E v Northern Care Alliance NHS Foundation Trust

This is the judgment of the Court.

These are appeals brought by two young persons from orders made by judges of the Family Division in which it was declared under the inherent jurisdiction that, although the young persons were competent to decide whether to consent to or refuse medical treatment in the form of blood transfusion, it would nevertheless be lawful for their doctors to administer blood to them in the course of an operation if that became necessary to prevent serious injury or death.

The appellants are E, a girl who was aged 16 years 8 months at the time of the decision under appeal, and F, a boy who was aged 17 years 5 months at the time of the decision in his case. Each of them has been baptised as one of Jehovah’s Witnesses and conscientiously rejects blood transfusions as an article of faith. Each was considered by their doctors to have the capacity to make decisions about their medical treatment, i.e. to be Gillick competent (see Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] AC 112). They had made their decisions independently and had the support of their parents.

Some decisions about medical treatment have to be made in the certain knowledge that a medical crisis has arisen. That was not the position here. The declarations were made in relation to the treatment that could be given if a crisis arose. That was statistically unlikely to happen, but if it did, the consequences were potentially very serious. Happily, no crisis arose in either case, transfusion did not occur, and both young persons were soon safely discharged from hospital.

In that sense, the declarations never formally came into effect. E and F are nevertheless aggrieved that their autonomy was overruled, and distressed by the process that occurred. In their applications for permission to appeal they advanced two main arguments. The first was that the State, acting through the court, has no power to overrule the capacitous decision of a mature minor, and in particular a young person aged 16 or 17. The second was that any such power was wrongly exercised in their cases. Permission to appeal was refused in relation to the first argument because it is settled law that the court has the power to intervene in the best interests of a minor even if the effect is to overrule a decision that would be conclusive if the young person had made it after reaching the age of 18. The real question, with which this judgment is concerned, is not whether the power exists, but how it should be exercised.

It is however important to acknowledge that in these cases the court is not simply concerned with the ‘wishes’ or ‘views’ of the Gillick competent young person, but with a treatment decision that would be effective in the absence of intervention by the court. We will therefore refer to the young person’s ‘decision’ so that this important distinction is not overlooked.

In the late evening of Saturday 8 May 2021, E started to feel pain in the right side of her stomach. At 6.30 a.m. on Sunday 9 May, she attended her local general hospital with her mother. Appendicitis was diagnosed and she was transferred to another hospital that morning. At the second hospital she was told that she did not have appendicitis, and was discharged on the basis that she would return the following day for an ultrasound scan. The pain continued and E returned to hospital with her father on the morning of Monday 10 May. After the scan took place, she was told that she had acute appendicitis and needed urgent surgery. The surgery would involve a diagnostic laparoscopy (a low-risk examination procedure), followed by a laparoscopic appendectomy (removal of the appendix by keyhole surgery), but if that was not possible, by an appendectomy by open procedure.

During the course of the day, the risks and benefits of the operation were explained to E in detail by a consultant surgeon, Dr D and a consultant anaesthetist, Dr A. Dr A described the chances of severe surgical bleeding intraoperatively as being in the order of 1:1000 or 1:2000. Dr D said that the possibility of needing a blood transfusion was “extremely rare” and that without one there was “a very theoretical possibility” of E bleeding to death. E provided her written consent to the surgery but stated in writing that she did not consent to blood transfusions.

Other things being equal, E’s operation would probably have taken place within a few hours, according to protocol. For two reasons that did not happen. In the first place, another person’s surgical procedure took longer than expected, so her operation was put back to 9 p.m. and then it became too late to operate. Secondly, the doctors decided that they needed to clarify the question of whether they could administer a transfusion if that became medically necessary. E’s father and the doctors discussed the issue with a member of the local Hospital Liaison Committee for Jehovah’s Witnesses. Throughout this period, E was kept ‘nil by mouth’ so as to be ready for surgery, and continued to be in pain. In the early hours, she was started on intravenous fluids.

On the morning of Tuesday 11 May 2021, the hospital trust filed an urgent application in the High Court in which it asked the court:

The doctors considered that a delay of some hours was acceptable, despite the raised risk of infection from the appendix rupturing, but they determined that if a court decision could not be obtained by 5 p.m. the operation would go ahead then. In the event, the decision was given in time and at about 6 p.m. E had a successful laparoscopic appendectomy without blood transfusion. She returned home on Wednesday 12 May.

