Dean Gregory v Nottingham University Hospitals NHS Foundation Trust & Ors

In an urgent child medical-treatment case, a court may authorise withdrawal of life-sustaining treatment where, viewing the child’s condition as a whole, treatment causes significant pain and distress and offers no commensurate benefit beyond prolonging life. The strong presumption in favour of preserving life requires anxious scrutiny but does not make continued invasive treatment inevitable. Applications for expert evidence under Family Procedure Rules 2010 Part 25.4(3) require evidence necessary to resolve the proceedings. A judge may refuse speculative or untimely additional evidence where existing evidence is extensive and leaves no identified gap. Equality of arms does not create an automatic right to a raft of experts. Permission to appeal requires a real prospect of success or another compelling reason under Civil Procedure Rules 1998 rule 52.6.

Indi Gregory’s treating trust applied to the High Court for declarations authorising withdrawal of invasive ventilation and limiting further aggressive treatment. Peel J held that the proposed compassionate care plan and treatment limits were in Indi’s best interests, making orders reported at [2023] EWHC 2556 (Fam).

Indi’s father sought permission to appeal. He accepted that the result might be right but argued that the judge lacked a sufficient evidential basis because he had refused permission for extensive independent expert evidence. The proposed grounds concerned anxious scrutiny, equality of arms and discrimination under Articles 2 and 6 ECHR. The central issue was whether the proposed appeal had a real prospect of success or another compelling reason for being heard.

The Court of Appeal refused permission to appeal on all three grounds.

1. Permission threshold. Under Civil Procedure Rules 1998 rule 52.6, permission required a real prospect of success or some other compelling reason. None of the proposed grounds met that threshold.
2. Best interests and evidence. The High Court had given the case anxious scrutiny. It had recognised the strong presumption in favour of preserving life and given high regard to the value of continued life, while applying the principle that treatment may cease to be in a child’s best interests where it causes increased suffering without commensurate benefit. The Court of Appeal would not go behind the judge’s supported finding that Indi experienced significant pain and distress. The evidence showed an incurable, progressively deteriorating condition, and the court was entitled to assess her interlinked conditions as a whole rather than by considering hypothetical treatment for a different child.
3. Expert evidence. The applicable test under Family Procedure Rules 2010 Part 25.4(3) was whether further evidence was necessary to assist the court to resolve the proceedings. The judge had considered the urgency of the case, extensive multidisciplinary evidence, the absence of any identified evidential gap or contrary treatment proposal, and the speculative nature of the application. He granted limited permission for a paediatric intensivist, subject to an early deadline; no report was produced and no adjournment was sought. The existing evidence was sufficient, and uncertainty in a rare condition did not make further evidence necessary.
4. Equality of arms and discrimination. Equality of arms did not create an automatic entitlement to extensive independent expert evidence. The governing procedural rules were human-rights compliant, and the father had opportunities to test the evidence and obtain targeted input. The comparison with the Charlie Gard case was unhelpful because it involved a different patient in wholly different circumstances. The argument under the UN Convention on the Rights of Persons with Disabilities was unsupported by any identified form or nature of discrimination. There was therefore no real prospect of establishing a breach of Articles 6 or 2 ECHR.

1. Court of Appeal (Civil Division): permission to appeal was refused on 23 October 2023 in [2023] EWCA Civ 1262.
2. High Court (Family Division): Peel J made orders on 16 October 2023 authorising the compassionate care plan, withdrawal of invasive ventilation and a ceiling on further aggressive treatment, in [2023] EWHC 2556 (Fam).