An NHS Trust v S & L (A Child) (Witholding Life Sustaining Invasive Treatment)

In deciding whether invasive life-sustaining treatment should be given to a child, the court must make an objective assessment of that child’s best interests at the particular time. Best interests are assessed holistically and include medical, emotional, social, psychological, sensory and instinctive considerations. A strong presumption favouring the prolongation of life is not absolute. The court must weigh the treatment’s nature, burdens, prospects of success and likely short-, medium- and long-term consequences. The assessment is fact-specific and may require different conclusions for different clinical contexts. Treatment may be futile even if it does not affect the underlying disease, although it may still confer other direct benefits. The court cannot compel a doctor to provide treatment contrary to professional judgment.

An NHS Trust applied under the inherent jurisdiction concerning L, a child with a rare and fatal syndrome, whose parents and treating doctors disagreed about escalation to mechanical ventilation and cardio-pulmonary resuscitation. The Trust considered L to be entering the terminal phase and sought declarations supporting palliative care and withholding invasive treatment. The parents believed that some deterioration might be reversible and sought an opportunity for life-sustaining treatment.

The court first determined the interim position on the evidence then available. A further expert assessment and discussions followed. By 8 December 2017, the parties had agreed a detailed treatment framework. The central issue was whether, and in what clinical circumstances, invasive treatment was objectively in L’s best interests.

1. Best interests. The court had to make its own objective assessment of what was in L’s best interests at the particular time. Welfare was to be understood in its widest sense. The assessment included medical, emotional, social, psychological, sensory and instinctive considerations, together with the treatment’s nature, burdens, prospects of success and likely consequences. The child’s best interests were paramount, and the assessment could not be made mathematically.
2. Context-sensitive assessment. The evidence established that L had entered the terminal phase of her condition. In that context, invasive ventilation would probably prevent her from regaining meaningful consciousness and interaction with her family, while CPR had a very low prospect of success and substantial burdens. Withholding those interventions in an end-stage crisis was therefore better for her overall welfare.
3. The court declined to make a blanket declaration excluding invasive treatment in every circumstance. A short period of ventilation might be beneficial if an infection or other event were clinically reversible and there were a reasonable prospect of recovery and discharge. CPR could likewise not be excluded in every possible context because the cause of a cardiac event might be unrelated to the terminal progression.
4. Futility and professional judgment. Treatment was not necessarily futile merely because it could not reverse the underlying disease. It could confer another direct benefit, including a temporary prolongation of a life capable of being experienced by the child. The court could not compel a doctor to administer treatment contrary to professional judgment, although its assessment could inform continuing clinical review.
5. Declarations were made that CPR was not lawful or in L’s best interests; basic intensive care and non-invasive ventilation were lawful and in her best interests while improvement and discharge from intensive care remained reasonably expected; palliative care was appropriate when that expectation ceased; and invasive ventilation was lawful and in her best interests for a time-limited trial, or longer if clinically indicated while she progressed. Non-reversible respiratory deterioration justified weaning to palliative care.