Guy's and St Thomas' NHS Foundation Trust v A (By his Children's Guardian) & Ors

In deciding whether life-sustaining treatment should continue for a child who lacks capacity, the court must determine the child’s best interests from the child’s assumed viewpoint. Best interests are assessed in the widest sense by balancing medical, emotional, sensory, relational and other welfare factors. Treatment burdens and benefits may be relevant even where the child is unaware of them. There is a strong but rebuttable presumption in favour of preserving life. Parental wishes, religious convictions and culture must be given proper weight, but they do not prevail over the child’s best interests. A separate test based on dignity is unnecessary: dignity is respected through an intense, individualised best-interests assessment.

A was a baby receiving mechanical ventilation in intensive care after catastrophic hypoxic-ischaemic brain injury and extensive loss of brain tissue. His parents opposed withdrawal of treatment, while the NHS Trust and Children’s Guardian supported it. An earlier first-instance determination had been set aside after the Court of Appeal allowed an appeal concerning the parents’ legal representation and remitted the application.

The High Court heard the application afresh. The central issues were A’s prognosis, possible experience of pain or discomfort, the burdens and benefits of continued ventilation, and the weight to be given to his parents’ views, religious convictions and family relationship.

1. Best interests. The court applied the established principle that A’s best interests were paramount and that the decision had to be made from his assumed point of view. The inquiry was objective and independent, but required the widest assessment of welfare.
2. Evidence and uncertainty. The medical evidence established catastrophic and irreversible brain injury, no detectable electrical brain activity, no realistic prospect of recovering consciousness and a continuing need for intensive care. The court found that A probably had no conscious experience of pain, while a vestigial reflex response could not be excluded. A best-interests assessment could take account of possibilities as well as probabilities where no binary finding was necessary. A balance-of-probabilities determination remained necessary where a disputed fact had to be resolved.
3. Balancing burdens and benefits. Ventilation, suctioning and nasogastric feeding were burdens even though A was probably unaware of them. Loving parental care was a benefit, although limited by A’s permanent confinement to intensive care and inability to interact, develop or form relationships. The burdens substantially outweighed the benefits. Continued treatment was futile in the sense that it could prolong life but could not improve A’s condition or quality of life.
4. Parental views, religion and dignity. The parents’ wishes, religious convictions and culture were relevant and were taken into account, but did not determine the outcome. The court did not apply a separate dignity test. Respect for A’s inherent dignity was achieved through the intense and conscientious application of the established best-interests principles.
5. Outcome. The presumption in favour of preserving life was rebutted. It was not in A’s best interests to continue mechanical ventilation. The court made the declarations sought by the Trust and approved the agreed palliative-care plan.

• Court of Appeal: In Re A (Withdrawal of Treatment: Legal Representation) [2022] EWCA Civ 1221, the parents’ appeal against the refusal of an adjournment was allowed and the Trust’s application was remitted.
• High Court (Family Division): The application was heard afresh and the declarations sought by the Trust were made.