Royal Courts of Justice
Strand
London
WC2A 2LL
BEFORE:
MR JUSTICE McKENDRICK
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BETWEEN:
LEEDS TEACHING HOSPITALS NHS TRUST
Applicant
- and -
LH
Respondent
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MR HADDEN appeared on behalf of the Applicant
The Respondent did not appear and was not represented
MR NIVEN-PHILLIPS appeared on behalf of Cafcass
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APPROVED JUDGMENT
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MR JUSTICE McKENDRICK: The application before the court is one brought by Leeds Teaching Hospitals NHS Trust in respect of a child, who I shall refer to as LH to protect his confidential and private information and that of his family. He is 10 years old. He has not yet been joined as a party and therefore he does not have the benefit of Cafcass acting as his guardian. Nonetheless, I am extremely grateful to Cafcass and Mr Niven- Phillips who is present in court today. He is effectively here on the basis that LH may well be joined, Cafcass would accept the invitation to act and they would wish, I am told, to seek an adjournment of the application today. That is for the understandable concern that Cafcass must carry out their inquiries and, if they deem it necessary, meet with the child, speak with family members and others.
There are, as I understand the application, no other respondents to Leeds Teaching Hospitals' application. LH has both a mother and a father. As I said, they are not respondents and I have not read anything directly from them. The application is in respect of serious medical treatment and the relief sought is a declaration that it is lawful and in the best interest of LH to be conveyed to Leeds General Infirmary to receive chemotherapy, and to remain in hospital for up to 22 weeks to complete the full course of treatment, and to authorise the deprivation of LH’s liberty as a consequence of the conveyance plan and during his admission to hospital.
The matter is very urgent and the hospital seek the conveyance to take place as soon as possible, tomorrow the 21 August 2025. The reason for this treatment, and the relief being sought, is because unfortunately LH, at only age 10, has been diagnosed with a rare type of cancer. It is not necessary to name this cancer in this judgment.
The Trust's clinical team consider that the cancer is localised to a single site and that a patient with this type of cancer has a good chance of long-term survival if treated. My understanding of the evidence put before me is that there is around a 70 per cent chance of survival at five years post-diagnosis if treated. The evidence that has been provided is that without the treatment LH would, I quote, "Have an extremely low chance of long-term survival".
The clinicians who have met with LH, unsurprisingly given his young age of 10, have assessed him to be lacking in Gillick competence. To date, LH has received three cycles of chemotherapy. He needs a total of 14 at the hospital. To receive his chemotherapy he needs a central venous catheter and a Hickman line in his chest. The treatment is given in two weekly cycles and some pretty heavy chemicals are given: Vincristine, Doxorubicin and Cyclophosphamide. That is given continuously over 48 hours, and an ifosamide etoposide is given over five days of continuous infusion. LH will require a further 11 cycles of treatment. That will take around 22 weeks.
The evidence is that he was due to start his fourth cycle on 7 August, but he refused to attend hospital. It is an additional difficult feature of this case that LH has a diagnosis of autistic spectrum disorder. He irrationally considers that he no longer has cancer because he cannot feel the lump, and he feels that the treatment is killing him. He is very distrustful of the information that is given to him by professionals.
There have been multiple attempts since 7 August to admit him. On 11 August an ambulance was sent and LH barricaded himself in his bedroom and threw objects at staff.
The paediatric oncology department consider that this delay is just too long and they have to get LH into hospital immediately. They have produced a plan which involves the use of force, if necessary, to bring him to hospital and the requirement that he remains in hospital. Mr Hadden, counsel who appears on behalf of the Trust, tells me that it is likely to be the case that LH would be confined to hospital for the 22-week period. I did query whether he could leave, but I was told that the current view is he would not. I do wonder if that is correct and in due course LH may well become more compliant with the chemotherapy as he understands it. I hope he will be well cared for at Leeds Teaching Hospitals, and it may well be the case that he does not need to be there for the entirety of the period and he may be able to leave and then come back. But it is put today that force would be used to convey him, and he would be there for some 22 weeks.
The evidence is set out in four witness statements. Possibly the most important one is from Dr Jessica Morgan, who is a consultant paediatric oncologist. She has been in this role for some 16 months. She is LH’s lead consultant along with Dr Simone Wilkins, and she effectively sets out what I have said. At paragraph 5, she says:
"[This type of cancer] has a good chance of long-term five-year survival if treated with a standard of care treatment, 67 per cent EFS, 82 per cent OS at three years. Without that treatment, LH has an extremely low chance of long-term survival."
