An NHS Trust v SR

When parents disagree about serious medical treatment for a child, the court must determine the child’s best interests. It must balance the treatment’s expected benefits against its disadvantages, including long-term side-effects, while giving proper weight to parental views. A proposed alternative treatment requires more than research, experimentation or reported success stories. There must be an appropriately experienced clinician, the necessary facilities, a willingness to assume responsibility for the child’s care, and a properly supported prognosis. Where urgent treatment is required, fairness does not necessarily require a further hearing if the parent has had a sufficient overall opportunity to present the case and delay would prejudice the child.

An NHS Trust applied for declarations concerning the treatment of N, a seven-year-old boy with a malignant brain tumour. Following surgery, the treating clinicians advised urgent radiotherapy and chemotherapy. The mother opposed those treatments and sought further investigation of complementary or alternative therapies. The father and the child’s Guardian supported the Trust’s application.

Earlier proceedings included interim protective orders and a subsequent application for a stay. Ward LJ refused a stay, and further surgery proceeded. The central issues were whether the proposed treatment was in N’s best interests, whether the mother should receive a further opportunity to obtain evidence about alternative treatment, and what ancillary treatment and parental-consent arrangements were required.

1. The court declared lawful the treatment package of radiotherapy and chemotherapy. The decisive consideration was N’s best interests. The advantages of the proposed treatment, including the materially improved survival prospects, substantially outweighed its serious disadvantages, including possible cognitive, hormonal, fertility and secondary-cancer effects.

2. The court accepted the evidence of the consultant paediatric oncologist and rejected the suggestion that the orthodox treatment reflected professional indoctrination. The recommended treatment represented the best available evidence-based treatment for a highly malignant tumour in a child of N’s age. Complementary measures could be used only if they did not conflict with or disrupt the primary treatment.

3. A realistic case for selecting an alternative treatment required more than evidence of research, experimentation, possible therapies or reported cures. It required an experienced clinician able to treat a child of N’s age and condition, access to the necessary infrastructure, willingness to assume responsibility for N’s care, and a properly studied and supported prognosis approaching that of orthodox treatment. The court applied the principle stated in AVS v NHS Foundation Trust [2011] COPR Con. VOL. 219, that the best-interests question may be academic where nobody is available to undertake the proposed treatment.

4. Although the mother had an Article 6 right to a fair hearing, a further hearing was unnecessary. She had received a sufficient overall opportunity to obtain and present evidence, and further delay would leave urgent treatment arrangements uncertain and potentially harm N.

5. The Trust was authorised to provide reasonable ancillary care, after consultation where practicable, and to act on the father’s consent alone for further treatment. The father was granted residence of N during treatment, and the mother was prohibited from removing N from his care. The mother undertook not to apply for a passport for N before 1 December 2013 without the father’s consent.

• Court of Appeal: Ward LJ refused an urgent application for a stay of the order authorising surgery.
• High Court (Family Division): declared the proposed radiotherapy and chemotherapy lawful and made consequential medical-treatment and residence orders.