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

Applicants in end-of-life treatment proceedings must provide the court and all representatives with the source material necessary for a proper best-interests evaluation. This includes relevant clinical, medical and therapeutic records, whether or not held within the principal medical records. Disclosure should be organised, indexed, paginated, checked for legibility and, where reasonably possible, provided in searchable form. Late or inadequate disclosure may impose serious and unfair pressure on families, representatives and the court. Although adjournment will ordinarily be the proper response to material deficiencies, it may be refused in exceptional cases where delay could materially reduce the realistic options available to the child. Courts should also consider case-management directions and, where appropriate, costs consequences.

The Trust applied for declarations concerning the lawfulness and best interests of discontinuing life-sustaining treatment for a child with a rare and serious genetic condition. During the proceedings, substantial medical and other records were disclosed shortly before the final hearing, after earlier assurances that disclosure was complete. The records were in places incomplete, poorly copied, difficult to follow and insufficiently indexed.

The parents applied to vacate the hearing because their legal team had been deprived of adequate preparation time. The court refused that application, completed the substantive hearing and determined that the disclosure issues should be addressed in a separate judgment. This judgment concerned the consequences of insufficient disclosure and practical measures to prevent recurrence.

1. Disclosure obligation. Trusts bringing applications concerning the withdrawal of life-sustaining treatment must place before the court, and provide to those representing the parents and child, the material necessary to evaluate the evidence and reach a best-interests decision. Relevant material may include therapeutic records and other records held outside the principal medical file.
2. Effect of late disclosure. The production of nearly 3,000 pages in the week before the hearing, much of it previously said not to exist or be available, caused substantial difficulties. Duplication could not readily be identified without proper indexing and cross-referencing. The resulting pressure on representatives and the risk of rushed or perceived rushed decision-making were unacceptable.
3. Adjournment. In ordinary litigation, late, incomplete or unusable records would commonly justify relisting the case when trial-ready. In proceedings concerning life-sustaining treatment, however, adjournment may itself reduce the realistic options available to the child. The court therefore refused to vacate the hearing in the exceptional, fact-specific circumstances of this case, while delaying its start by two days to mitigate the prejudice.
4. Practical guidance. Applicant Trusts should prepare an early index covering clinical, medical and therapeutic records; nominate senior responsibility for its completeness and updating; identify duplication; provide indexed and paginated disclosure; inspect copies for quality; ensure material prepared for disclosure is sent; and address early whether searchable disclosure is reasonably practicable.
5. The court considered that costs language and sanctions may have a place in the Family Division, but made no costs order reflecting the disclosure failures. The Trust’s acknowledged human errors and proposed remedial changes were taken into account.