C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver transplant. The parents now appealed.
Held: The appeal succeeded.
Butler-Sloss LJ said: ‘it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court’s assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent. ‘
The court below had unquestioningly accepted the advice of three consultants but had failed to ‘consider . . the evidence of Dr P and his strong reservations to the effect of coercing, (as Dr P put it) this mother into playing the crucial and irreplaceable part in the aftermath of major invasive surgery not just during the post-operative treatment of an eighteen month old baby but also throughout the childhood of her son. She would inevitably be the primary carer, (no-one suggested that this baby should be taken into care) and would be expected to care for him for many years through surgery and continuing treatment while she, on her present view, believed that this course was not right for her son.’
and ‘The welfare of the child is the paramount consideration and I recognise the ‘very strong presumption in favour of a course of action which will prolong life’ and the inevitable consequences for the child of not giving consent. But to prolong life, as Lord Donaldson MR recognised in somewhat different circumstances, is not the sole objective of the court and to require it at the expense of other considerations may not be in a child’s best interests. I would stress that, on the most unusual facts of this case with the enormous significance of the close attachment between the mother and baby, the court is not concerned with the reasonableness of the mother’s refusal to consent but with the consequences of that refusal and whether it is in the best interests of C. for this Court in effect to direct the mother to take on this total commitment where she does not agree with the course proposed.’
Roch LJ said: ‘the judge mislead himself by categorising the parents’ decision as being ‘unreasonable’. I can see nothing to justify the judge’s conclusion that the child’s mother is deluding herself that with her care the child miraculously will survive beyond that period of time forecast by the doctors, or that the parents have failed to grasp the improvements in operating technique and subsequent treatment which have taken place in the field of liver transplantation in recent years, particularly in view of Dr P’s evidence of the protracted and thorough discussions he has had with the mother.
If the proper stance for parents is that whenever there is a treatment which may prolong the life of their child, then that treatment should be accepted, a decision not to accept that treatment would be unreasonable. But in my opinion that cannot be and will not be the answer in every case. Nor are such decisions to be taken solely with medical factors in mind. The presumption in favour of the sustaining of life is not irrebuttable and perhaps has less weight where the issue is whether to prolong or not to prolong life by means of organ transplantation.’
Judges:
Butler-Sloss, Waite, Roch LJJ
Citations:
[1997] 1 WLR 242, [1996] EWCA Civ 805
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – In Re B (A Minor) (Wardship: Medical Treatment) CA 1981
The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .
Cited – In re J (a Minor) (Wardship: Medical Treatment) CA 1986
The court referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. The child suffered a condition which included the likelihood of periodic respiratory . .
Cited – In re Z (A Minor) (Identification: Restrictions on Publication) CA 31-Jul-1995
The court was asked whether the daughter of Cecil Parkinson and Sarah Keays should be permitted to take part in a television programme about the specialist help she was receiving for her special educational needs.
Held: The court refused to . .
Cited – In re B (A Minor) (Wardship: Sterilisation) HL 1987
Paramount Consideration in Wardship Application
The House considered a case involving the sterilisation of a girl just under 18, who suffered from mental disability.
Held: A court exercising wardship jurisdiction, when reaching a decision on an application to authorise an operation for . .
Cited – Re W (a minor) (medical treatment: courts jurisdiction) CA 1992
An application was made for a declaration allowing a hospital to treat a girl aged 16 years suffering from anorexia nervosa against her wishes.
Held: The order was made. It is a feature of anorexia nervosa that it is capable of destroying the . .
Lists of cited by and citing cases may be incomplete.
Children, Health
Updated: 01 November 2022; Ref: scu.140672