Great Ormond Street Hospital v Yates & Ors

Where a child lacks capacity and parents and clinicians disagree about medical treatment, the court must exercise independent and objective judgment on the child’s best interests. The child’s welfare is paramount and must be assessed in the widest sense, including medical, emotional, sensory and other welfare considerations. There is a strong but rebuttable presumption in favour of prolonging life. The court must balance the burdens and prospects of treatment against its likely benefits from the child’s assumed perspective. If treatment is not in the child’s best interests, the court cannot lawfully consent to it on the child’s behalf; withholding or withdrawing that treatment will consequently be lawful. Experimental treatment cannot be justified merely because it may advance medical knowledge where it offers no real prospect of benefit to the child and may cause pain or suffering.

The Great Ormond Street Hospital for Children NHS Foundation Trust applied under the inherent jurisdiction for declarations concerning Charles Gard, an eight-month-old child with severe RRM2B mitochondrial DNA depletion syndrome, persistent encephalopathy and ventilator dependence. The parents opposed withdrawal of ventilation and sought nucleoside therapy in the United States. The central issue was whether that treatment was in Charlie’s best interests, having regard to its uncertain prospects, possible burdens and the irreversible nature of his brain damage.

1. Outcome. The applications were granted. It was lawful and in Charlie’s best interests to withdraw artificial ventilation, provide palliative care only and not administer nucleoside therapy.
2. Applicable test. The court retained overriding control notwithstanding the parents’ parental responsibility and had to exercise independent and objective judgment. Applying Wyatt v Portsmouth NHS Trust [2000] 1 FLR 554, An NHS Trust v MB [2006] 2 FLR 319 and Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, the inquiry concerned Charlie’s welfare in its widest sense, viewed from his assumed perspective. The strong presumption favouring life prolongation was rebuttable.
3. Balancing exercise. The court considered the nature of the proposed treatment, its prospects of success, its likely outcome, the possibility of pain and suffering, Charlie’s quality of life, and the evidence of those caring for him. The treatment had never been used for RRM2B deficiency, lacked clinical evidence of benefit, could not reverse structural brain damage and offered only a tiny theoretical prospect of improvement. Medical evidence established that Charlie was suffering and had no realistic prospect of meaningful neurological recovery.
4. Lawfulness of withdrawal. Following Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67 and Airedale NHS Trust v Bland [1993] AC 789, the relevant question was whether it was lawful and in Charlie’s best interests to give the proposed treatment. Once the answer was no, it followed that withholding or withdrawing it was lawful.
5. Procedural observation. The judge expressed the view that an Issues Resolution Hearing or private mediation could assist parties in future cases by identifying common ground, although it could not be assumed that mediation would resolve the dispute.