Incapacity II Children
Lecture notes
Usually parents’ consent to a child’s medical treatment.
But their decision can be overridden by the court, applying the ‘best interests’ test
Children Act 1989 section 1
(1) When a court determines any question with respect to—
(a) the upbringing of a child… the child’s welfare shall be the court’s paramount
consideration.
o E.g. In Re C (A Child) (HIV Testing) [2000], Butler Sloss LJ: This child has the right
to have sensible and responsible people find out whether she is or is not HIV
positive.
Meaning of best interests?
General Medical Council, 0–18 Years: Guidance for all Doctors (GMC, 2018).
12 An assessment of best interests will include what is clinically indicated in a particular
case. You should also consider:
a) the views of the child or young person, so far as they can express them,
including any previously expressed preferences
b) the views of parents
c) the views of others close to the child or young person
d) the cultural, religious or other beliefs and values of the child or parents
e) the views of other healthcare professionals involved in providing care to the
child or young person, and of any other professionals who have an interest in
their welfare
f) which choice, if there is more than one, will least restrict the child or young
person’s future options.
Court involvement if:
(a) Disagreement between parents, or
(b) Disagreement between parents and doctors, or
(c) Disagreement between mature minor and doctors, or
(c) Controversial medical treatment...
Re JS (Disposal of Body) [2016] EWHC 2859
Teenage girl was dying of cancer and wanted to be cryogenically preserved after her
death, it would make her last days better knowing her wishes would be respected.
The making of a specific issue order is governed by the welfare principle. In this case the
predominant features are JS's wishes and feelings and her acute emotional needs.
o These are best met by an order granting the mother the right to make
arrangements during JS's lifetime for the preservation of her body after death.
o In making this order, the court is not approving the choice of arrangements, but
it is giving JS and her mother the opportunity to make that choice.
, Postscript: JS died peacefully in the knowledge that her body would be preserved in the
way she wished.
However, the note makes unhappy reading in other ways. The Trust expresses very real
misgivings about what occurred on the day of JS's death. In brief and understated
summary:
On JS's last day, her mother is said to have been preoccupied with the post-mortem
arrangements at the expense of being fully available to JS.
Voluntary organisation is said to have been under-equipped and disorganised, resulting
in pressure being placed on the hospital to allow procedures that had not been agreed.
F v F (MMR Vaccine) [2013] EWHC 2683 (Fam) Theis J
Parents couldn’t decide on whether to vaccinate the child.
Father changed his mind – this perhaps displays a lack of maturity and an appreciation
that views can change for a variety of reasons.
Second, they have become focused on the ingredients of the vaccine without being able
to consider and balance the wider picture, and the consequences of them not having it,
including medication that would be required in the event of them becoming ill.
If they are married, both parents automatically have parental responsibility. If they are
unmarried, the father will have parental responsibility if he is registered on the child’s
birth certificate.
o … it is not surprising that they are likely to have become influenced by their
mother's views. Those views are clearly strongly held and will inevitably have
influenced both children….
It is unfortunate the parents were not able to reach a consensus on this issue; that
would have been best for both the children.
In the absence of that the responsibility falls on the court to exercise that parental
responsibility for the parents having regard to the welfare interests of each child.
The NHS Trust v A (a child) [2007]
Parents didn't want child to have a bone marrow transplant but were overruled by court
Holman J: I have been deeply impressed by the parents. … They are in intimate and
constant contact with A. They witnessed her suffering during the ordeal. They know her
happiness and contentment at home now. But by the end of the hearing, and in
agreement with the guardian, I have become convinced that it is in the overall best
interests of A to undergo a bone marrow transplant.
An NHS Trust v SR [2012]
Mother wanted child to have alternative treatment instead of chemotherapy for her
child with brain cancer. Mother was worried that her child would be infertile if he went
through with that therapy.
o Judge was blunt in that between infertility and death, it’s more important to live
with compromised fertility.
Bodey J: I have to keep firmly in mind what is required for there to be any realistic
prospect of the court’s preferring some complementary alternative to the standard
mainstream treatment for N’s condition.
, What is required is the identification of a clinician experienced in treating children aged
about 7 having this kind of brain cancer; a clinician with the access to the necessary
equipment and infrastructure to put the suggested treatment into effect and able and
willing to take over the medical care of and responsibility for N.
Re King (A Child) [2014] EWHC 2964 (Fam)
Ashya King’s parents took him out of the hospital and went to Europe with him.
European arrest warrant was issued and there was a man hunt to find them. In the end,
the child was found and the case was heard in court. Judge said parent can make this
decision to allow them to give child proton therapy.
Proton beam therapy would only target narrow part of brain but brain required
radiation in wider parts. Without radiation and chemotherapy, cancer could return
within 5 years was 80%
Unusually we have a judge saying what parents want is reasonable and they can do this.
Interesting case of bounds of reasonableness of parental choice.
o Good example of what can happen in these cases, relationship between parents
and doctors can break down catastrophically such as in this case.
Baker J: Any parents in the position of Mr and Mrs King would do whatever they could
to explore all options. Some parents would follow the advice of the local doctors to use
conventional radiotherapy, others would prefer the relatively untested option of proton
therapy (assuming the funds can be made available to meet the cost of transport and
treatment) in the hope that the toxic effects of radiation will be reduced.
o Both courses are reasonable and it is the parents who bear the heavy
responsibility of making the decision. It is no business of this court, or any other
public authority, to interfere with their decision.
o (Relational autonomy)
Great Ormond Street Hospital v Yates [2017]
Charlie Gard case. Question of whether what the parents doing reasonable and
therefore permissible or not reasonable, therefore needing to be overruled. Where
parents want to do something in the child’s interest, courts have to step in.
McFarlane LJ – It goes without saying that in many cases, all other things being equal,
the views of the parents will be respected and are likely to be determinative.
Very many cases involving children with these tragic conditions never come to court
because a way forward is agreed as a result of mutual respect between the family
members and the hospital, but it is well recognised that parents in the appalling position
that these and other parents can find themselves may lose their objectivity and be
willing to "try anything", even if, when viewed objectively, their preferred option is not
in a child's best interests.
As the authorities to which I have already made reference underline again and again, the
sole principle is that the best interests of the child must prevail and that must apply
even to cases where parents, for the best of motives, hold on to some alternative view.
Francis J – It has sadly come in to the public domain recently that some of the staff at
that hospital have been subjected to serious threats and abuse. I made it clear before,