She then sets out he has had 3 out of 14 treatments. She sets out in her evidence the attempts to get LH into hospital without success. She tells me that in the current part of the country we are concerned with, paediatric chemotherapy is only delivered at the hospital that I am concerned with. It cannot be provided elsewhere. She tells me that there are alternative forms of chemotherapy that could be used, but the best evidence-based and survival rates of the form of chemotherapy proposed above all reasonable alternative first-line treatment options for this type of cancer would be inpatient chemotherapy and would carry similar side effect profiles to the standard of care described above.
It is proposed he stays there for the 22-week period, but she does rightly say, as I have already observed, that would be kept under review and would depend on his presentation. Importantly, her evidence says this:
"If LH does not have further chemotherapy, then it is very likely that he will die from his untreated cancer. The longer his next cycle of chemotherapy is delayed for, the greater the risk of his cancer growing and/or spreading. It is not possible to put percentages of the increased risk of time on any delay because there is not an evidence base for significant delays in treatment to refer to. But having discussed with colleagues, we have agreed that 7 to 10 days is what we consider to be the higher side of reasonable delay. It is therefore important that he attends hospital and continues treatment as soon as possible."
She then sets out various options that have been considered and ruled out as not being in LH’s best interests. She then sets out a best interest analysis, which is however distressing physical restraint may be, the requirement to get LH into hospital is necessary and has to take place as soon as possible. LH would be offered sedative medication to make the transfer less scary, and it is considered that convert use is not helpful for LH and that restraint would have to be used. It is acknowledged that whilst in hospital, restraint or sedation may be required to facilitate the delivery of the treatment pathway. Dr Morgan rightly concludes that the professionals considered the high likelihood of death if LH does not receive the chemotherapy.
Helpfully, Dr Barrett, who is a consultant child and adolescent psychiatrist, has also provided a witness statement. He notes that LH requires treatment at hospital and that cannot be provided at home. He effectively summarises Dr Morgan's oncology evidence. He then sets out that the process of encouraging LH, as you would expect, encouragement and guiding him. He explains why covert medication is not a good idea, but ultimately reasonable force and restraint would have to be considered. Mechanical restraint may be needed, including Velcro bands that could then be lifted into the vehicle. I should add, which I have not otherwise mentioned to date, that LH is quite a heavy young man, weighing around 80 kilos. So a number of staff may have to be involved. He sets out his best interest analysis that he needs the chemotherapy treatment, and he needs to get to hospital for that to happen. Whilst the restraint is unpleasant, it would only lead to some anxiety and that could be assisted with various anti-anxiety drugs which he sets out.
I then have helpful evidence from Sally Morrison who is a children's cancer outreach nurse specialist, and her evidence helpfully summarises the efforts that have been made to get him into hospital. She sets out helpful recommended reasonable adjustments to assist LH to keep them as comfortable as can be the case in hospital.
There are draft care plans, including care and treatment plans, acute admission plans, conveyance plans and treatment plans which have been put before me.
Turning to the law, it is clearly the case that the court can provide consent if the treatment is in the child's best interests, and Mr Hadden's skeleton argument summarises MacDonald J's decision in Manchester University NHS Foundation Trust v Fixsler [2021] EWHC 1426 (Fam) at paragraph 57:
As I have observed in previous cases, the legal framework that the court must apply in cases concerning the provision of medical treatment to children who are not ‘Gillick’ competent is well settled. The following key principles can be drawn from the authorities, in particular In Re J (A Minor)(Wardship: Medical Treatment) [1991] Fam 33, R (Burke) v The General Medical Council [2005] EWCA 1003, An NHS Trust v MB [2006] 2 FLR 319, Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554, Kirklees Council v RE and others [2015] 1 FLR 1316 and Yates and Gard v Great Ormond Street Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410:
The paramount consideration is the best interests of the child. The role of the court when exercising its jurisdiction is to take over the parents’ duty to give or withhold consent 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. Within this context the wise words of Hedley J in Portsmouth NHS Trust v Wyatt and Wyatt, Southampton NHS Trust Intervening [2005] 1 FLR 21 should be recalled:
'This case evokes some of the fundamental principles that undergird our humanity. They are not to be found in Acts of Parliament or decisions of the courts but in the deep recesses of the common psyche of humanity whether they be attributed to humanity being created in the image of God or whether it be simply a self-defining ethic of a generally acknowledged humanism.'
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 emotion or sentiment. There is no requirement for the court to evaluate the reasonableness of the parents’ case before it embarks upon deciding what is in the child’s best interests. In this context, in An NHS Trust v MB Holman J, in a passage endorsed by the Court of Appeal in Re A (A Child) [2016] EWCA 759, said as follows:
'The views and opinions of both the doctors and the parents must be carefully considered. Where, as in this case, the parents spend a great deal of time with their child, their views may have particular value because they know the patient and how he reacts so well; although the court needs to be mindful that the views of any parents may, very understandably, be coloured by their own emotion or sentiment. It is important to stress that the reference is to the views and opinions of the parents. Their own wishes, however understandable in human terms, are wholly irrelevant to consideration of the objective best interests of the child save to the extent in any given case that they may illuminate the quality and value to the child of the child/parent relationship.'