The Trust’s application was heard by Mrs Justice Theis by video link, starting at 2 p.m. on 11 May. The Trust was represented by Ms Arianna Kelly, who provided a position statement that included some reference to the law. E and her father attended the hearing unrepresented. Cafcass Legal had been alerted and attended through Ms Shabana Jaffar, solicitor, and Ms Angela Adams, Cafcass officer.

The only written evidence before the Judge was contained in a 5-page statement from Dr A containing these passages:

The hearing began with arrangements being made for the Cafcass representatives to speak by video link to E and her father, a process that took about half an hour. When it resumed, Ms Kelly confirmed that the Trust did not take a firm position but that it did not feel comfortable proceeding without a referral to the court where E’s refusal of treatment might place her life at risk. Dr A gave brief evidence in accordance with his statement. The Judge then heard from Ms Jaffar of Cafcass, who stated that E is a very articulate and intelligent young woman who, despite the visible pain that she was in, had been able to express her views clearly. However, it had been explained to E that in acting on her behalf Cafcass had to put forward what it considered to be in her best interests. The Guardian’s view was that it would be in E’s best interests to receive blood products if necessary to allow her the fullest opportunity to get back to full health. (To be correct, Ms Adams was not “acting on her behalf”. The reality is that Ms Jaffar was speaking on behalf of Ms Adams as Guardian, though not formally appointed as such, and not on behalf of E, who would, had time allowed, have been entitled to separate representation. But nothing turns on this, as the Judge was clearly made aware of E’s firm position.) After Ms Jaffar had made some reference to the applicable legal principles, the Judge asked E’s father if he wished to say anything; he did not.

The Judge then gave a necessarily brief judgment. Having set out the background, the main points of the medical evidence, and E’s views, she gave her decision in these terms:

The Trust’s document referred to by the Judge at paragraph 12 mainly drew attention to the decision in Plymouth Hospitals NHS Trust v YZ [2017] EWHC 2211 (Fam); [2018] 1 FLR. 948 . That was a case where a 14-year-old who had taken an overdose lacked capacity to make a decision about treatment that was urgently needed to prevent serious damage to her liver. At [12] MacDonald J listed what he described as ten key principles from the authorities, which all concerned severely ill babies.

In a statement filed on 1 June, for which permission was granted by this court as E had had no opportunity to put her position in writing at the time of the hearing, she expressed her feelings about part of her discussion with Ms Adams:

Following the hearing, an order was made in these terms:

We do not overlook the pressure under which urgent orders are drafted, but it is essential that orders of this importance accurately reflect the court’s decision. Before us, the Trust accepted that there are a number of problems with this order. First, paragraph 1 is simply wrong; it was never disputed that E had capacity to make a decision about transfusion. Similarly, the reference in paragraph 2 to the absence of parental consent is at best questionable in a case where a child is competent to make a decision, though that is an issue that does not need to be further explored in these appeals as the parents supported the young persons’ decisions. Finally, the drafting of paragraph 2 does not reflect the essence of the Judge’s decision, which was based on evidence that blood transfusion could only be considered if a risk of serious injury or death arose, and then only after all other reasonable treatment options had been attempted.

At 4.30 p.m. on Sunday 5 September, F lost control of his motorbike on a bend and came off into a field. He was taken to hospital by ambulance, and referred on to another hospital, where he was given two CT scans that revealed a grade 3 laceration involving a quarter to a third of his spleen, the grading indicating an injury of moderate severity. Blood was also seen in the abdominal cavity. However, then and for the remainder of his time in hospital F remained haemodynamically stable, i.e. he was not bleeding internally. He was reviewed by the on-call consultant surgeon and treated conservatively.

With an injury of this kind to the spleen, there can be primary or secondary bleeding. Primary bleeding occurs at or shortly after the time of the injury; fortunately, that did not happen in this case. Secondary bleeding may occur later, and particularly within a week or ten days, as a result of a clot loosening, leading to bleeding that can sometimes be catastrophic. If this arises a number of treatments could be attempted, including radiology, the insertion of a coil embolism to stop the bleed, and the removal of the spleen altogether.

