Plymouth Hospitals NHS Trust v YZ & Ors

At 7.10pm yesterday evening Plymouth Hospitals NHS Trust made an application by counsel, Ms Sophia Roper, for an order declaring that:

YZ, born on 28 March 2003 and now aged 14, lacked capacity to give her consent to medical treatment;

That it was in YZ’s best interests to receive as a matter of urgency treatment for a suspected overdose of paracetamol, in the form blood tests to ascertain levels of paracetamol in YZs’s blood and thereafter an infusion of Parvolex for up to 24 hours and blood tests as required to check the level of paracetamol in her body;

That it was lawful, being in YZ’s best interests, for medical staff to provide this treatment and to use reasonable and proportionate measures, including those which involve such physical or chemical restraint as in their clinical judgment is necessary to ensure that YZ received the treatment;

That any deprivation of liberty as a result of the provision or facilitation of the proposed treatment was lawful and authorised under the inherent jurisdiction of the High Court provided always that (i) any measures that may be used to provide such treatment and/or any deprivation of liberty shall be the minimum necessary and (ii) all reasonable steps are taken to minimise distress to YZ and maintain her greatest dignity.

At 8.00pm I heard submissions from Ms Roper over the telephone. Having heard those submissions and considered the information provided to me by email regarding the history of the matter, the position with respect to consent and the proposed treatment plan I granted the orders sought. I now set out in detail my reasons for making the orders I did on an extremely urgent basis.

YZ arrived at hospital at 11.30pm on 25 July 2017. She was brought to the Emergency Department by the Police after she had knocked on a stranger’s door and stated that she had taken an overdose. The hospital admission notes record that YZ reported she had left her family home at 8.15pm on 25 July 2017 following an argument with her mother and, after walking for a short while, had taken some tablets. At that stage YZ claimed that she had taken six migraine tablets and two to three paracetamol tablets.

YZ’s mother, who also attended the hospital, reported that just before YZ left the family home they had had an argument triggered by a friend of YZ sending a text to the mother which stated that YZ had been raped and was now pregnant. The mother reported to staff at the hospital that she had tried to get YZ seen by mental health professionals on three occasions but has not been successful. She further reported that YZ is now awaiting a mental health assessment.

Following further examination it became unclear how many paracetamol tablets YZ had taken. As I have already noted, on admission YZ claimed that she had taken six migraine tablets and two to three paracetamol tablets. She later stated that she had taken “some” paracetamol but was not clear about the amount as she had thrown the packets away. However, she told the consultant paediatrician (Dr A) that she had taken at least one “strip” which would probably be about ten to twelve tablets. The medical staff consider that a “toxic” dose for someone of YZ’s size and weight would be over twenty tablets. On the history available staff could not be sure that YZ had not taken a toxic dose of paracetamol tablets.

The risks of taking a toxic level of paracetamol are the risk of long term liver damage and, in some cases, death. Within this context, given the position suggested by the history medical staff considered that YZ needed blood tests to ascertain paracetamol levels and liver and kidney function and an ECG (to ascertain whether the migraine tablets YZ claimed to have taken were an issue).

The medical staff took advice from the specialist liver team at a specialist unit. They were advised that the clinical guidelines for a patient who has taken paracetamol and presents eight hours after ingestion but within 24 hours of the same is to commence treatment with a continuous infusion of Parvolex for a 24 hour period, with accompanying blood tests which, if they come back clear, indicate that the infusion can be stopped. If YZ had taken a toxic level of paracetamol and did not receive treatment within 24 hours the specialist advice was that she was at risk of long term liver damage or death.

It will be apparent from the timings given in this summary of the background that, having regard to the advice given by the specialist liver team at the specialist unit that the application for orders in respect of YZ’s treatment first came before me only 15 minutes or so before the window for optimum treatment advised by the specialist unit in YZ’s case came to an end.

The reason for this situation arising appears to be that from the point at which YZ arrived at hospital and it became apparent that it was possible that she had taken a paracetamol overdose medical staff engaged in lengthy discussions with YZ in an attempt to get her to agree to blood tests and, if necessary consequent on the results of those tests, treatment. Various different strategies were employed, all with the result that YZ would agree to testing and treatment, only to refuse at the last minute. YZ’s mother, who was in favour of testing and treatment, advised the medical team that oppositional behaviour was normal for YZ and, once she began exhibiting such behaviour, it would last for between two and three days, during which time YZ would refuse to cooperate with anything. When Dr A discussed with YZ the risk of liver damage, and possibly death, YZ’s response was “so what”. The medical staff considered that YZ would refuse blood testing and any subsequent treatment.

