HK (Serious Medical Treatment) (No.3)

In determining serious medical treatment for an incapable child, the court must make an objective assessment of the child’s best interests. Welfare is paramount and includes medical, emotional, sensory and other relevant considerations. There is a strong presumption in favour of prolonging life, but it is not absolute. It may be outweighed where treatment offers no realistic prospect of recovery and imposes substantial pain, indignity or other burdens.

Where treatment is withdrawn, the court should ensure that a clear treatment plan provides appropriate medical, nursing and palliative care. Applications concerning disputed treatment should be brought promptly, with effective communication and, where necessary, emergency hearings. Reporting restrictions require an intense and proportionate balancing of Articles 8 and 10 rights.

An NHS hospital trust applied for declarations concerning the treatment of H, a 14-week-old child who had suffered catastrophic and irreversible brain injury and remained dependent on ventilation. The parents opposed withdrawal of life-sustaining treatment. The court also considered reporting restrictions and the proposed presence of police officers during the child’s final period and death.

The court had made earlier interim orders concerning treatment, including non-resuscitation and limits on treatment escalation. The final issues were whether ventilation should be withdrawn without re-intubation, whether blood transfusions should cease, how H should continue to receive care, whether anonymity should continue, and what arrangements should govern police involvement.

1. Medical treatment. It was lawful and in H’s best interests for the ventilation tube to be removed on or after 8 July 2017, with no subsequent re-intubation, and for further blood transfusions to cease. H had no prospect of survival or recovery. Continued ventilation and transfusions would prolong severe suffering, indignity and intrusive treatment. Appropriate medical, nursing and palliative care was to continue. [2017] EWHC 2991 (Fam), paras 57–66.
2. The court applied the objective best-interests approach described in Re J (A Minor) (Wardship: Medical Treatment) [1991] (Fam) 33, Wyatt v Portsmouth NHS Trust [2005] EWCA Civ 1181 and An NHS Trust v MB and Others (A Child) [2006] EWHC 507 (Fam). Prolongation of life carried considerable weight but was not decisive. The parents’ wishes were relevant and important, but could not outweigh the unanimous medical evidence and the child’s welfare. Paras 52–65.
3. Reporting restrictions. Applying the balancing approach in Campbell v MGN Ltd [2004] UKHL 22 and Re S [2004] UKHL 47, the court continued restrictions protecting the identities of H, his parents, the hospital and treating clinicians. The confidentiality and protection of the family from intrusion outweighed the public interest in identification at that stage. The order was to be reconsidered after H’s death. Paras 68–80.
4. Police presence and case management. The parties’ agreed arrangements were endorsed. Clinical staff, but no police officer, would be present during extubation and while the parents held H before death. Police attendance could begin after certification of death. The judge stated that this was the type of arrangement normally to be followed in similar circumstances. The judgment also gave procedural guidance on prompt applications, interpreters, emergency hearings, press notification, communication of orders and clear end-of-life treatment plans. Paras 81–98.