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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> OT (A Child), Re [2009] EWCA Civ 409 (14 May 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/409.html Cite as: [2009] EWCA Civ 409 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION, PRINCIPAL REGISTRY
MRS JUSTICE PARKER
FD09P00515
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE WILSON
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Mr and Mrs T |
Applicants |
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- and - |
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AN NHS TRUST - and – OT (A Child, by his Guardian ad Litem) |
First Respondent Second Respondent |
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Miss Caroline Harry Thomas QC (instructed by Weightmans LLP) appeared on behalf of the First Respondent.
Miss Catherine Wood (instructed by CAFCASS-LEGAL)appeared on behalf of the Second Respondent, by Ms Vivian, his Guardian ad Litem.
Hearing date: 20 March 2009
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Crown Copyright ©
Lord Justice Wilson:
"The evidence of all the treating doctors and the experts was unanimous. OT's condition is serious and progressive and his decline is inevitable. Future treatment is futile and will only escalate his suffering. The evidence is that OT has minimal consciousness, is mostly asleep but retains awareness of pain. Suctioning causes him extreme discomfort and probably pain. Escalating medical treatment will not give him any benefit."
The judge accepted the opinion of one of the outside experts consulted by the hospital, namely a consultant paediatric neurologist, to the effect that OT was cortically blind in that, although his eyes were unimpaired, his brain could not make sense of what he saw. Notwithstanding challenge on the part of the parents, the judge found that OT's brain damage was irreversible and that a symptom of the death of his brain cells was the absence of growth of his head. She noted the agreed fact that OT was unable to breathe without external assistance and she highlighted the problems attendant upon the need to suction secretions out of his mouth, nose and throat. She accepted that the need for suctioning had become extremely frequent and she rejected the father's evidence that the process was otherwise than profoundly distressing to OT. She accepted the evidence that OT had a very limited link with the outside world; that he was never awake for more than about half an hour; and that, even when awake, his state was little more than one of semi-consciousness. Although the order dated 6 March 2009 would, so it seems to us, have justified it in not intensifying ventilation upon OT's deterioration over the weekend of 14/15 March, the hospital had, no doubt in the light among other things of the ongoing proceedings, chosen to intensify it, albeit it with grave concern that the necessary increase in ventilation pressure was causing him extreme distress and raising a real spectre of damage to his lungs. The judge recognised that, however long OT's life, it could never be sustained otherwise than by artificial ventilation; that such raised the risk of complications, including of further strokes leading to further brain damage; that there was a substantial risk of further infections and, over all, of multiple organ failure. All these likely developments, according to the judge, were likely to lead to a vicious circle in which even more invasive treatment would precipitate even more profound crises.
"There was a balance to be struck between: (a) applying in advance of a crisis when the exact medical evidence may be subject to some revision; and (b) waiting for a time which is nearer the crisis but with all the practical problems of a rushed hearing."
In upholding the hospital's submissions, including that first submission, this court observed that the answer to what it described as "the timing question" had to be fact and case specific. It was our view, as it was that of Parker J, that the Wyatt case, while clearly approving an early approach to the court in some cases, did not carry very far Mr Bowen's argument that the timing of the hospital's application in the present case was unacceptably, and in terms of human rights unlawfully, late.