Wyatt v Portsmouth NHS Trust & Anor

Where a child lacks capacity, treatment decisions must be made according to the child’s best interests. Parental wishes deserve profound respect and substantial weight, but they cannot be decisive where parents and professionals disagree.

A court may make prospective declarations about treatment during a likely medical crisis. The usual approach is to decide matters in the light of circumstances as they are, rather than circumstances that may arise. An advance decision is justified where the emergency is sufficiently foreseeable and a later dispute would probably create harmful delay, conflict or treatment lacking clinical purpose. Any declaration must remain subject to review and must be applied by the treating authority in the circumstances existing at the time, in consultation with the parents.

This was the third judgment concerning Charlotte Wyatt, a severely disabled child with chronic respiratory disease, profound neurological damage and serious malnourishment. Her condition had improved since the previous judgment, but she remained terminally ill and at high risk of respiratory infection.

The parents sought discharge of declarations governing treatment during a future respiratory collapse. They wished intensive invasive treatment, including intubation and ventilation. The NHS Trust and most medical experts considered that such treatment would probably be futile, would probably cause significant deterioration, and could imperil a peaceful death. The issues were whether invasive treatment would be in Charlotte’s best interests and whether that decision should be made in advance or left until the crisis.

1. Best interests. The court continued to apply the best interests approach adopted in the earlier judgment. The parents’ views were entitled to profound respect and weight, but the law did not make them decisive. The decision belonged to the court where agreement between parents and professionals could not be reached.
2. Proposed treatment. Having considered the medical evidence, the judge accepted the majority view. In the event of respiratory collapse, all reasonable treatment short of intubation and ventilation would be in Charlotte’s best interests. Invasive intensive care would probably not enable her to survive and, if successful, would probably leave her in a condition in which daily life was intolerable. Treatment that was futile and threatened a peaceful death was not in her best interests.
3. Timing of the decision. The usual rule was that declarations should be sought and considered in the light of circumstances as they were, rather than as they might become. That approach was subject to justification in an appropriate case. Here, a major respiratory crisis caused by infection was highly likely, the parents and Trust were highly likely to disagree, and urgent court intervention would probably be required. A further legal conflict during the crisis would add risks without raising issues materially different from those already determined.
4. The declarations should therefore continue. They were not open-ended: they were to be reviewed, and Portsmouth had to decide whether to rely on them in the light of all circumstances existing during the crisis, on the basis of Charlotte’s best interests and in close consultation with her parents. Counsel were to address the timing of review and the form of order.

This was a first-instance Family Division decision concerning the continuation of declarations made in an earlier judgment in the same proceedings. The judgment does not state a citation for that earlier decision.