An NHS Trust v Mother & Ors

Where a child under 16 lacks Gillick competence, parental consent may authorise medical treatment and an accompanying deprivation of liberty when the treating clinicians and parents agree that the treatment is in the child’s best interests. This includes repeated and invasive nasogastric feeding, restraint where necessary, and treatment contrary to the child’s wishes. Such treatment does not form a special category requiring prior court approval. Statutory guidance cannot alter or prevail over the common law. If guidance appears inconsistent with judicial authority, the court must resolve the issue and the guidance should be updated. Court intervention may nevertheless be required where the clinical team and parents disagree, or in the rare case where responsible authorities consider that the parents and hospital have seriously misjudged the child’s best interests.

An NHS Trust applied for declarations concerning the treatment of G, a 12-year-old child with anorexia nervosa and depression. G lacked Gillick competence in relation to nasogastric feeding and the restraint occasionally required to administer it. Her parents consented to the treatment, and the clinical team agreed that it was necessary to preserve her life and restore her health.

The parties reached agreement and a consent order was made. The court nevertheless reserved judgment on the alleged tension between the common law concerning parental consent and restraint, and the guidance issued under section 118 of the Mental Health Act 1983. The central issue was whether parental consent was sufficient, or whether court authorisation was required.

1. The declaration was unnecessary. Where a child under 16 lacks Gillick competence, the parents and treating medical team agree on the child’s best interests, and the treatment is clinically indicated, parental consent may lawfully authorise medical treatment and any consequent deprivation of liberty. Prior court authorisation is not required.
2. Nasogastric feeding was not a special category. Even though feeding might be repeatedly invasive, contrary to the child’s wishes and involve restraint, its primary purpose was to preserve life. It did not fall within a category of treatment requiring court approval merely because of its nature.
3. The court approved the reasoning in AB v CD [2021] EDWHC Civ 741 (fam) that cases requiring court approval despite parental agreement are very limited and fact-specific. It also agreed with the analysis in Lincolnshire County Council v TGA [2022] EWHC 2323 (Fam) that a parent may consent to a deprivation of liberty for a child under 16 lacking Gillick competence where there is no relevant disagreement about the child’s best interests.
4. The Code is guidance, not law. Judicial precedent determines the common law, and a Code of Practice cannot prevail over it. The relevant guidance, insofar as it suggested that parental consent could not authorise treatment in these circumstances, was erroneous and required updating.
5. A decision contrary to a child’s best interests may still be an exercise of parental responsibility. State intervention may be justified where the decision risks significant harm, but where the parents and treating team agree, intervention is generally unnecessary and would be inappropriate unless a responsible authority considers that both have seriously misjudged the case.
6. The court considered it clearly in G’s best interests to receive the treatment and, if necessary, restraint. It therefore directed that an order record both that a declaration was unnecessary and, in any event, the agreed declaration that the treatment and necessary restraint were lawful and in G’s best interests.

The Trust applied on 21 August 2023. On 23 August 2023, Moor J directed the appointment of a children’s Guardian. The parties subsequently agreed a consent order. The present court gave reserved judgment on the legal issue concerning parental consent and court authorisation.