NHS Trust v Baby X & Ors

In deciding whether life-sustaining treatment should be withdrawn from a child, the court must make an independent assessment of the child’s welfare, treating welfare as paramount. The assessment must be made from the child’s assumed point of view and must balance preservation of life against all relevant medical, emotional and welfare considerations. There is a strong but rebuttable presumption in favour of prolonging life. Parental views deserve substantial respect but cannot confer a veto on treatment decisions. Where treatment is futile, invasive and offers no realistic prospect of improvement, withdrawal and palliative care may be declared lawful if they best serve the child’s welfare. The treating team must reassess the position when treatment is withdrawn or further invasive treatment is declined.

The NHS Trust applied under the inherent jurisdiction concerning a child who had suffered catastrophic, irreversible hypoxic brain damage following a cardiac arrest. He was profoundly unconscious, unable to breathe independently and dependent on mechanical ventilation and tube feeding. The treating team considered continued ventilation futile and contrary to his best interests.

The parents opposed withdrawal. They wished to preserve every possibility of improvement, believed they had observed signs of improvement, and relied on their religious obligations. The central issue was whether continued ventilation or withdrawal to palliative care was in the child’s best interests.

1. Welfare and parental views. By virtue of section 1(1) of the Children Act 1989, the child’s welfare was paramount. The court had to make its own assessment, although the views of committed and blameless parents deserved considerable weight. Those views could not operate as a veto.
2. Applicable approach. The court adopted the six intellectual milestones identified in Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554: the judge must decide what is in the child’s best interests; welfare is paramount; the issue must be considered from the patient’s assumed point of view; the presumption favouring prolongation of life is rebuttable; best interests include medical, emotional and other welfare matters; and all relevant factors must be balanced. The judge expressed full agreement with the legal analysis in NHS Trust v MB and B [2006] EWHC 507 (Fam).
3. Application. X had no realistic prospect of meaningful improvement, awareness or consciousness. Although pain could not be wholly excluded, the evidence indicated that he was probably unaware of significant burdens. Continued ventilation would nevertheless involve persistent invasive treatment, later tracheostomy and PEG feeding, suctioning, and risks of infection and deterioration. Preservation of life was an important starting point, but it was not decisive. The court also considered the significance of avoiding a death isolated from human contact and the absence of any benefit to X from treatment.
4. The treating consultant’s view that X showed no desire or capacity to struggle to survive was accepted as accurate but was given no significant, still less decisive, weight.
5. Disposition. X’s welfare required removal from ventilation and treatment on a palliative basis. The court made a declaration that such treatment would be lawful as being in X’s best interests, rather than an order requiring withdrawal. The treating team had to satisfy itself that the declaration remained applicable when ventilation was withdrawn or further aggressive treatment was declined.