At 8.30 p.m. on Monday 6 September 2021, the Trust filed an out-of-hours application to the court for declarations that F was competent to refuse or consent to the receipt of blood and blood products but that, notwithstanding his objection and the absence of parental consent, it was lawful and in his best interests for the doctors to provide blood and blood products in the event of an emergency arising from his injury. The application was heard by telephone by Mrs Justice Arbuthnot at 10 p.m. The Trust was represented by counsel, Ms Francesca Gardner, and F by a solicitor. The Trust had filed a 3-page statement from a consultant surgeon, Mr M, who explained that at that stage the prospect of primary bleeding was present but receding, with the risk of secondary bleeding extending over the days and weeks ahead. His statement included these passages:

Mrs Justice Arbuthnot heard briefly from Mr M and from Mr C, a consultant surgeon instructed at very short notice to give a second opinion on behalf of F. They were in broad agreement about diagnosis and prognosis. Mr M stated that there was less than a 10% chance of F suffering a primary haemorrhage requiring transfusion before 2 p.m. the following day, when a fuller hearing might take place. Mr C considered that the likelihood of a blood transfusion was extremely low if an appropriate treatment plan was followed. The resulting order recorded that it had been submitted on F’s behalf that if a declaration was not made the clinicians would be able to treat him “using their emergency powers in the event of an emergency overnight”. In these circumstances, the Judge declined to make the order sought by the Trust. She considered that it was “not necessary, proportionate or appropriate”. She directed that the hearing should be continued at 2 p.m. on Tuesday 7 September to allow F time to respond more fully to the application, and to have the opportunity to adduce expert evidence on his treatment and the necessity or otherwise for blood transfusion.

We were not addressed in detail about the extent of any “emergency powers”, and we do not therefore express a concluded view about the assertion made to Mrs Justice Arbuthnot, and repeated to us on behalf of F, that the doctors could have transfused overnight if the medical need arose. Doctors undoubtedly have a power, and may have a duty, to act in an emergency to save life or prevent serious harm where a patient lacks capacity or cannot express a view, for example because of unconsciousness. However, we very much doubt that such a power exists in respect of treatment that has been foreseen and refused by a capacitous patient. It is doubtful whether such circumstances can properly be described as an emergency.

At 2 p.m. on 7 September, the matter came before Mrs Justice Judd by video link. F had not suffered haemorrhage overnight and was able to take part, accompanied by his parents. The parties were represented as before, and Ms Gardner had filed a position statement making reference to the legal framework.

The hearing lasted for about three hours. Evidence was given by Mr C and Mr M, and by F and his parents. The Judge then heard submissions and adjourned briefly before giving a judgment.

There was substantial agreement between the two medical witnesses. F remained clinically stable and was now described as being in the window of secondary haemorrhage, with the current risk remaining at approximately 10%, but decreasing every day and abating after a number of weeks. Mr C considered that he could be managed with close observation, that his stable condition and healthy underlying constitution meant that he had ‘a margin of error’ not given to patients with comorbidities, and that the use of blood products was not likely to be necessary. He nevertheless accepted that there remained a distinct risk and that it could arise urgently. Mr M agreed, describing a secondary haemorrhage as “anything from a small re-bleed that’s contained to a really quite catastrophic haemorrhage at an alarming rate”. If the latter occurred, F would need to be in surgery within 30 to 60 minutes.

At the outset of the hearing, it had been suggested on behalf of F that the matter should be adjourned to allow for the opportunity to gather further evidence, but this suggestion, which the Trust opposed, was not pursued through the evidence of Dr C, who conveyed that the clinical picture was now clear.

F himself gave evidence. He expressed his appreciation to the doctors and told the Judge this:

F’s parents gave equally dignified evidence, explaining their support for their son’s decision in the predicament that had arisen. They asked about the chances of F having a transfusion but still not surviving. Mr M gave brief further evidence to explain that there could be no guarantees but that transfusions generally save lives.

Submissions were then made about the law and the welfare assessment. There was discussion about the length of any order, with the Trust reducing its initial suggestion of 100 days to 21 days.

Giving judgment, the Judge rehearsed the background and the evidence, and observed that there was no disagreement between the doctors. As to the law, she directed herself in this way:

The Judge then considered F’s views:

The Judge then stated her decision:

The resulting order provided:

After the proceedings, F made an uneventful recovery, and he was discharged home on Friday 10 September.

The case on behalf of E and F had been fully and effectively set out in writing by their counsel, Mr Shane Brady, who has represented young Witnesses in a number of recent medical cases. Unfortunately, Mr Brady was unable to attend the hearing before us, but his place was taken at short notice by Mr Simon Achonu, who presented the appeals with conspicuous ability. We are grateful to them both for their assistance.

Although certain matters, described below, are specific to their individual appeals, the central argument made by E and F is that the court’s decisions were wrong for these reasons:

To override the decision of a capacitous young person is an affront to their dignity. Increasing age brings increasing respect for personal autonomy and self-determination. By s. 8 Family Law Reform Act 1969, Parliament has provided that a person aged 16 and 17 has the right to consent to any recommended medical treatment, and the House of Lords has held in Gillick that even individuals under 16 can make their own decisions in certain circumstances.