The views of the child must be considered and be given appropriate weight in light of the child’s age and understanding."
The issue, however, which is one which I raised with Mr Hadden at the outset, is why it is necessary for a High Court judge to consent to the treatment under the court's inherent jurisdiction in circumstances where I am clearly told in the evidence LH’s parents both consent and support in full the plan, the conveyance, the treatment, the chemotherapy and the deprivation of liberty, if that is what it is, in hospital. I adjourned the hearing for 30 minutes to allow Mr Hadden to double check, and I was told when I came back, as is set out on the C66 and as set out clearly in Mr Hadden's position statement, both parents consent and support the plan that I am being asked to authorise. That gives rise to whether the clinicians and the nurses and the broader team who will convey LH from home to hospital and treat him with chemotherapy and keep him in hospital and provide him with all ancillary care can lawfully do so on the basis of the consent of LH’s parents operating within the zone of parental responsibility. I have reached the firm view that that is within the zone of parental responsibility. I am sitting as urgent applications judge today. The matter is listed at very short notice for only two hours. I have not heard any detailed argument. I have heard no contrary argument, and I have only Mr Hadden's position statement which is helpful, and Mr Niven-Phillips, did raise with me his initial observation about what was the necessity of a court order.
It is well known that parents can consent to medical treatment, and it is well known that the bundle of rights and responsibilities of parents diminishes as a child gets closer to the age of 18. There is, in the case law, an interesting discussion in respect of when children become Gillick competent to make their own decisions and whether parents continue to be able to exercise parental responsibility if a child is Gillick competent. But none of those interesting issues concern me because I am concerned only with a 10-year-old child who is not Gillick competent, and in respect of whom his parents both consent. The issue which Mr Hadden submits is: can parents consent to the conveyance of a 10-year-old child for life-sustaining chemotherapy which may involve him being deprived of his liberty in hospital for some 22 weeks? It seems to me the answer clearly is yes. If LH does not begin the fourth cycle of his chemotherapy, the evidence is he is likely to die. If he continues with his cycles of chemotherapy to the fourteenth, there is a 70 per cent chance he will be alive in five years. The best interests analysis is entirely clear to my mind.
I have raised with Mr Niven-Phillips and Mr Hadden, is there any case law that would suggest it is out with the zone of parental responsibility for parents to consent to a 10-year-old child receiving life-sustaining chemotherapy which involves the use of force to convey him to hospital and deprive him his liberty for some time, and they both say no. This high watermark to some extent are a number of observations by judges. It is probably useful for me to start by looking at D (A Child) (Deprivation Of Liberty) [2015] EWHC 922 (Fam). That involved a 15 year old child who was confined in a psychiatric hospital and the relevant Trust made an application to Keehan J asking him to authorise the deprivation of liberty because they said that it was outwith the zone of parental responsibility for parents to provide the necessary authority for the long term detention of a child to receive psychiatric treatment in the psychiatric hospital. Keehan J rejected that submission and said it was within the zone of parental responsibility, see paragraph 57:
The decisions which might be said to come within the zone of parental responsibility for a 15 year old who did not suffer from the conditions with which D has been diagnosed will be of a wholly different order from those decisions which have to be taken by parents whose 15 year old son suffers with D's disabilities. Thus a decision to keep such a 15 year old boy under constant supervision and control would undoubtedly be considered an inappropriate exercise of parental responsibility and would probably amount to ill treatment. The decision to keep an autistic 15 year old boy who has erratic, challenging and potentially harmful behaviours under constant supervision and control is a quite different matter; to do otherwise would be neglectful. In such a case I consider the decision to keep this young person under constant supervision and control is the proper exercise of parental responsibility."
There was a follow-on case in respect to the same child which then was heard in the Court of Protection and Keehan J heard that matter and it made its way to the Supreme Court and was reported as Re D (A Child) [2019] UKSC 42, where the Supreme Court considered whether it was in the scope of parental responsibility to consent to living arrangements for a 16 or 17 year old child which would otherwise amount to deprivation of liberty within the meaning of article 5. The Supreme Court by majority three to two determined it was not within the scope of parental responsibility for a parent to consent to living arrangements for a 16 or 17 year old which otherwise amount to deprivation of liberty. In an obiter remark, Lady Hale at paragraph 50 said that logically the conclusion would also apply to any younger child whose liberty was restricted to an extent which was not normal for a child of his age. But that question did not arise in Re D. The other four members of the Supreme Court did not express a view on that issue.