The information regarding the extent to which YZ was Gillick competent with respect to the question of testing and treatment is best described as being equivocal. Dr A, who had spent much a good deal of time talking to YZ, considered her to be Gillick competent. However, Ms Roper informed the court that information had also been provided to medical staff that YZ has been the victim of sexual grooming and is potentially exposed to significant external pressures as indicated by the allegation that she had been raped and is pregnant. In addition, as I have already noted, there is some evidence that YZ may have mental health difficulties and is awaiting a mental health assessment. Within this context, there was some doubt regarding the question of Gillick competence.

Within the foregoing context, and in circumstances where YZ was refusing to allow blood testing or any treatment consequent upon such testing, the Trust applied for the orders I have summarised at the outset of this judgment, contending that the application could not wait to be heard within normal court hours in circumstances where the optimum window for providing treatment to YZ was about to come to an end.

The following key principles can be drawn from the authorities, in particular In Re J (A Minor)(Wardship: Medical Treatment) [1991] Fam 33, An NHS Trust v MB [2006] EWHC 507 (Fam), Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554 and Kirklees Council v RE and others [2015] 1 FLR 1316:

The paramount consideration of the court is the best interests of the child. The role of the court when exercising its jurisdiction is to give or withhold consent to medical treatment in the best interests of the child. It is the role and duty of the court to do so and to exercise its own independent and objective judgment;

The starting point is to consider the matter from the assumed point of view of the patient. The court must ask itself what the patient’s attitude to treatment is or would be likely to be;

The question for the court is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken;

The term ‘best interests’ is used in its widest sense, to include every kind of consideration capable of bearing on the decision, this will include, but is not limited to, medical, emotional, sensory and instinctive considerations. The test is not a mathematical one; the court must do the best it can to balance all of the conflicting considerations in a particular case with a view to determining where the final balance lies. In reaching its decision the court is not bound to follow the clinical assessment of the doctors but must form its own view as to the child's best interests;

There is a strong presumption in favour of taking all steps to preserve life because the individual human instinct to survive is strong and must be presumed to be strong in the patient. The presumption however is not irrebuttable. It may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering and other burdens are sufficiently great;

Within this context, the court must consider the nature of the medical treatment in question, what it involves and its prospects of success, including the likely outcome for the patient of that treatment;

There will be cases where it is not in the best interests of the child to subject him or her to treatment that will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child’s and mankind’s desire to survive;

Each case is fact specific and will turn entirely on the facts of the particular case;

The views and opinions of both the doctors and the parents must be considered. The views of the parents may have particular value in circumstances where they know well their own child. However, the court must also be mindful that the views of the parents may, understandably, be coloured by their own emotion or sentiment;

The views of the child must be considered and be given appropriate weight in light of the child’s age and understanding.

With respect to the question of competence, a child will be considered Gillick competent in respect of a decision concerning medical treatment if he or she has achieved sufficient understanding and intelligence to understand fully what is proposed (Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 FLR 224). With respect to children under the age of 16, the court has the power to override the decisions of a Gillick competent child where it is in the child’s best interests for it to do so (Re R (A Minor)(Wardship: Consent to Treatment) [1992] 1 FLR 190).

As I have already made clear, having heard submissions from Ms Roper I was satisfied that it was in YZ’s best interests to make the orders relating to her treatment sought by the Trust. My reasons for so deciding were as follows.

The ‘Out of Hours’ service is provided for applications that are considered to be urgent. I was satisfied that the application was of the utmost urgency and suitable for dealing with out of hours. For the reasons I have already set out, at the time the application came before the court at 8.00pm the court was faced with evidence that YZ may have taken an overdose of paracetamol, evidence that if she had done so the prognosis was serious, and possibly fatal, and evidence that the window for optimum treatment advised by the specialist unit in YZ’s case was closing rapidly.

It goes without saying that, ordinarily, decisions of the gravity of that with which the court was concerned here should be taken at a hearing in normal court hours and that the ‘Out of Hours’ service does not represent the ideal ‘venue’ for such cases. Exceptionally, however, there will be cases where the court has no option but to make a substantive decision out of hours to ensure the best interests of the child are safeguarded.

In light of the extreme urgency of the required decision on whether to undertake blood testing and commence treatment if necessary given the timescales for optimum treatment, I decided that it was necessary take the decision yesterday evening and to do so on the basis of submissions advanced by counsel. I was of course conscious that it was not possible, in the very short timescale available, to arrange representation for YZ (although those instructing Ms Roper had made efforts to contact CAFCASS Legal, without success) or permit the mother time to secure representation. Whilst I of course had regard to these intrinsic disadvantages I was satisfied that, in the circumstances of this case, every minute spent putting in place such arrangements moved YZ further away from the treatment she required to avoid liver damage, or even death, had she, as the evidence appeared to indicate she might have, taken an overdose of paracetamol. I also bore in mind that at points leading up to the hearing YZ had agreed to treatment, before subsequently changing her mind, and that the mother wished YZ to have treatment.

