Alder Hey Children's NHS Foundation Trust v D & Ors

In a disputed application concerning withdrawal of life-sustaining treatment from a non-Gillick competent child, the court must determine the child’s best interests independently. Best interests are assessed in the widest sense, including medical, emotional, sensory, social and instinctive considerations. There is a strong but rebuttable presumption in favour of preserving life.

Where withdrawal is sought, the court must scrutinise the evidence with a high degree of probability. In an exceptionally unusual case, independent expert evidence may be required before a final decision, particularly where critical issues such as prognosis, life expectancy and possible recovery have not received independent scrutiny. The need for further evidence must be balanced against the child’s continuing burdens during the adjournment.

A hospital trust sought declarations that compassionate extubation, standard care and palliative treatment for C, a 14-year-old non-Gillick competent child, would be lawful and in his best interests. The trust and C’s mother supported withdrawal of life-sustaining ventilation. C’s father opposed withdrawal and alternatively sought an adjournment for independent expert evidence.

The court considered extensive evidence concerning C’s severe illness, ventilation dependence, neurological condition, pain, distress, awareness and prospects of recovery. The central questions were whether withdrawal had been established as being in C’s best interests and whether the court should first obtain further independent expertise.

1. Best interests. The court’s paramount consideration was C’s best interests. It had to exercise its own independent and objective judgment, considering welfare in the widest sense. This included the nature and prospects of the proposed treatment, its likely outcome, C’s likely attitude, and the views of those concerned for his welfare. The strong presumption in favour of preserving life was rebuttable where the burdens of treatment and the child’s condition outweighed the benefits.
2. Evidence and threshold. The court was not satisfied that the evidence established either that continued life-sustaining treatment was in C’s best interests or that withdrawal was in his best interests. It also held that withdrawal required satisfaction to a high degree of probability that it was in C’s best interests.
3. Independent scrutiny. The dispute, the exceptional clinical presentation, and the absence of independent intensive-care evidence made further expert scrutiny necessary. Critical matters included prognosis, life expectancy, the possibility of clinical recovery, and whether improved stability might permit care to be stepped down from intensive care. Although the court was not obliged to direct the proposed experts, it considered independent evidence from paediatric intensive care and neurology appropriate.
4. Balancing delay and burden. The court recognised that an adjournment would prolong pain, discomfort and distress, and that C’s condition could deteriorate. Nevertheless, the need for reliable evidence before a final determination outweighed that concern. The court therefore adjourned the applications pending independent experts in paediatric intensive care and neurology, with directions for the shortest practicable reporting period. No final declaration was made.

The judgment describes proceedings issued on 16 January 2023 after earlier best-interests, ethics and clinical decision-making meetings. The application came before the High Court Family Division in the urgent applications list, where case-management directions were made before the final hearing. No earlier judgment in the same proceedings is stated.