Z v Y

In determining whether to authorise medical treatment for a child, the court must treat the child’s welfare as paramount and decide the matter from the child’s assumed perspective. The assessment is fact-specific and must encompass medical, emotional, psychological and social welfare. The court should weigh the treatment’s nature, prospects of success, risks and likely consequences against the consequences of refusing it, using a balance-sheet approach where helpful. The decision is not determined by the parent’s wishes or by the possibility of a risk-free outcome.

The mother applied for a specific issue order under the Children Act 1989 authorising brain surgery for her almost seven-year-old daughter, A, who had drug-resistant epilepsy and continued to suffer frequent nocturnal seizures despite medication and a ketogenic diet. The father opposed the surgery because its chance of complete success was approximately 50 per cent and because of the risks of paralysis and other complications.

The application was heard urgently in the High Court Family Division. The court considered updated neurosurgical and neurological evidence addressing both the risks of surgery and the risks of leaving the epilepsy untreated. The central issue was whether surgery was in A’s best interests.

1. Statutory framework. The application was for a specific issue order under section 8 of the Children Act 1989. A’s welfare was the paramount consideration under section 1. The court applied the welfare checklist in section 1(3), avoided delay and considered whether making an order was better for A than making no order.
2. Medical-treatment approach. Applying the fact-specific approach identified in Wyatt v Portsmouth NHS Trust & Anor [2005] EWCA Civ 1181, the judge assessed the decision from A’s assumed point of view. The court had to balance all relevant medical and wider welfare considerations. Following the guidance of Baroness Hale in Aintree University Hospital NHS Foundation Trust James and Others [2013] UKSC 67, this included the nature of the treatment, its prospects of success, its likely outcome, A’s likely attitude and the views of those concerned with her welfare.
3. Application of the balance sheet. Surgery offered the only realistic prospect of seizure freedom, possible reduction of medication and improved development and quality of life. The risks included a 1 to 2 per cent chance of weakness or paralysis, infection or cerebrospinal-fluid leakage, and a small risk of death. Those risks had to be weighed against continuing daily seizures, serious disruption to A’s life and education, treatment side effects and an annual risk of sudden unexplained death associated with uncontrolled epilepsy.
4. The court concluded that A’s welfare required surgery. Her limited understanding meant that her wishes were not determinative, but her likely perspective would be shaped by the substantial burden of her epilepsy and the prospect of a better outcome if surgery occurred sooner. A specific issue order was made authorising the operation.
5. The court declined to order that the father must be present at the surgery. Requiring his presence might cause delay because of possible immigration difficulties and would not be in A’s best interests. The surgery was to take place as soon as possible, whether or not the father could attend.