Wyatt & Anor v Portsmouth Hospital NHS & Anor, Court of Appeal - Civil Division, October 12, 2005, [2005] EWCA Civ 1181,[2005] 1 WLR 3995

Resolution Date:October 12, 2005
Issuing Organization:Civil Division
Actores:Wyatt & Anor v Portsmouth Hospital NHS & Anor
 
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Neutral Citation Number: [2005] EWCA Civ 1181

Case No: B4/2005/0912

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION:

MR JUSTICE HEDLEY

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/10/2005

Before :

LORD JUSTICE LAWS

LORD JUSTICE WALL

and

LORD JUSTICE LLOYD

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Between :

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David Wolfe (instructed by Leigh Day & Co. - Solicitors) for the Appellants

David Lock (instructed by Mills & Reeve - Solicitors) for the 1st Respondent

Huw Lloyd (instructed by CAFCASS Legal) for the 2nd Respondent

Hearing date : 25th August 2005

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Judgment

Lord Justice Wall: :

This is the judgment of the court.

Introduction

  1. This appeal concerns Charlotte Wyatt (Charlotte) who was born on 21 October 2003. The appellants are her parents, Darren and Deborah Wyatt. The first respondent to the appeal is the Portsmouth Hospitals NHS Trust (the Trust). The second respondent is Charlotte herself, represented in the proceedings by her guardian, Teresa Julian, an officer of CAFCASS Legal Services.

  2. Charlotte was born prematurely at 26 weeks gestation and weighing only 458 grammes. She has suffered a long and complex medical history since her birth. An indication of the seriousness of her condition is the fact that she has never left hospital. Apart from one period when in July 2004 when she was acutely ill and was transferred to the intensive care unit at Southampton Hospital, she has throughout her life been cared for in the paediatric unit of a hospital operated by the Trust.

  3. As a small child, Charlotte self-evidently lacks the capacity to make decisions about her medical treatment. In these circumstances, such decisions are, in the first instance, taken by those having parental responsibility for her (her parents) in consultation with, and on the advice of, the doctors treating her. In the event of an important disagreement between doctors and a child's parents, however, either side can invoke the inherent jurisdiction of the Family Division of the High Court relating to children, and a judge of the Division will decide what course of treatment is in the best interests of the child.

  4. That is what has happened here. Unfortunately, there has been a series of disagreements relating to Charlotte's treatment between Mr and Mrs. Wyatt and the doctors looking after her. The fundamental nature of those disagreements and their critical importance for Charlotte led the Trust, on the doctors' behalf, to invoke the High Court court's inherent jurisdiction over children. The consequence was that on 8 October 2004 Hedley J, exercising that jurisdiction, made a number of declarations about what was and what was not in Charlotte's best interests.

  5. We set out the declarations made by the judge in full in paragraph 19 below. In essence, however, the declarations authorised the responsible paediatric medical consultants not to ventilate Charlotte in the event that she suffered an infection which had led or might lead to a collapsed lung, and which proved resistant to anti-biotics. Those declarations were not limited in time, and accordingly governed Charlotte's treatment for the indefinite future. As at 8 October 2004, the prognosis for Charlotte was gloomy in the extreme, and she was not expected to survive the forthcoming winter.

  6. On 21 April 2005, after a further hearing in which Hedley J again heard detailed medical evidence about Charlotte's condition, he refused Mr. and Mrs. Wyatt's application to discharge the declarations. However, he directed that the case should be listed for a review in October 2005 (with a time estimate of half an hour) to consider whether the declarations should be further continued. He refused Mr and Mrs Wyatt permission to appeal against the substance of the declarations, but gave permission to appeal: -

    ``...on the issue as to whether the court should have continued the declarations ..... or whether (the Trust) and / or the court should have waited until making a decision on the matter until there was an immediate medical necessity for the said declarations (sic).''

  7. In this court, Mr and Mrs Wyatt renewed their application for permission to appeal against the substance of the declarations. Their counsel, Mr. David Wolfe, described the question raised by the renewed application for permission to appeal as the ``best interests'' question, He described the question raised by the substantive appeal as the ``timing'' question. We will adopt the same language in this judgment.