I am also referred by Mr Hadden to a decision of Knowles J in Re Z (A Child: Deprivation of Liberty: Transition Plan) [2022] EWHC 3038 (Fam). This was a case where in which the local authority sought a high court approval to transfer a 14 year old boy with autism from home to his new 52 week a year at school placement. Knowles J set out a comprehensive review of the case law and held:
I accepted the submissions of all the parties that what was contemplated here strained the boundaries of what was permitted by a parent with respect to the exercise of their parental responsibility. There was no immediacy of significant harm in this case as would be recognised by necessity. However, it was anticipated that Z would resist and that the level of restraint or force required to move him safely into the car would be outside that which might be considered reasonable chastisement of a child.
Additionally, acting to effect the transition plan based solely on parental consent, would deprive Z of any independent objective scrutiny of the proportionality of the measures contemplated. That scrutiny was unavailable under any statutory scheme and its absence provided further justification for invoking the inherent jurisdiction in this case."
I note in passing that case involves a 14-year-old child and it does not involve life-sustaining medical treatment. It is, on its facts, entirely different to this case. As Knowles J recognised, there was no immediate requirement for the child to be conveyed from home to his new school placement. I am faced with not a 14-year-old child, but a child who is only 10, who is not Gillick competent, and who must, within a matter of hours, begin stage four of his chemotherapy cycle to ensure he remains on track to be alive with a 70 per cent chance in five years. It does not seem to me that that case adds more to the limits of the zone of parental responsibility in respect of serious medical treatment for young children. If doctors and parents agree, in the vast majority of cases, is the oversight of the court required? On the facts of this case the answer is no.
Next Mr Hadden rightly reminds me of the Mental Health Code of Practice 2015 at paragraph 19.48, which is helpful, although again, it is in a different context.
I am prepared to assume for the purposes of this application that LH does not wish to go to hospital. He is scared and upset, and that is made worse by his ADHD. I accept Velcro and mechanical restraints may well be necessary, and the number of adults may well be required to put him into an ambulance and bring him to hospital, and I am prepared to accept he may have to remain in hospital for around five months. The lawful consent to anyone involved in that process, in my judgement, flows from the consent provided by his parents in the exercise of their parental responsibility following the advice of the clinicians. It would be, in my judgement, a significant interference with the long established common law view of the role of parental responsibility for this court to say that clinicians required to come to court when they were in agreement with the parents to authorise medical treatment which is life-sustaining and urgent, even if it involves some level of restraint. It would be very surprising if one were to take a slightly younger child, for example a five-year-old, who may have a tantrum. Would it also be the case that some form of order would be required?
It may often be the case that coercion, encouragement and ultimately some form of restraint may well be used to encourage young children to go to hospital and remain in hospital for painful, unpleasant, frightening or scary medical procedures. But one has to consider the overall effect, not just in respect of medical treatment but more widely parental responsibility and the responsibility that the common law in Parliament gives to parents is a cornerstone of parenting, and any undermining of that goes against both long-standing common law traditions but also would, it seems to me, undermine important article 8 ECHR right to respect for private land family life, which is prized.
But there are also practical issues as well. If it were the case that life-sustaining treatment for a 10 year old required High Court authorisation and approval, it would place huge burdens on Cafcass to go out, report, meet families and children and come back. It would place huge burdens on the High Court and significantly increase the number of cases brought to this court. It would confuse doctors and make it more likely that life-sustaining and urgent treatments are delayed as clinicians consult lawyers and think about whether they should or should not come to court.
The law is clear that parental responsibility operates to provide doctors with the necessary consent. In my judgment, in the facts of this case, with life-sustaining necessary cancer treatment for a 10 year old, even if some form of restraint is used and some form of deprivation of liberty, if that is what it is, it is well within the zone of LH’s parents to consent to that and all involved in the conveyance, the deprivation of liberty, if that is what it is, and the treatments are operating, as I understand it, lawfully within the consent provided by his parents. Therefore, it is not necessary for there to be a best interest declaration or order under the High Court's inherent jurisdiction in respect of conveyance, treatment or deprivation of liberty. The fact of the long admission to hospital does not change that.
Those are my reasons for permitting the Trust to withdraw their application today and not making any form of best interest order. It will be apparent and clear from what I have said that LH needs this treatment. It is overwhelmingly in his best interests. I encourage him to please engage with his parents and all those who wish to get him to hospital to get him better as soon as possible. I wish his parents and the clinicians good luck in that process, and ultimately I hope the chemotherapy is successful for LH and makes him much better very soon. Thank you.
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