Raqeeb v Barts Health NHS Trust

The court heard two sets of concurrent proceedings: a judicial review challenging the Trust's refusal to agree to the childpatient's transfer to a paediatric centre in Italy, and an application by the Trust under s.8 Children Act 1989 and the High Court's inherent jurisdiction for declarations that continued life sustaining treatment should be withdrawn. Key legal principles applied were the childcentred best interests test under the Children Act 1989 and the inherent jurisdiction, the requirement that an NHS body consider any directly effective EU rights (notably Article 56 TFEU) before restricting crossborder healthcare, and the wellestablished twostage approach from Blood for assessing whether an interference with freedom to receive services is justified.

The Trust's decision to decline the transfer pending resolution of the best interests dispute was procedurally susceptible to judicial review because it was a public body decision, but the Trust had failed to consider the child's Article 56 rights when it made that decision. The court held that, notwithstanding that procedural error, the Trust would have lawfully reached the same outcome because the established national procedure of bringing disputes over a child's medical treatment before the domestic courts is a proportionate and legitimate publicpolicy justification for a temporary restriction on Article 56 rights.

On the merits of the welfare applications, after an anxious and detailed assessment of the medical evidence (level of awareness, pain perception, prognosis and likely future burdens) and the parents' religious beliefs and wishes, the judge concluded that it was not satisfied that withdrawal of lifesustaining treatment was in the child's best interests. The Trust's section 8 and inherent jurisdiction applications were dismissed and the judicial review relief was refused as inappropriate in the circumstances.

This case concerns Tafida Raqeeb, born 10 June 2014, who in February 2019 suffered a catastrophic brain haemorrhage from a ruptured arteriovenous malformation and remains profoundly neurologically impaired and ventilator dependent. The Trust applied to the Family Division under s.8 Children Act 1989 and the inherent jurisdiction for declarations that withdrawal of life sustaining treatment would be in Tafidas best interests. Separately Tafida (through her litigation friend) and her parents sought judicial review of the Trusts refusal to permit transfer to the Gaslini Paediatric Hospital in Genoa, Italy.

• Nature of applications: (i) judicial review seeking quashing/mandatory relief to compel the Trust to allow transfer to Italy; (ii) Trusts s.8 / inherent jurisdiction applications for declarations that withdrawal of life sustaining treatment should occur.
• Issues framed: whether the Trusts refusal to agree transfer was legally deficient for failing to consider the child's Article 56 TFEU right to receive crossborder healthcare; whether any interference with Article 56 could be justified by public policy; whether it was in Tafidas best interests to continue or withdraw life sustaining treatment (assessment of awareness, pain, prognosis, burdens/benefits and weight to be given to parental wishes and religious beliefs).

Courts reasoning (concise): The judge found that the Trust had in fact decided on or about 8 July 2019 not to agree to transfer pending resolution of the bestinterests dispute and that that decision was amenable to judicial review. The Trust had not considered the child's Article 56 rights and so its decision was prima facie unlawful. The court analysed EU law (Article 56 TFEU, Directive 2011/24/EU and related case law) and domestic procedure and concluded that the domestic requirement to bring disputes about a child's medical treatment before the courts (s.8/inherent jurisdiction), in the hands of the Member State of the child's habitual residence, constitutes a legitimate, suitable and proportionate publicpolicy justification for a temporary restriction of Article 56 rights. For that reason, had the Trust applied the correct legal test it would have lawfully reached the same decision to seek the court's determination.

On the merits of the welfare applications, after careful evaluation of the medical reports (UK and Italian clinicians), the judge accepted the consensus that Tafida has catastrophic, largely irreversible brain injury, is ventilator dependent, likely to remain profoundly disabled for many years and that she is presently medically stable. There was a realistic prospect of being maintained on longterm ventilation and, with tracheostomy and family training, of care at home. The judge accepted he could not exclude some minimal awareness but concluded, on balance, that continuation of lifesustaining treatment in the circumstances before the court (safe transfer available, funded Italian care plan, family support, no evidence of ongoing pain in resting state and relevant religious considerations) was in Tafidas best interests. Consequently the Trusts applications for declarations were dismissed. The judicial review claim for relief was refused as an ineffective remedy in the circumstances.

The judicial review challenge to the Trust's decision was dismissed on grounds that, although the Trust had failed to consider Tafidas Article 56 TFEU rights when refusing transfer, the national procedure of bringing a bestinterests dispute before the domestic court constitutes a legitimate, suitable and proportionate publicpolicy justification and the Trust would have lawfully reached the same decision had it applied the correct test. On the substantive welfare applications under s.8 Children Act 1989 and the inherent jurisdiction, the court dismissed the Trust's applications for declarations that lifesustaining treatment should be withdrawn, concluding on the balance of the evidence that continued treatment and transfer to the agreed Italian centre was in Tafidas best interests. The Trust's applications are therefore refused/dismissed for the reasons set out in the judgment.