All that said, it is unfortunate that the matter did not come before the court until the window for optimum treatment advised by the specialists was almost closed. I entirely understand the need for medical staff to endeavour to reach an agreed way forward with a young person when seeking to administer medical treatment. Such an approach is entirely proper and consistent with best practice. However, in cases where it appears that there is, or is likely to be, an issue that may require the intercession of the court, it is important that sufficient time is left to seek an order from the court, preferably within normal court hours, should efforts to reach a consensus fail.

Having decided to determine the matter, having regard to the information available to the court and to the submissions of Ms Roper, with respect to the order sought by the Trust I was satisfied that it was in YZ’s best interests to grant the order sought. In reaching that determination I took into account following factors:

There was evidence, comprising YZ’s own statements, that she may have taken an overdose of paracetamol. If she had, then there was cogent evidence before the court that the toxic effect of a paracetamol overdose risked serious damage to YZ’s liver, which damage would affect her adversely in the long term, and even a risk of death. The dangers associated with paracetamol overdose, and in particular the delayed nature of those dangers, are well known.

There is a strong presumption in favour of taking all steps to preserve life. If YZ had taken an overdose of paracetamol then the evidence was clear that her life was at risk. Within this context, I was satisfied that the presumption in favour of preserving YZ’s life was a compelling factor in determining this application. That conclusion was lent further weight in this case by the fact that the optimum window for taking potentially life preserving measures was limited and was about to come to an end.

The nature of the medical treatment proposed by the applicant was invasive, involving as it did the taking of a blood sample and the insertion of a cannula in order to administer any treatment that was shown to be necessary consequent upon the outcome of the blood tests. Further, the treatment would be rendered all the more invasive in the broader sense of the word if it became necessary to restrain YZ in order to determine whether, as she suggested, she had taken a toxic level of paracetamol and thereafter to treat that problem. Against this, the outcome of any testing and medical treatment would be to determine whether YZ had taken a toxic level of paracetamol and, if so, to address the risk of liver damage and the risk of death arising out of that toxicity. Within this context, the invasive testing and treatment proposed had manifest benefits if YZ had taken an overdose of paracetamol.

The views of the medical staff, based on specialist advice they have received, were clear. In light of the history that they had been given, there was a clear medical consensus that blood testing must take place to determine whether YZ had a toxic level of paracetamol in her system, that if a toxic level of paracetamol was revealed treatment by way of a 24 hour infusion of Parvolex was required and that the optimum window for administering that treatment was in the 24 hours after ingestion, which window was to close less than 30 minutes from the time this matter came before the court. Within this context, YZ’s mother was said to be clear in her view that YZ should have the testing and treatment recommended by medical staff. YZ’s mother was also said to be clear that YZ’s objections to testing and treatment were, in her view, a manifestation of YZ’s wider tendency towards oppositional behaviour.

The evidence available to the court suggested that YZ’s views fluctuated and that at times she had been prepared to accept testing and treatment, before changing her mind at the last minute. There was a suggestion that this refusal was a manifestation of her wider tendency towards oppositional behaviour in the context of a plainly difficult period for her rather than a considered, rational objection. There was also a suggestion that other factors might be affecting her position, including the possibility of her having been the subject of a sexual assault. Within this context, whilst it was plain that at times YZ resisted testing and treatment, it was equally plain that her attitude to treatment varied and, at times, she agreed to blood tests being taken and to any subsequent treatment required.

If YZ had taken an overdose of paracetamol, then the available evidence suggested that testing and treatment was plainly in her best interests in circumstances where such testing and treatment would result in the prevention of liver damage and possible death.

Having regard to all these factors, and having YZ’s welfare as my paramount consideration, I was entirely satisfied that it was in YZ’s best interests to make the orders sought. I agreed to grant the orders sought as being in YZ’s best interests and an order was drafted by Ms Roper and approved by myself.

That is my judgment.

Having made the orders sought, I invited Ms Roper to make arrangements for the court to be informed of the outcome in respect of YZ. This morning, the solicitor for the Trust informed the court that following the granting of orders, YZ initially attempted to leave the ward. She was however, persuaded to return and was escorted back onto the ward by a male and a female security guard. Thereafter, in the treatment room, YZ had a blood sample taken by a female nurse without the need for restraint, other than the nurse holding her hand in order to obtain the sample. YZ did not resist and also allowed a cannula to be placed in situ for any additional treatment required consequent upon the blood test results. However, further treatment was not warranted in circumstances where the blood test revealed no paracetamol in YZ’s system.