The NHS Trust v A (a child) & Ors

In a dispute between parents and doctors about treatment for a child lacking capacity, the court must exercise its own independent and objective judgment. The governing test is the child’s best interests, considered in the widest sense. The court must balance medical, emotional, sensory and other relevant factors, attaching considerable but not absolute weight to the preservation of life.

Parental views deserve careful and respectful consideration, particularly where the parents know the child well. Their own wishes are not determinative, except so far as they illuminate the child’s welfare and the value of the parent-child relationship. Religious belief and the possibility of a miracle cannot affect an objective assessment based on medical evidence and reason.

The hospital applied for a declaration permitting a bone marrow transplant for a seven-month-old child suffering from haemophagocytic lymphohistiocytosis. Without transplantation the child would inevitably die within about one to two years. The proposed treatment offered approximately a 50 per cent prospect of cure and a normal life expectancy, but involved substantial pain, risks of death and serious impairment, and a high risk of infertility.

The parents, who were devoted and well-informed, opposed treatment because of its burdens and their assessment of the risks. The child’s guardian supported transplantation. The central issue was whether transplantation was in the child’s overall best interests despite the parents’ refusal.

1. Independent judgment. The court had both the jurisdiction and the duty to decide the dispute because the child lacked capacity. It was not deciding whether the parents’ decision was reasonable, but whether treatment was objectively in the child’s best interests. The court adopted the ten propositions stated in An NHS Trust v MB, [2006] EWHC 507 (Fam).
2. Best interests. Best interests had to be understood in the widest sense. The court had to balance all relevant considerations, including the prospect and quality of life, pain, suffering, treatment burdens, medical risks and the instinct to survive. A strong presumption favoured prolonging life, but it was not absolute or necessarily decisive. The approach in Re J (A minor) (wardship: medical treatment), [1991] Fam 33, remained applicable.
3. Parental views. The parents’ knowledge of the child and their experience of her suffering were highly relevant. This was a genuine case for debate rather than one founded on scruple or dogma. Nevertheless, the court’s own judgment prevailed after due respect had been given to the parents’ position. The guidance in Re T (Wardship: medical treatment), [1997] 1 FLR 502, and Re Z (A minor) (Identification: restrictions of publication), [1997] Fam 1, supported that approach.
4. Application. The medical evidence established a real prospect of a full and normal life, set against certain death without treatment. Pain and the treatment risks were serious but could be managed. Even certain infertility could not outweigh transplantation if the treatment was otherwise in the child’s best interests. Religious faith and the possibility of miraculous healing were excluded from the objective assessment.
5. Order. The court declared that the transplant and necessary prior treatment could lawfully proceed notwithstanding the parents’ refusal, subject to specified medical certification and donor-match conditions. Following transplant failure or life-threatening complications, treatment could proceed in accordance with the parents’ wishes. Treatment was to be administered with the least distress and pain and with the greatest dignity.