An NHS Trust v SK (Best Interests Decision -Palliative Care)

In disputes about medical treatment for a child lacking decision-making capacity, the court must make its own objective best-interests decision. Best interests include medical, emotional, sensory, social and psychological welfare. The court must consider the child’s perspective, the treatment’s nature and prospects of success, the preservation-of-life presumption, and the views of doctors, parents and child. The child’s expressed wishes may be given reduced weight where they have been substantially shaped by a parent’s damaging influence. A treatment may be declared in the child’s best interests without compelling it where compulsion would cause disproportionate distress or undermine valuable family support. The court cannot require doctors to provide treatment contrary to their professional judgment.

An NHS Trust applied under the inherent jurisdiction for declarations and protective orders concerning the palliative treatment of SK, an 11-year-old boy with recurrent osteosarcoma and metastatic lung disease. His parents disputed the diagnosis and prognosis and opposed the proposed palliative regime, which included psychological support, symptom control and chemotherapy. The Children’s Guardian supported the Trust’s plan but opposed compelling chemotherapy. The central issues were whether the diagnosis and terminal prognosis were established and whether the proposed treatment, including the limits on compulsion, was in SK’s best interests.

1. Jurisdiction and governing principles. The court could grant a declaration under its inherent jurisdiction or an order under the Children Act 1989 because SK lacked capacity to make the treatment decision. The court’s task was to take over the parents’ duty to consent or refuse treatment and exercise its own independent judgment. It could not require doctors to undertake treatment contrary to their professional judgment.
2. Best interests. Applying the principles identified in In Re J (A Minor)(Wardship: Medical Treatment) [1991] Fam 33, An NHS Trust v MB [2006] EWHC 507 (Fam), Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554 and Kirklees Council v RE and others [2015] 1 FLR 1316, the court had to consider welfare in its widest sense. This included the child’s likely attitude, medical benefits and burdens, prospects of success, quality of life, pain, suffering, emotional and social welfare, and the views of the parents and child. A strong presumption in favour of preserving life existed, but it was rebuttable.
3. The diagnosis and terminal prognosis were established on the evidence. Proper pain and symptom management, psycho-oncology and the proposed palliative treatment plan were in SK’s best interests. His apparent opposition to pain medication and chemotherapy was heavily influenced by his mother’s entrenched beliefs. The court therefore disregarded that damaging influence when assessing SK’s independent perspective.
4. Palliative chemotherapy was declared to be in SK’s best interests and could be administered if he agreed to co-operate. It was not in his best interests to compel him to undergo it, given his strong opposition, the limited time available, the importance of his relationship with his mother and the uncertain prospects of benefit. Continued psychological support and symptom management were nevertheless authorised.
5. The court made the orders sought by the Trust, including provisions preventing the parents from obstructing or interrupting the declared treatment regime.