Dean Gregory v Nottingham University Hospitals NHS Foundation Trust & Ors

In urgent best-interests proceedings concerning a critically ill child, a court may resolve how an existing care plan is to be implemented by reference to the child’s present best interests without applying the test for reopening an earlier determination, where it is not revisiting earlier findings and circumstances have materially changed. A care plan may adapt to clinical deterioration. A parent’s choice is confined to clinically appropriate options and does not extend to insisting on a medically unsafe setting. Procedural fairness is context-specific. An adjournment or further opinion is not required where the judge has sufficient evidence and delay would increase the child’s pain or risk. The application for permission to appeal was dismissed.

The Trust sought approval in the Family Division for withdrawal of invasive ventilation and its replacement by palliative care. On 16 October 2023, Peel J approved that care plan. After the parents requested extubation at home, the Trust maintained that the increasing complexity of Indi’s condition made home extubation impracticable. At a hearing on 6 and 7 November, the judge directed that extubation take place in a hospice. Mr Gregory sought permission to appeal, arguing that the judge had impermissibly changed the care plan, failed to obtain further evidence, acted unfairly, and denied him a second medical opinion. The central issue was whether the judge could determine the location of extubation urgently by reference to Indi’s current best interests.

Disposition

The Court of Appeal dismissed the application for permission to appeal. The grounds were entirely without merit.

1. The judge was resolving an issue concerning implementation of the substantive care order by reference to Indi’s present best interests. He was not reopening earlier findings. The parties accepted that the care plan was intended to operate as a living document, and Indi’s deterioration constituted a change of circumstances. The caution in An NHS Trust v AF and SJ [2020] EWCOP 55, para [22], did not prevent the decision.
2. Fairness was context-specific. The judge had ample medical evidence, including evidence from the parents’ own expert favouring hospice treatment. In light of Indi’s pain and suffering and the adverse consequences of further delay, he was entitled to refuse an adjournment for further inquiries. The Trust had made proper efforts to accommodate the parents’ wishes while maintaining its overriding duty to Indi.
3. The care plan gave the parents a choice only between options that were clinically appropriate. It did not give them a right to insist on home extubation where the evidence showed that the transfer and treatment would be unsafe and carried an unacceptable risk of increased suffering.
4. The claimed right to a second opinion, relied on by reference to R (Burke) v General Medical Council (CA) [2006] QB 273, did not justify an adjournment in the circumstances. Ground 4 was rejected for the same reasons as the fairness challenge.

The court expressed concern about repeated applications and changing positions that had delayed implementation of orders made in the child’s interests. It stated that manipulative litigation tactics designed to frustrate such orders would not be tolerated. It also regarded an Italian authority’s request under Art. 9(1) of the 1996 Hague Convention for the Protection of Children as contrary to the spirit of the Convention and wholly misconceived, although that issue was not before the court.

• Court of Appeal (Civil Division): On 10 November 2023, the application for permission to appeal against the order concerning the location of extubation was dismissed.
• High Court of Justice, Family Division: Peel J approved the withdrawal of invasive treatment and replacement by palliative care on 16 October 2023. Following a further hearing on 6 and 7 November, he directed that extubation take place in a hospice.
• The judgment records that earlier appeals and applications concerning the welfare decision, reopening of the decision and transfer to Italy had been unsuccessful.