated medical crisis may be justified on the particular evidence. Their permissive character preserves clinicians’ responsibility to assess the circumstances when treatment becomes necessary and to consult the parents. Material changes may require reconsideration. Courts should exercise caution with open-ended declarations and determine particular disputes rather than supervise continuing treatment plans.

Charlotte Wyatt was a profoundly disabled child who had remained in hospital since her premature birth. Her parents, Darren and Deborah Wyatt, disagreed with the doctors treating her about ventilation in the event of a serious respiratory infection. Portsmouth Hospitals NHS Trust, which provided her care, invoked the High Court’s inherent jurisdiction. Charlotte participated through a CAFCASS guardian.

In October 2004, Hedley J made declarations permitting doctors to withhold ventilation in specified circumstances. Following further medical evidence, he refused the parents’ application to discharge those declarations in April 2005 and directed an October review. He granted permission to appeal on whether the decision should await an immediate medical necessity. The parents also renewed their application for permission to challenge his assessment of best interests.

The Court of Appeal considered whether intolerability supplied a separate legal threshold and whether continuing prospective declarations was justified despite improvements in Charlotte’s condition. Information about subsequent progress also raised the need for an earlier review.

1. Permission to appeal on the best interests question was refused. The appeal on the timing question was dismissed. The review of the declarations was to be accelerated if possible, with a September directions appointment before another Family Division judge in Hedley J’s absence.

2. The judge had applied the correct best interests approach. The child’s welfare was paramount. Assessment had to proceed from the patient’s assumed viewpoint and encompass medical, emotional and all other welfare issues. There was a strong but rebuttable presumption favouring treatment which prolonged life. All relevant benefits and burdens required consideration, with the parents’ wishes receiving profound respect and weight. A balance sheet was a helpful practical aid: Re J (a Minor) (Wardship: Medical Treatment), Re A (Male Sterilisation) and Re S (Adult Patient: Sterilisation).

3. Intolerability supplied neither a gloss on best interests nor a supplementary test. It remained a valuable guide within the wider assessment. The majority reasoning in Re J had not adopted Taylor LJ’s intolerability formulation. Munby J’s identification of intolerability as the touchstone in R (Burke) v GMC was incorrect as a separate threshold and was, at best, obiter. Observations about intolerability in W Healthcare NHS Trust v KH were also obiter and supplied no general guidance governing children’s treatment.

4. On the accepted medical evidence, the judge could conclude that ventilation offered insufficient benefit to justify its burdens. Although Charlotte’s daily condition had improved, her underlying condition remained grave. Intensive treatment was unlikely to preserve her life, risked substantial deterioration even if she survived, and could prevent a peaceful death. The declarations concerned treatment during a specified crisis, rather than withdrawal of her existing care.

5. The timing decision depended on the particular facts. The anticipated respiratory crisis and disagreement were sufficiently identifiable, and a crisis hearing would lack the extensive evidence available in advance. Treatment might otherwise have to begin while a court decision was sought, despite being contrary to Charlotte’s best interests. The judge’s reasoning justified continuing the declarations with review.

6. The declarations were permissive. They preserved clinical assessment of Charlotte’s best interests in the circumstances at the time, with parental consultation. Material changes could make the declared course inappropriate. Subsequent developments required evaluation on proper evidence by the trial judge, rather than factual reassessment on appeal. They therefore justified an accelerated review.

7. As guidance on practice, caution was required before granting open-ended declarations. The court should decide a particular issue on a particular factual basis. Continuing management of a treatment plan belonged to clinicians in consultation with the parents.

• Court of Appeal: In [2005] EWCA Civ 1181 , permission to appeal on best interests was refused and the timing appeal was dismissed. The court directed steps towards accelerating the review of the declarations.
• Court of Appeal: On 9 February 2005, in [2005] EWCA Civ 185, permission to appeal against refusal to stay the October declarations was refused.
• High Court, Family Division: On 21 April 2005, following further expert evidence heard in March, Hedley J refused to discharge the declarations. He directed an October review and granted permission to appeal on timing, while refusing permission on their substance.
• High Court, Family Division: Following his judgment of 7 October 2004, identified as [2004] EWHC 2247 (Fam) , Hedley J made the principal declarations on 8 October. Further declarations concerning palliative care were made in December. In January 2005, he refused a stay and authorised further expert evidence.