An NHS Foundation Trust v AB & Ors

A child’s apparent ability to express a preference does not establish Gillick competence. The child must understand and appreciate the proposed treatment, its risks and benefits, and the consequences of refusing it.

Where a child lacks capacity, the court may override parental refusal and must make an independent, objective best-interests decision. The assessment is comprehensive and fact-specific. It requires the court to balance medical, emotional, sensory, practical and other relevant benefits and burdens. Where effective treatment is available, delay may itself harm the child and healthcare providers should apply to court when parental agreement is unlikely.

An NHS Foundation Trust applied under the inherent jurisdiction concerning AB, a ten-year-old child with severe bilateral cataracts. The Trust sought declarations that AB lacked capacity to consent to or refuse cataract surgery, an order authorising bilateral surgery in her best interests, and authority for any consequential deprivation of liberty.

AB’s parents opposed surgery and favoured dietary changes, herbal remedies and delay. The medical evidence was unanimous that surgery was the only effective treatment, that AB’s eyesight was deteriorating, and that the surgical risks were minimal. The central issues were whether AB was Gillick competent and, if not, whether surgery was in her best interests.

1. Capacity. AB was not Gillick competent to decide whether to undergo cataract surgery. Applying the formulation in Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11, competence required understanding and appreciation of the treatment, its intended and possible side effects, and the consequences of refusing treatment. AB did not sufficiently understand the benefits of surgery, the consequences of non-treatment, or the limited risks involved.
2. Parental responsibility and jurisdiction. Because AB lacked capacity, the court was required to make the decision. Under the inherent jurisdiction, it could override the parents’ refusal, consistently with Re T (Wardship Medical Treatment) [1997] 1 WLR 242.
3. Best interests. The court adopted the objective, independent and fact-specific approach summarised in An NHS Trust v MB [2006] EWHC 507. The parents’ wishes were relevant only insofar as they illuminated AB’s wishes and welfare. Their own understandable opposition was not itself determinative.
4. The court used the balance-sheet approach described in Re A [2000] 1 FLR 549, while recognising that best interests cannot be assessed mathematically. AB’s severe and worsening visual impairment, educational and social disadvantage, the high likelihood of surgical success, and the minimal and largely treatable risks overwhelmingly favoured surgery. Herbal remedies had no evidential basis and delay was harmful.
5. AB’s wishes and feelings were taken into account but were substantially influenced by parental opposition and therefore did not determine the outcome. Bilateral surgery at the same time was also in her best interests because it avoided a second general anaesthetic and reduced the risk of further non-cooperation.
6. The application was granted. The judge also expressed concern that the Trust had delayed issuing proceedings for approximately two and a half years while seeking parental agreement. Healthcare providers should recognise when agreement is unlikely and apply promptly where delay causes detriment to the child.