Guy's & St Thomas’ NHS Foundation Trust v A & Ors.

Where a child’s neurological condition is catastrophic but cardiac arrest is not imminent and resuscitation may have a meaningful objective, it may remain in the child’s best interests to attempt CPR. Intensive care is not necessarily futile merely because recovery is unlikely, particularly where further investigation may identify treatment or discharge options, including palliative care at home. A DNAR direction should not be made prematurely where the clinical picture remains unusually uncertain. The decision may be reviewed when further expert evidence becomes available.

The Trust applied for declarations concerning the medical treatment of A, a three-month-old child who had suffered cardiac arrest, severe neurological injury and multiple fractures. Brain-stem testing initially led to a clinical diagnosis that A had died. That diagnosis was rescinded after staff observed intermittent breathing, although subsequent investigations continued to show devastating whole-brain injury.

The Trust sought a declaration that it would be lawful and in A’s best interests not to resuscitate him if cardiac arrest occurred. The central issue was whether, pending further expert evidence, CPR should be regarded as futile or contrary to A’s best interests.

1. The declaration was refused at this stage. The original application concerning brain-stem death was no longer pursued. The court adjourned the proceedings for further independent expert evidence.
2. A’s neurological condition was deeply compromised, and recovery was unlikely. However, his general medical condition was stable, his heart was strong, and there was no particular reason to believe that resuscitation would be unsuccessful. Cardiac arrest could not be excluded, but it was not imminent.
3. Intensive care could not presently be characterised as futile. It had an identifiable objective: to establish the full range of potential options, however limited, including the possibility that A might eventually leave intensive care and die at home with his parents.
4. In those circumstances, CPR in the event of cardiac arrest remained justified and was, at this stage, in A’s best interests. The court declined to make a DNAR order because the wider clinical picture had not yet become sufficiently clear. The decision was expressly interim and might require review after the further expert reports.
5. The court distinguished the circumstances from Barts Health NHS Trust v Dance & Ors [2022] EWHC 1435 (Fam); Barts Health NHS Trust v Dance & Ors (Re Archie Battersbee) [2022] EWCA Civ 935, where brain-stem testing had been incomplete. In A’s case, testing appeared to have been repeatedly undertaken in accordance with clinical guidelines.

Not an appeal. The judgment does not state any prior appellate history for this case.