  8. We heard argument for a full day on 25 August 2005. At its conclusion we announced our decision. This was: (1) that permission to appeal on the best interests question would be refused; (2) that the appeal on the timing question would be dismissed; but that (3) the review of the continuation of the declarations directed by Hedley J should, if possible, be accelerated. To the latter end, we ordered that, in the absence of Hedley J, there should be a directions appointment before a different judge of the Family Division in September 2005. We reserved the reasons for our decision, which we now give.

    What this case is about, and what it is not about

  9. We think it very important that at the outset of this judgment, we should make clear both what the case is about, and what it is not about. The case is not, and never has been about the withdrawal of treatment from Charlotte in order to allow her to die. It is not about whether or not Charlotte should be subject to a ``do not resuscitate'' (DNR) policy. Nor is it about the level of care provided for her. Charlotte has been profoundly disabled from birth, but she has been kept alive by the devoted care and treatment she has received from the Trust's nursing and medical staff. Without that care and treatment she would undoubtedly now be dead.

  10. During the course of the hearing, we were pleased that Mr. and Mrs Wyatt, through their counsel, were able to give a public and unequivocal acknowledgement of the outstanding care Charlotte has received. That acknowledgement was, in the court's judgment, well made.

  11. What the case is about is what should happen if Charlotte contracts an infection or suffers some other crisis which is likely to lead to her death, but which cannot be treated by drugs and thus requires her to be ventilated if she is to stand any chance of remaining alive.

  12. Amongst her other disabilities, Charlotte suffers from chronic lung disease of prematurity. As described by the consultant paediatrician in charge of Charlotte's care in September 2004, her lungs are severely damaged because she was born prematurely, and in order for her to survive, she had to be placed in an incubator and ventilated immediately after her birth. This required pressurised gas to be blown into the lungs. That, in turn, caused damage to her lung tissue, resulting in scarring. The scarring reduced the ability of the lungs to exchange oxygen and carbon dioxide. The more premature the baby, the longer the period of ventilation required, and the more likely that such a baby will have chronic lung disease.

  13. The medical opinion which Hedley J accepted in October 2004 and April 2005 was that it was not in Charlotte's interests to be ventilated in the circumstances described in paragraph 11 above. The reasons for this view, in essence, were; (1) that the doctors thought the process of ventilation might itself kill Charlotte, and so deprive her of a peaceful death in the arms of her parents; and (2) that even if she survived ventilation (a) the process itself would be painful for her and (b) it would not result in any improvement in her underlying condition. Indeed, it might make it worse. Ventilation, therefore, at best would cause Charlotte additional pain and suffering, and would serve no purpose.

  14. We are entirely satisfied from the documents and from the submissions made to us that the Trust (acting, as it does, on behalf of the doctors and nurses who have devoted so much of their time and expertise to keeping Charlotte alive) did not invoke the court's jurisdiction lightly, but did so because it thought it contrary to Charlotte's best interests to subject her to what it believed (and continues to believe) would be increased suffering for no commensurate benefit.

  15. When the case came back before the judge in March 2005, Mr and Mrs Wyatt's case was that Charlotte in the past few months had not only confounded the doctors by surviving, but that there were some improvements in her condition, notably a reduction in her reliance on an artificial supply of oxygen. They argued, accordingly, that since Charlotte's life was not currently intolerable, ventilation which saved her life and could maintain her current state was in her best interests. The doctors did not agree.

  16. In his April 2005 judgment, Hedley J found that there had been no change in Charlotte's underlying condition, and that she remained a profoundly disabled baby. In particular, her brain had not grown to any significant extent. After a careful examination of all the arguments for and against ventilation, he decided for the second time that ventilation was not in Charlotte's best interests, and he continued the declarations. The question for us is whether or not he was right to do so.

    The history of the proceedings

  17. For reasons which will become apparent, the history of the proceedings is relevant to the timing question, and the case is, furthermore, unusual in that it has been necessary for Hedley J to make a number of different orders relating to Charlotte's treatment.

  18. Proceedings were formally instituted by the Trust on 6 September 2004. On 13 September 2004, Hedley J granted anonymity for all the expert witnesses in the case, and on 16 September 2004, he made...

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