Risk is an inherent part of daily life and young persons are exposed to many risks – riding bikes, dangerous sports, viruses – but the law does not intervene in such matters.

It was wrong in law for the courts to have intervened in these cases. The starting point is a strong presumption in favour of a young person’s capacitous decision. The decision should be respected unless there are very strong reasons for rejecting it. The presumption can only be rebutted where on a balance of probabilities the decision would cause serious harm or death. If it is not rebutted, the decision must be followed. For these propositions, reliance is placed upon these decisions:

Here, the presumption was not rebutted. The risks were remote and the young persons’ decisions were reasonable and safe ones. It was wrong in law to override them on a ‘just-in-case’ basis.

The Convention rights under Articles 8 and 9 are plainly engaged. Interference can only be justified in pursuit of a legitimate aim where it is necessary in a democratic society.

Turning to arguments specific to E’s case:

The error in paragraph 1 of the order, which declares that E lacks capacity, is symptomatic of the inadequate respect paid to her views.

On the central issue, the Judge started from the wrong place. She should have applied the presumption in favour of E’s decision and asked whether there were very strong reasons to override it. She should have given adequate consideration to the rarity of the feared event. The authority cited by the Trust (Plymouth Hospitals NHS Trust v YZ) concerned a person who lacked capacity and contains a list of factors that gives no priority to the decision of an older teenager.

E, who had been in pain for a considerable time, had her operation delayed by the court process while the risk of a burst appendix was growing. In the end she went into surgery with the fear of her wishes being overridden. What message, Mr Achonu rhetorically asks, does this process send to a young person in her position?

On the facts of the case, the requirements of Articles 8 and 9 were not satisfied. This was a totally unnecessary order.

As to the arguments specific to F’s case:

On the facts, the Judge was wrong to say that there were no differences between the doctors. Mr C spoke of managing the situation hour by hour without using blood products.

As occurred in E’s case, the Judge took the wrong legal approach. She set off on the wrong track by referring to the decision in Manchester University NHS Foundation Trust v Fixsler [2021] 4 WLR 95. In that case, which concerned the withdrawal of medical treatment from a 2-year-old child, MacDonald J again listed principles that apply to children who are not Gillick competent. The Judge did not cite the more relevant authority of Re W, to which both parties had referred. Accordingly, she did not give presumptive precedence to F’s decision and she did not ask whether there was a good reason to override it.

Instead, in her decisive welfare analysis at paragraph 16, the Judge mainly focused on a critical examination of F’s wishes, implying that she did not treat it as a matter of such great significance to override them.

The court could have deferred its decision. Instead, it left F with a 21-day order hanging over him.

Responding on behalf of the Trusts, Ms Victoria Butler-Cole QC and Mr Parishil Patel QC, respectively leading Ms Kelly and Ms Gardner, submitted:

The argument that a capacitous decision should prevail as a matter of principle amounts to an argument (for which permission has not been given) that the inherent jurisdiction should not exist in the case of 16- and 17-year-olds. Parliament has not given complete autonomy to this group, as seen in the fact that an effective advance decision under the Mental Capacity Act 2005 cannot be made before the age of 18.

The test is welfare as applied to the facts of the individual case. The assessment must be based on principle but there can be no presumptions, starting points or glosses overlaying the welfare test. It focuses on the patient as an individual and takes account of all the circumstances, medical and non-medical: Aintree University Hospitals NHS Foundation Trust v James [2014] AC 591 at [23].

There is no Bolam-type test that protects decisions that are reasonable or safe from the medical point of view. In any event, there is no body of medical opinion that would regard it as safe not to transfuse if a crisis arose in these cases.

The preservation of a young person’s life is inevitably a consideration of the greatest importance, as noted by Nolan LJ in Re W.

The Appellants’ argument on risk breaks down because it confuses two different situations. One is where treatment may remove the risk of an unlikely event happening at all. The other is where the unlikely event has happened and the risk exists, as in the present cases. The fact that there is a low chance of it occurring is irrelevant because if it eventuates the consequences may be extremely serious. The analogy with ordinary daily risks does not work: the true analogy is with someone who has had an accident and does not call an ambulance.

In neither case was there the option of waiting before making a decision.

Neither judge was misled by the authorities cited to them, which contain nothing objectionable.

In F’s case, a detailed reference to the transcript shows that the Judge was right to say that there was no medical disagreement.

