Kirklees Council v Re

When deciding whether life-sustaining treatment should be withheld or withdrawn from a child lacking capacity, the court must make its own objective assessment of the child’s best interests. There is a strong presumption in favour of prolonging life, but it is not irrebuttable. The court must balance the child’s medical, emotional, sensory and wider welfare interests, including the burdens of treatment and its effect on quality of life. Treatment may properly be withheld or withdrawn where it merely delays death, provides no benefit, or imposes burdens that outweigh its benefits. A local authority must apply to the court where there is parental opposition, equivocation or doubt about parental capacity, and the guardian should be involved.

Kirklees Council applied for declarations concerning SE, a seriously ill premature baby receiving intensive life-sustaining treatment. The medical evidence was that he had grave cardiac, pulmonary and developmental problems, suffered significant distress from treatment, had no realistic prospect of recovery and would derive no benefit from further ventilation or resuscitation.

The application was supported by the treating NHS Trust. SE’s mother accepted the medical evidence, while his guardian initially sought fuller investigation before accepting the application. The issues were whether further life-sustaining treatment was in SE’s best interests and whether palliative care alone was lawful.

1. Declarations granted. It was not in SE’s best interests to receive further life-sustaining treatment. It was lawful and in his interests for clinicians to provide palliative care only, and to withhold or withdraw life-sustaining treatment, provided the measures adopted were most compatible with his comfort and dignity.
2. The court applied the objective best-interests approach described in Wyatt v Portsmouth Hospital NHS [2006] 1 FLR 554, NHS Trust v MB [2006] EWHC 507 and Re J (A minor) (wardship: medical treatment) [1991] Fam 33. The child’s welfare was paramount. The court had to consider the matter from the child’s assumed point of view and balance all relevant factors, including pain, suffering, quality of life and the instinct to survive.
3. The principles in Aintree University Hospitals Foundation Trust v James [2013] UKSC 67; [2013] 3 WLR 1299 applied equally to children lacking capacity. The question was whether giving the proposed treatment was in the child’s best interests. Treatment was not futile merely because it could not cure the underlying condition. It was futile where it was ineffective or of no benefit to the patient. The court also had to exercise caution with declarations concerning unpredictable or fluctuating circumstances.
4. The evidence established both the “no chance” and “no purpose” situations identified in the published Royal College of Paediatrics and Child Health guidance. Further treatment would merely delay death, cause substantial distress and pain, and provide no improvement in life quality or potential. Although it might prolong life briefly, the burden was unreasonable for SE to bear.
5. A local authority should not rely solely on a care order to determine such a serious medical issue. Where there is parental opposition, equivocation or doubt about parental capacity, an application to the court is required. Where an interim care order is in force, the guardian should be involved before the decision is taken.
6. The court noted that the January 2014 guidance relied on in An NHS Foundation Trust v AB, CD and EF [2014] Fam Law 969 was only a draft. The May 2004 guidance remained the most recent published guidance.