An NHS Foundation Trust v AB

In a dispute about life-sustaining treatment for a child lacking decision-making capacity, the court must make an independent and objective assessment of the child’s best interests. Best interests are assessed broadly and include medical, emotional, sensory and instinctive considerations. There is a strong but rebuttable presumption in favour of preserving life. That presumption may be displaced where treatment is futile, or where its burdens, including pain, distress and loss of quality of life, outweigh its likely benefits. The assessment is highly fact-sensitive. Parental wishes must be carefully considered, particularly where parents know the child well, but their own interests are relevant only insofar as they illuminate the value of the child-parent relationship. Treatment may properly be authorised for a limited period where its short-term benefits outweigh its burdens, even though the same treatment would not be justified indefinitely.

The NHS Foundation Trust applied for declarations concerning the treatment of EF, a one-year-old child with an incurable neurodevelopmental disorder who had been ventilated in intensive care. All parties agreed that EF should be extubated. The dispute concerned whether he should thereafter receive further respiratory support.

The Trust sought declarations preventing further artificial ventilation, subject to specified measures under the Emergency Care Plan and Symptom Management Plan. The parents sought one possible reintubation within 24 hours of extubation and subsequent limited bag ventilation. The Children’s Guardian opposed further intubation but supported bag ventilation during the first 24 hours. The central issue was whether the proposed interventions were in EF’s best interests.

1. The court had to exercise its own independent and objective judgment, treating EF’s welfare in the widest sense as paramount. The relevant assessment included the likely benefits and burdens of treatment, the child’s quality of life, pain and distress, and the strong but rebuttable presumption in favour of prolonging life.

2. On the evidence, EF’s neurological condition was incurable and deteriorating. The deterioration was more likely attributable to the underlying neurological disorder than to infection. His limited cognitive functioning meant that he was likely capable of experiencing fear, pain and sadness as well as pleasure and recognition of his parents.

3. Further intubation, even once within the first 24 hours, would be painful and distressing, would require sedation and invasive procedures, and was unlikely to prolong life significantly. Its burdens, including the poor quality of life while intubated, outweighed its possible benefits and it was therefore not in EF’s best interests.

4. Long-term bag ventilation was also not in EF’s best interests. Although less invasive than intubation, it was likely to be distressing and painful, carried risks including aspiration, vomiting, respiratory distress and cardiac arrest, and was unlikely to produce significant prolongation of life.

5. Bag ventilation during the first 24 hours after extubation was justified as a limited exception. Its possible short-term benefit in stabilising EF and allowing further time with his parents outweighed the additional burdens during that defined period. It was to be used at the discretion of the treating team, in consultation with the parents so far as practicable.

6. The court accordingly made the declarations sought by the Trust, with the addition permitting limited bag ventilation during the first 24 hours after extubation. Thereafter EF’s care was to be managed under the Emergency Care Plan and Symptom Management Plan.