Neither decision was wrong. In cases as sensitive and difficult as these, an appellate court should be very slow to conclude that a judge who has correctly identified the law was wrong: Aintree at [43].

In each appeal, the parties applied for permission to file further medical evidence. In E’s case, the application concerned two reports commissioned on her behalf from Professor M.F. Murphy, Consultant Haematologist and Professor of Blood Transfusion Medicine, University of Oxford, the second provided in response to a report commissioned by the Trust from Professor Gordon Carlson, Consultant General and Colorectal Surgeon and Honorary Professor of Surgery, University of Manchester. On behalf of F, a report was provided by Dr C, who had given evidence at both urgent hearings but had not had the opportunity to put his opinion into writing. By the time of the appeals, the hospital medical records of E and F had also been gathered.

Among the issues debated in the reports, particularly in E’s case, were the latest research and practice on the management of patients by alternative treatments to blood transfusion and the identification of any risks that may arise from transfusion. Although it was not entirely clear that the criteria for the admission of further evidence on appeal were satisfied, we admitted this evidence. There had been very little opportunity for the parties to provide it at the prior hearings and there was no opposition from any quarter. We were also mindful of the undoubted expertise of the authors and the importance of the issues. As it transpired, and as can be seen from the summary of the arguments we heard, nothing turned on the availability of a richer evidential picture. The essentials of the two cases were before the courts when they made their decisions.

As we have stated, the inherent jurisdiction is available in all cases concerning minors, namely persons under the age of 18. That has always been so and any change must be a matter for Parliament. Recent attempts by Mr Brady to persuade judges at first instance to take a different view have failed in Re X (A Child) (No.2) and in A Teaching Hospitals NHS Trust v DV (A Child) [2021] EWHC 1037 (Fam) (Cohen J); in these cases, as in the present cases, permission to appeal on that basis was refused by this court.

When the court is being asked to exercise its inherent jurisdiction, there are in our view three stages. The first is to establish the facts. The second is to decide whether it is necessary to intervene. If it is, the final and decisive stage is the welfare assessment.

The inherent jurisdiction is a protective power and one of the court’s central concerns at the fact-finding stage will be to identify the risk in question. Colloquially, ‘risk’ can be used to mean the risk of an event occurring (its probability) or the risk from the event occurring (its consequences). One must keep this distinction in mind when making and interpreting statements about risk.

Once the essential factual position is understood, the next question will be whether immediate action is necessary, or whether a decision might better be postponed. In a case where a crisis may not arise and a decision could reasonably be deferred until it does, there may be advantages in that course. It will depend on the facts, and in particular how realistic it would be to expect a fair and timely decision to be given if a crisis arises.

One then comes to the all-important welfare assessment. Over the past forty years and more, the court has exercised its powers in respect of minors and persons over 16 who lack capacity in a broadly consistent manner, the former being exercised by the Family Division of the High Court and the latter by the Court of Protection since the inception of the Mental Capacity Act 2005. It is unnecessary to do more than identify a number of milestone appeal decisions in medical treatment cases to make good this observation: In Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1424; Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 Fam. 33; Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64; In Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242; In Re A (Minors) (Conjoined Twins: Medical Treatment) [2001] 2 WLR 480; Aintree University Hospitals NHS Foundation Trust v James [2014] 1 AC 591.

These cases, spanning persons of all ages, mandate an assessment from the individual’s point of view by which the court seeks to identify his or her best interests in the widest sense. The assessment will be driven by circumstances that will vary widely from case to case. Considerations that may weigh heavily in a case involving babies are likely to be of less weight in cases of older children, young persons and stricken adults. The courts have therefore been most reluctant to lay down general principles: Aintree at [36].

That does not mean that the welfare assessment takes place in a vacuum. The law reflects human nature in attaching the greatest value to the preservation of life, but the quality of life as experienced by the individual must also be taken into account. The views of the parents of a baby or young child are always matters of great importance. Likewise, our common experience leads us to pay increasing regard to the views of children and young people as they grow older and more mature.

The cases contain authoritative statements about the sanctity of life, for example in Re J at page 46, and in Aintree at [35]:

In one sense, an unfettered welfare assessment does not sit easily with presumptions or starting points. But, approached carefully, these are more matters of form than substance. What is important is that the court identifies the factors that really matter in the case before it, gives each of them proper weight, and balances them out to make the choice that is right for the individual at the heart of the decision. If this process is properly carried out so as to arrive at a sound welfare decision, the court will not be acting incompatibly with rights arising under Articles 2, 3 and 8 (and, here, 9) of the European Convention on Human Rights.

