A Council v An NHS Foundation Trust & Anor

Where a child has no realistic prospect of meaningful improvement and is experiencing profound suffering, withdrawal of life-sustaining treatment may be authorised as being in the child’s best interests. The court must not rely on parental consent unless satisfied that the relevant parent has capacity and has given informed consent. In a decision of the utmost importance, the court may decline to rely on the statutory presumption of capacity where the evidence raises substantial concerns, while taking an interim view under the Mental Capacity Act 2005. Unanimous clinical evidence, an independent second opinion and the absence of any alternative care plan capable of improving the child’s quality of life may make the best-interests decision clear.

The local authority applied for permission to invoke the inherent jurisdiction concerning the withdrawal of medical treatment and provision of end-of-life care for a child with severe cardiac and neurological conditions. Following a cardiac arrest caused by a dislodged tracheotomy tube, the child suffered severe hypoxic-ischaemic brain damage, ventilator dependence, drug-resistant dystonia and deafness.

The treating clinicians and an independent specialist considered that the child had no quality of life and no prospect of meaningful improvement. The local authority also sought a capacity assessment concerning the mother’s ability to consent. The central issues were whether parental consent could be relied upon and whether withdrawal of treatment was in the child’s best interests.

1. Capacity and consent. The court was not satisfied that the mother’s capacity or informed consent had been established. Although the NHS Foundation Trust considered that she had capacity and relied on the presumption under section 1(2) of the Mental Capacity Act 2005, the gravity of the decision required particular care. In light of the local authority’s substantial concerns, the mother’s non-engagement and the limited evidence about the information provided to her, the court declined to rely on the presumption. It took an interim view under section 16 that she did not have capacity, without making a final finding.
2. The court therefore made its own best-interests decision and did not rely on parental consent. The mother’s earlier expressed view, the father’s view, and the positions of the local authority and children’s guardian were taken into account.
3. Withdrawal of treatment. The court adopted the principles summarised in Re A (A Child) [2016] EWCA 759 and Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67. It also considered the Royal College of Paediatrics and Child Health guidance identifying circumstances in which treatment may be withdrawn where life is limited in quantity, limited in quality, or subject to informed competent refusal.
4. This case fell within the second category. The evidence was unanimous, including an independent second opinion, that the child suffered greatly, had no realistic prospect of improvement in quality of life, and could not be weaned from ventilation or sedation. There was no alternative care plan capable of improving his quality of life. Withdrawal of medical treatment and provision of end-of-life care were accordingly in his best interests.
5. The court gave permission for the inherent-jurisdiction application to be brought and allowed it.