Great Ormond Street Hospital for Children NHS Foundation Trust v MK (Medical Treatment)

In deciding whether to authorise medical treatment for a child, the court must make its own objective assessment of the child’s best interests. That assessment is broad and fact-sensitive. It includes medical, emotional, sensory and instinctive considerations, the treatment’s nature and prospects, and the views of the child, parents and clinicians. There is a strong but rebuttable presumption in favour of preserving life. Where a child lives with a close relative who lacks parental responsibility, a “live with” child arrangements order may be used to confer parental responsibility and avoid repeated treatment applications, provided the statutory principles are satisfied.

The hospital sought authorisation under section 8 of the Children Act 1989 and the inherent jurisdiction for seven-year-old CK to undergo urgent open-heart surgery. CK’s mother lacked capacity to consent, her father was unknown, and her maternal grandmother, GK, was her principal carer but did not yet have parental responsibility. The application was supported by all interested parties and was unopposed.

The hospital and the parties also invited the court to make a “live with” child arrangements order in GK’s favour, so that she would acquire parental responsibility pending the anticipated special guardianship order and further applications could ordinarily be avoided.

1. Medical treatment. The application was granted. The court adopted the principles distilled in University Hospitals Plymouth NHS Trust v B (A Minor) (Urgent Medical Treatment) [2019] EWHC 1670 Fam. The paramount consideration was CK’s best interests, assessed by the court’s own independent and objective judgment.
2. “Best interests” was to be understood in its widest sense. The court had to balance all relevant considerations, including the nature of the proposed treatment, its burdens and prospects of success, the likely outcome, and medical, emotional, sensory and instinctive factors. The court was not bound by the clinicians’ assessment, although the views of doctors and parents had to be considered, as did the child’s views with appropriate weight according to age and understanding.
3. There was a strong presumption in favour of preserving life, but it was rebuttable. Treatment could be refused where its burdens and suffering substantially outweighed any commensurate benefit. The proposed surgery carried risks, but its significant prospect of reducing a life-threatening condition greatly outweighed those risks. Delay would materially increase the risk of collapse and death.
4. Child arrangements order. Under sections 8, 10(5B) and 12(2) of the Children Act 1989, it was appropriate on these facts to order that CK live with GK. GK was a qualifying relative with whom CK had lived for the requisite period, and the order reflected the practical reality of the care arrangements while conferring parental responsibility.
5. The judge stated that this could be a useful course in other cases where a child lived with a close relative lacking parental responsibility. The court must nevertheless be satisfied in every case that making the order accords with the statutory principles. The order would avoid further applications for treatment in the absence of a dispute between GK and the hospital.

First-instance decision. No appellate history was stated in the judgment.