Welfare assessments in medical treatment cases concerning young persons with decision-making capacity involve the balancing of two transcendent factors: the preservation of life and personal autonomy. The leading decision in this field is Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64. It concerned a 16-year-old girl in local authority care who suffered from anorexia. The authority obtained an order under the inherent jurisdiction to place her in a treatment unit and treat her without her consent. She appealed on the basis that the court did not have the power to overrule her refusal of treatment but that, if it did, it had used it wrongly. The first assertion, which relied on FLRA 1969, s. 8 was rejected. The second argument also failed. On that point, the headnote reads:

Lord Donaldson of Lymington MR said this at pages 80G and 81H:

Balcombe LJ said this at pages 88A, 89B and 89G:

Finally, Nolan LJ stated at page 93G and 94B:

W’s appeal was dismissed. As can be seen, her condition had deteriorated since the original decision and the assessment that she had capacity to make treatment decisions at any stage was doubted. However, the court proceeded on the basis of the trial judge’s finding that she had capacity. It can also be seen that the situation of young Jehovah’s Witnesses was very much in its contemplation. The analysis in Re W is therefore of direct relevance to the present cases. Where there was a clear prospect of very serious harm to 16-year-old W, the court had no hesitation in overriding her decision. Each member of the court expressed himself somewhat differently, but in our view there is no real difference in their reasoning. They each asserted the primacy of the welfare principle, while emphasising the importance of the decision of a capacitous young person. Such decisions will doubtless prevail in the great majority of situations, whether or not in the medical context, and the court will simply not be involved. At the same time, each member of the court explicitly referred to cases where the irreparable and disproportionate consequences of a refusal of treatment places the court under a duty to intervene. In our view, this approach remains good law. It survives the Human Rights Act 1988 and the Mental Capacity Act 2005, and it has not been overtaken by subsequent decisions, by the passage of time, or by the evolution of societal values.

Re X (A Child) (No.1) concerned a 15-year-old Jehovah’s Witness to whom doctors wished to give blood to treat serious sickle cell syndrome. Sir James Munby authorised this in the short term, stating the principle in this way at [13]:

In his later judgment in the same case (Re X (A Child) (No. 2)), Sir James considered the position relating to longer-term treatment for X. He fully reviewed the legal landscape since Re W, and concluded at [84], as we have done, that the decision remains good law. He further addressed the arguments under Articles 2, 3, 5, 8, 9 and 14 the Convention, again concluding at [157] that there is nothing in the jurisprudence to throw doubt upon the continued validity of Re W. In response to a submission made by Mr Brady based upon the decision of the Canadian Supreme Court in AC v Manitoba he similarly concluded at [99] and [104] that the decision confirmed that in the Canadian context the court always has the last word.

AC v Manitoba concerned a 14-year-old Jehovah’s Witness with Crohn’s Disease who was susceptible to internal bleeding. Supported by her parents, she refused transfusion, despite facing a significant risk of damage to her brain and vital organs through oxygen deprivation. Social services intervened on child protection grounds. Transfusion was ordered, and the young person survived and appealed. Her appeal was dismissed. In giving the judgment of the majority, Abella J carefully reviewed the approach taken in other jurisdictions, including ours. At [82] onwards, she made these observations about the interpretation of best interests, which I cite as they were relied upon by the Appellants before us:

We first address the Appellants’ central argument that the welfare assessments in their case were wrongly approached and therefore wrongly decided. The submission relies heavily on the statements by Balcombe LJ in Re W, in which he stated that the court should not lightly override the decision of a capacitous young person and should approach its decision with a strong predilection to give effect to the child's wishes, respecting them unless there were very strong reasons for rejecting them. Mr Achonu submits that “a strong predilection” amounts to a presumption, and that the scales are therefore very firmly weighted towards the capacitous young person’s wishes. “Very strong reasons” should only be found where, picking phrases respectively from Re W at 88F, Re X (A Child) (No. 1) at [13], and Re X (A Child) (No. 2) at [2], “circumstances… will in all probability lead to the death of the child or to severe permanent injury”, “there is clear evidence of a serious risk to health or possible death if the court does not intervene” or “the consequence of the child’s decision is likely to be serious risk to health or death”. In the present cases there was no clear evidence of a probability of death or serious injury.

Mr Achonu then refers to the decision in An NHS Trust v A, a case in which a 13-year-old wanted a termination of pregnancy. He refers to the statement of Mostyn J at [9] that if A did have sufficient understanding and intelligence to know what a termination would involve, that would be “the end of the matter”. This was referred to in passing in Re X (No. 2) at [30] as a case where a Gillick competent girl was held to have “the right to decide for herself” whether or not to have the operation. Mr Achonu further relies on the statement in AC v Manitoba at [84] and [88] that respecting a mature adolescent’s wishes is “by definition in his or her best interests”.

