Birmingham Women's and Children' Hospital NHS Foundation Trust v KB & Ors

In applications concerning life-sustaining treatment for a child, the court must make an independent and objective best-interests decision. The welfare assessment is wide and includes medical, emotional, sensory, social, psychological, spiritual and family considerations.

There is a strong but rebuttable presumption in favour of preserving life. The court must balance the burdens of treatment and illness against the benefits of continued life, including the value of family relationships and any capacity for awareness, responsiveness or pleasure. Parental views, religious beliefs and cultural values must be given proper weight but are not determinative. Medical consensus does not relieve the court of its decision-making responsibility.

The Trust applied for declarations that it was not in Fatima’s best interests, a ten-year-old child with WWOX developmental and epileptic encephalopathy, to continue receiving invasive or non-invasive ventilation, and that she should be extubated and provided with palliative care.

Fatima’s parents opposed the application. The Children’s Guardian supported it. The central issue was whether the burdens of continued ventilation, including pain and distress from necessary interventions, outweighed the benefits of continued life, including a possible tracheostomy, discharge from intensive care and return home to her family.

1. Application dismissed. The court refused the declarations sought. Fatima was to undergo a tracheostomy with a view to long-term ventilation and a return home.
2. The court adopted the established best-interests approach in Aintree University Hospital NHS Foundation Trust v James and the child cases. The question was whether continued treatment was in Fatima’s best interests, not whether withdrawal was in her best interests. Welfare had to be considered in the widest sense, with the court exercising its own independent and objective judgment.
3. A strong presumption favoured preserving life, but it was rebuttable. The court had to balance the burdens of the underlying condition and treatment against the benefits of continued life. The burdens included repeated painful or uncomfortable interventions, particularly deep suctioning, likely progression of scoliosis and contractures, and dependence on machinery. The benefits included continued life, a step down from PICU, potential stimulation and play, and the prospect of living within the family home.
4. Fatima’s awareness and responsiveness were highly material. The court accepted that these had diminished but found that they had been underestimated or under-reported by some Trust witnesses. Evidence from bedside nurses, the play facilitator and the Guardian supported the conclusion that Fatima recognised and responded to her parents and could derive comfort and some pleasure from family interaction.
5. The failed attempts to wean Fatima from ventilation were not reliable evidence of significant neurological decline. Each attempt had been affected by different circumstances, including infection or potentially sedating medication, and none had been conducted when she was properly optimised. The court also criticised the lack of transparent and minuted multidisciplinary decision-making.
6. Religious and cultural values, including the sanctity of life, were relevant and given strong but non-determinative weight. The parents’ wishes themselves were not determinative, but the family relationships and the value of Fatima’s life to her family were relevant welfare considerations.