F (A Child) (Medical treatment), Re

Where clinicians consider life-sustaining treatment clinically inappropriate and will not offer it, the court should distinguish that question from whether treatment which may be offered is in the child’s best interests. A court should not determine the best interests of a child in relation to treatment that is not clinically available. Applications under the inherent jurisdiction should be made only where a genuine best-interests dispute arises or where the profound consequences of the proposed exercise of parental responsibility require judicial consideration. Proper consultation and documentation are essential where a local authority shares parental responsibility with parents. A clinical care-planning document is not legally binding and should clearly identify the treatments that will not be offered, those that may be offered, and the basis for any best-interests decision.

Bradford Children and Families Trust applied under the High Court’s inherent jurisdiction for a declaration concerning a do-not-resuscitate notice and advanced care plan for F, a six-month-old child with severe, life-limiting non-ketotic hyperglycinaemia. F was subject to a care order, so parental responsibility was shared by the local authority and his parents.

The treating clinicians and parents supported ceilings of treatment. The Trust initially could not consent without a court order. The evidence later established that chest compressions, defibrillation, cardiac or advanced life-support drugs, and intensive care admission would not be offered because they were clinically inappropriate. The issue was whether declarations were required and whether the remaining treatments, including non-invasive ventilation and intraosseous access, should be determined to be contrary to F’s best interests.

1. The court declared, under its inherent jurisdiction, that it was not lawful, being unethical, for F to receive chest compressions, defibrillation, cardiac or advanced life-support drugs, or intensive care admission. The declaration was appropriate in the particular circumstances because the application had been brought on an inadequate and unclear evidential basis.
2. The court accepted the common-law principle stated in Burke v General Medical Council that a patient cannot require a doctor to administer treatment which the doctor considers adverse to the patient’s clinical needs. Treatment that clinicians will not provide because it is clinically inappropriate is distinct from treatment which may be provided but is said not to be in the child’s best interests.
3. The distinction was important because the consultant’s initial evidence described the existing plan as being in F’s best interests but did not state clearly that the four treatments would never be offered. The RESPECT form and CYCAP also inaccurately suggested that all persons holding parental responsibility had been involved, and did not adequately record the local authority’s position after the interim care order.
4. The court considered that the local authority was right to apply the approach in Re C (Children) Child in Care: Choice of Forename, where a small category of profoundly consequential exercises of parental responsibility may require consideration under the inherent jurisdiction despite the local authority’s statutory power. However, proper consultation and written reasons would have shown that the four treatments were not being offered, so the issue might instead have been whether that clinical decision was amenable to judicial review.
5. No declaration was made concerning non-invasive ventilation or intraosseous access. It was premature to decide whether those treatments would be offered or, if offered, whether they would be in F’s best interests. Those questions remained for clinical judgment, in consultation with the persons holding parental responsibility.

Not stated in the judgment.