The first difficulty with these submissions is that, as we have seen, Re W does not establish a presumption in favour of the mature adolescent’s decision, but instead affirms welfare as the overriding principle. It speaks for the young person’s decision to be upheld where possible but also speaks of those rare circumstances where the gravity of the consequences and the imperative to preserve life may require the court to intervene.

The argument also falls into the familiar error of treating phrases culled from judgments as if they were universal statements of principle. For example, Mr Achonu lays emphasis on statements that there needs “in all probability” to be a “likely” serious risk to health or risk of death if the court is to intervene, and argues that that was not so here, where the likelihood of a crisis was remote. That argument confuses the probability of a risk and its consequences in the way we have warned against. When making a decision in a case where the likelihood of a crisis is low but the consequences may be extreme, the court cannot simply ignore the risk, any more than the doctors can. Acting responsibly, it has to contemplate the position where a crisis has arisen and to identify the treatment that would then be called for. It has then to weigh that future scenario, unlikely as it is, against the present impact on the young person of being overruled, though only with provisional effect, on a matter of such personal significance to them. This asymmetry between an unlikely future and a certain present is a feature of cases where a crisis has not arisen and may never arise but, seen in the light we have suggested, there is no conceptual difficulty in the court making its welfare assessment. At all events, we agree with the Trusts’ submission that no helpful analogy exists between the ordinary risks that arise in everyday activities and the special risks that may arise in the context of medical treatment. Everyday risks are a normal part of living, while avoidable medical risks may imperil survival.

It is true that in the majority of reported cases in which a refusal of treatment may lead to serious injury or death, the scales have tipped in favour of treatment, but that is not the invariable outcome. A contrary example is supplied by the decision in DV (A Child), where a 17-year-old Jehovah’s Witness suffered from cancer that required surgery to his lung. DV had undergone several previous procedures and in 2017 he had been transfused, causing him great distress and leading to him suffering post-traumatic stress disorder. The treating team now applied to the court for a ruling on whether they should give blood products if required during this operation. They did not wish to overrule DV’s refusal and Cohen J approved the plan for treatment without blood products despite the risks entailed. At the same time he declined to adjourn to hear the argument, again urged by Mr Brady, that the court had no standing in the matter, and permission to appeal was, as we have said, refused.

Finally, on the issue of principle, we do not accept the argument, based on An NHS Trust v A and AC v Manitoba, that there is a point where the decision of a capacitous young person becomes “determinative” and where respecting such a decision is “by definition in his or her best interests”. Again, care needs to be taken with the word ‘determinative’. Insofar as it is said to mean that the young person is the ultimate decision-maker, that is not so. Their decision may be the determinative factor in the court’s welfare evaluation, but that is in the different sense that it is the factor that has been found to predominate.

Nor do the decisions relied upon make good Mr Achonu’s argument. In An NHS Trust v A, a 13-year-old wanted a termination of pregnancy. The only question for the court was whether she had capacity to consent to the procedure; if she did, the doctors were happy to act on her consent. At [9], Mostyn J accordingly observed that if A had sufficient understanding and intelligence to know what a termination would involve, that would be “the end of the matter”. He was not asked to make a welfare decision and his words cannot be taken out of context to suggest that the court had no welfare jurisdiction, however improbable it is to see it being exercised against the wishes of a young person in a case of that nature. An NHS Trust v A was referred to in passing in Re X (No. 2) at [30] as a case where a Gillick competent girl was held to have “the right to decide for herself” whether or not to have the operation, but that observation must be understood in the light of the issue that was before Mostyn J.

Mr Achonu further relied on the statement in AC v Manitoba at [84] and [88] that respecting a mature adolescent’s wishes is “by definition in his or her best interests”. One does not have to conduct as full an analysis as was performed in Re X (No. 2) to see that the Supreme Court of Canada expressly preserved its powers in respect of 16- and 17-year-olds. Were it otherwise, its decision would not represent the position in this jurisdiction.

We now turn to matters specific to each appeal, reminding ourselves of the high threshold for appellate intervention as laid down in Aintree at [43].

In this case, the deficits in the order which we have identified were unwelcome but we do not see them as symptomatic of any shortcoming in the Judge’s approach to her decision. They were matters that could easily have been resolved by an informal application to amend the order and they are not a reason for allowing an appeal.

