OT (A Child), Re

In urgent proceedings about medical treatment for a child, the timing of an application to the court is fact-specific. An application made during a medical crisis is not automatically procedurally invalid or contrary to Article 8. The court must balance the benefit of earlier consideration, when medical evidence may develop, against the practical risks of waiting until a crisis requires a rushed hearing. Where the evidence is clear, the child’s condition is deteriorating and a full hearing has been conducted with reasonable opportunities to obtain responsive evidence, refusing an adjournment may be necessary to protect the child’s best interests.

OT was a ten-month-old child with a progressive mitochondrial condition, severe brain damage and complete dependence on artificial ventilation. An NHS Trust applied urgently to the High Court for orders permitting limits on resuscitation and other treatment and, ultimately, withdrawal of ventilatory support. Mrs Justice Parker made interim orders on 6 March 2009 and substantive orders on 19 March 2009 after a ten-day hearing.

OT’s parents sought permission to appeal. They argued that the Trust had approached the court too late and that the judge had wrongly refused adjournments needed to obtain further expert evidence. The central issue was whether the procedure was unfair and infringed OT’s rights under Article 8.

1. Permission to appeal was refused. The judgment was delivered by Lord Justice Wilson on behalf of both members of the court. The proposed appeal effectively concerned whether the High Court judge had acted outside her discretion by refusing an adjournment.
2. The court treated the timing of an application concerning disputed medical treatment as fact-specific. Portsmouth Hospitals NHS Trust v Wyatt was understood as recognising a balance between applying before a crisis, when medical evidence might change, and waiting until nearer the crisis, when a rushed hearing might create practical difficulties. The decision did not establish that the Trust’s application in the present case was unlawfully late.
3. Glass v. UK did not assist the parents. That case involved the administration of diamorphine without the hospital first obtaining court intervention to resolve the dispute. It did not establish that making an application only when an emergency had developed necessarily infringed Article 8.
4. The parents had received medical records and the substantive evidence before the hearing. They had legal representation, opportunities to consult experts, and a specific opportunity to obtain an assessment from Dr Vince. The hearing lasted ten working days and the judge allowed time for the parents and their advisers to consider the evidence. The court found the medical evidence clear and unambiguous, and the child’s independent representative supported the proposed course.
5. In those circumstances, an adjournment would itself have been contrary to OT’s interests. The judge had conducted a full and careful determination with urgency proportionate to the child’s deteriorating condition. There was no procedural invalidity or Article 8 infringement warranting permission to appeal.

• Court of Appeal (Civil Division): refused the parents’ application for permission to appeal, giving reasons in [2009] EWCA Civ 409.
• High Court of Justice, Family Division: Mrs Justice Parker made orders on 6 and 19 March 2009 concerning resuscitation, escalation of treatment and withdrawal of ventilatory support.