Wyatt, Re

Where a child lacks capacity, the court may intervene on the application of a person with a proper interest to determine what course is in the child’s best interests. The court may declare that it would be lawful for clinicians to withhold intubation and ventilation where the evidence establishes that the intervention would be futile, cause unnecessary suffering and would not achieve the intended therapeutic outcome.

Such a declaration is permissive, not mandatory. The medical team must continue to exercise its best judgment at the relevant time and may provide other life-saving treatment and palliative care in accordance with the child’s best interests.

The proceedings concerned Charlotte Wyatt, a child aged two and a half who lacked capacity and had severe respiratory problems. Earlier declarations concerning her treatment had been rescinded, and she had subsequently made limited visits home.

Following a serious deterioration caused by an apparently aggressive viral infection, Charlotte required CPAP and faced possible respiratory failure. The treating doctors and independent experts agreed that intubation and ventilation would be futile and would probably not enable her to survive. Her mother believed ventilation could lead to recovery, based on Charlotte’s earlier response to treatment.

The issue was whether the court should clarify the lawfulness of withholding intubation and ventilation while continuing appropriate supportive and palliative treatment.

The court made clear that the medical profession should be free to refrain from intubation and ventilation if, at the time the decision arose, that course was considered to be in Charlotte’s best interests.

1. Jurisdiction and test. Charlotte lacked capacity. Accordingly, on the invitation of a party with a proper interest, the court was entitled to intervene. The governing test was her best interests.
2. Medical evidence. The medical evidence spoke with one voice. Charlotte had deteriorated, was dependent on CPAP and was unlikely to survive intubation and ventilation. The proposed intervention would be futile and would inflict unnecessary pain.
3. Change in circumstances. Her present condition differed materially from the earlier period when ventilation had been followed by recovery. She was older, had reduced lung capacity and was on a downward rather than an upward trajectory.
4. Nature of the declaration. The declaration was permissive, not mandatory. It did not direct the doctors to withhold treatment. It established only that a decision to desist from intubation and ventilation would be lawful, provided the clinicians exercised their best judgment in Charlotte’s best interests.
5. Continuing care. CPAP could continue, with any appropriate increase in support. If Charlotte responded, life-saving treatment short of intubation and ventilation would continue. If she did not, treatment could move to a palliative regime.