As to the law that was cited to the Judge, we accept that the decision in Plymouth Hospitals NHS Trust v YZ, a case of a young person lacking capacity, was not particularly helpful. It was no doubt felt that a list of the kind that appears in that case at [12] might be of use. Indeed the same ten-point list appears with minor adjustments in University Hospitals Plymouth NHS Trust v B (A Minor) [2019] EWHC 1670 (Fam) at [14], a case where MacDonald J overrode a refusal by a capacitous 16-year-old of intravenous infusions for diabetes, and again, with some elaboration, in Fixsler at [57], a case about a small child with a catastrophic brain injury. The Trusts’ submission to us that there is nothing objectionable about the list is a fair one, but only so far as it goes. The court needs to focus on the factors that really matter in the case before it, and an undifferentiated list does not help in that way. There is a world of difference between a small baby with a brain injury and a capacitous child approaching adulthood. By way of illustration, in the lists presented to the judges who heard these cases, the views of the child appear only as the last item, and in these terms:

However, returning to E’s case, it is apparent that Theis J treated E’s decision as a matter of considerable importance, referring to her very strongly held religious views, and going on to place them alongside the medical evidence. She also explicitly acknowledged the low probability of a crisis arising. We are satisfied that she approached the matter correctly in substance, as indeed did MacDonald J in each of the three cases we have mentioned. Accordingly, while there is some substance in Mr Achonu’s critique in this respect, it does not undermine the integrity of the Judge’s decision in any practical way.

Like the Judge we are sympathetic to the predicament in which E found herself, participating in a hearing while waiting for an operation, but a decision had to be made on a matter of such importance and it was made within a very tight timetable. As to Mr Achonu’s rhetorical question about the message that the outcome sends to young people, the answer is that the law, in common with all major religious faiths, has a profound respect for the value of human life. Article 2 of the European Convention provides that everyone’s right to life shall be protected by law. Once a young person becomes an adult, decisions about whether to accept or reject medical treatment become theirs absolutely, but before that age the court must act upon its objective assessment of the young person’s best interests, even where this conflicts with sincere and considered views.

Finally, we do not accept that the Judge’s order was unnecessary in Convention terms. With the benefit of hindsight, we know that it never came into effect, but had a crisis arisen it might have saved E’s life. Also, we now know that the operation went smoothly by keyhole surgery, but before it began, an open procedure remained a possibility. The Judge took account of the impact on E of overruling her wishes, but she was clearly entitled to conclude that the greater imperative lay in the preservation of life if danger arose. At all events, her decision was certainly not wrong.

We agree with the Trust that there was no relevant difference between Mr M and Mr C. As the treating surgeon Mr M may have been more preoccupied by the possibility of a crisis arising, while Mr C was more sanguine about the prospects for conservative management. However, as we have noted, Mr C nevertheless accepted that there remained a distinct risk and that it could arise urgently.

In F’s case, a medical procedure was not planned, indeed it was hoped that one would never happen. It was therefore a case where the court needed to ask itself whether it was necessary to make an immediate order. On the out-of-hours application, Arbuthnot J decided that it was not. However, the evidence before Judd J established that surgery might in the worst case be needed within an hour. She therefore understandably decided that a decision could not be postponed because the risk of imminent haemorrhage was not insignificant. Had there been a significantly longer window of time in which to consider how to respond to a crisis, she might have felt it appropriate to make her baseline findings of fact but then to defer a decision until it was needed. As it was, the evidence of urgency justified the making of an immediate decision and the length of the order was in our view reasonable, though undoubtedly felt to be burdensome by F.

The submission about the legal self-direction that the Judge gave herself, in this case by reference to Fixsler, is similar to that made in E’s case, and in our view it leads to the same conclusion. In what was necessarily a swiftly-prepared judgment, the Judge gave herself a generic self-direction that took in a number of matters, including some that would only arise under the Mental Capacity Act, but once again, the substance of her decision fully engaged with the two factors that lay at the heart of the matter.

Finally, the judgment of Judd J shows that she very fully considered F’s beliefs and the significance of his own decision to refuse treatment. She did refer to the fact that F had had been through a lot and had had a short time to consider his decision; also that if he had to be transfused it might or might not cause him long term harm. We do not consider that in taking account of these matters she was downplaying the deep significance of F’s religious faith to him.

We therefore conclude that the decision in F’s case was one that the Judge was clearly entitled to reach and that it certainly cannot be characterised as having been wrong.

For these reasons, we dismiss the appeals.