England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE – FAMILY DIVISION
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF HK (SERIOUS MEDICAL TREATMENT) (No.2)

		Courtroom No. 45 High Court of Justice Family Division 1st Mezzanine, Queen's Building Royal Courts of Justice Strand London WC2A 2LL 6.24pm – 6.45pm
		3rd July 2017

MR JUSTICE BAKER:

1. It is now 6.25pm on Monday 3^rd July. I shall now deliver a short further judgment in this case, and I shall order a transcript to be expedited as soon as possible. As I have said, the transcript from Friday night was produced within 48 hours.
2. On Friday, I heard an emergency application in these proceedings under the inherent jurisdiction for orders relating to the medical treatment of H, born 26 March of this year, who was admitted to hospital on 27 May with very severe intracranial injuries. The background of the case included the history of the medical treatment as set out in that judgment, and I do not propose to recite it here.
3. The matter came to court originally because of a dispute as to whether or not the ventilation tubes, via which he is currently breathing, should be removed and not replaced. That issue remains a dispute between the hospital trust and the parents and is listed for a full hearing next Thursday.
4. Last Friday, his condition deteriorated significantly and the trust made an application to court for an order concerning his interim treatment, pending that hearing on Thursday. The order sought was a declaration order that it was in his best interests that the current treatment plan be revised with immediate effect so that it is lawful and in his best interests for: (a) no neurosurgical intervention to be given; (b) in the event of a cardiac arrest, no forms of cardiac resuscitation to be given; (c) there to be no escalation of treatment from that currently provided, i.e. no invasive intervention, included but not restricted to renal replacement and inotropes.
5. In a telephone hearing convened at half past nine and continued to nearly midnight, I heard oral evidence from two of the treating clinicians, Dr Z, consultant neurosurgeon, and Dr D, consultant paediatric intensivist, and also from Mr Peter Richards, consultant neurosurgeon, who has been instructed as an expert witness in the case.
6. After hearing their evidence and the submissions made on behalf of the parties, I made an order making the first and second of the orders sought by the trust but not the third. In other words, I made an order that it was in his best interests for there to be no further neurosurgical intervention and in the event of cardiac arrest no cardiac resuscitation, but at that stage I declined to make any order in respect of his ongoing treatment, because I felt I did not have sufficiently detailed evidence about that issue.
7. I therefore directed that the matter be relisted before me on Monday afternoon at 2.00pm to determine that position and also to give the parents a further opportunity to address the two orders I had made on Friday night. The parents had simply not been able to give full instructions to their legal representatives prior to that hearing and were thus obviously entitled to having an opportunity to be heard further on those issues. The order, as drafted, lasts until about six o'clock today. The parents' representatives reserved the right to challenge the extension of those orders.
8. Thus the matter came back before me this afternoon. A number of ancillary issues have been dealt with during the course of the hearing that need not be referred to further in this judgment.
9. The court has before it further evidence from Dr D, consultant paediatric intensivist, addressing the ongoing treatment plan. He reported that, since the last hearing, there has been a continuing deterioration in H's condition. His haemoglobin levels have continued to drop. He has received a number of further blood transfusions over the last two or three days with consistently falling haemoglobin levels. There remain no clinical signs of bleeding from the gut and it is therefore considered likely that the cause of the bleed is ongoing haemorrhage into his brain and head, and further evidence for this is found in a growing cephalohaematoma, that is to say swelling on the side of his head.
10. Dr D advised that H has only survived the last few days because of the repeated blood transfusions. He advised further that, because it is not possible to treat the underlying cause of the bleeding, providing supportive blood transfusions is 'akin to giving paracetamol to a child with sepsis to bring down their temperature without treating the cause of the sepsis'. He advised that there was, in addition, increasing clinical evidence that H was suffering as a result of the continued interventions, because he was having increasing episodes of dystonia lasting for much longer duration. In those circumstances, and having regard to the lack of any evidence of any possibility of recovery or improvement, he proposed that H should hereafter be given non-invasive care, which he particularised in his further report for the court this afternoon.
11. Having heard initial argument by the parties, I took the view that it was important for Dr D to have an opportunity to give further particulars about these developments. In particular, I was concerned as regards the evidence of pain and ongoing suffering.
12. In his evidence this afternoon, which was given by telephone from the hospital, he explained that again H has become increasingly dystonic, which has the effect of his arms becoming very rigid and then shaking. At that point, his heart rate 'shoots up' to 200 and his blood pressure also rises. Dr D explained that that was evidence the child was suffering from pain. He is unable to demonstrate pain in conventional ways, because he is unconscious, but the dramatic and sudden increase in heart rate and blood pressure is indicative of pain. Were it simply an increase in heart rate with lowering blood pressure, that would indicative possibly of simply fluid loss, but the fact there is the combination of increased heart rate and increased blood pressure is, says Dr D, indicative of the fact this child is suffering from pain. He said it is the tightening up of the muscles that has caused the heart rate and blood pressure to shoot up as a response to the pain.
13. He proposes a treatment plan hereafter, for the next few days until the hearing concerning the extubation, which consists of: (a) continued nutrition and hydration; (b) continued treatment for the brain infection, for which two antibiotics are already being administered; (c) if respiratory symptoms deteriorate, high-frequency ventilation would not be in his best interests, although a course of intravenous antibiotics and other treatments such as physiotherapy would be continued; (d) if he goes into severe sepsis and septic shock with multiple organ failure, blood products will continue to be given without taking any invasive procedures such as a new central-line insertion or starting inotropes or vaso-suppressors; (e) in the event of kidney failure, supportive renal therapy in the form of appropriate fluids and diuretics will be used as required, rather than the insertion of haemofiltration catheters or the commencement of haemofiltration dialysis; finally, (f), palliative care will be provided by the specialist team to ensure he has ongoing access to symptom relief with ongoing care and support.
14. On behalf of the trust, Mr Boyce invites me to make an order declaring that it is in H's best interests for the current treatment plan to be revised so as to include that course of treatment. In that respect, he is supported by the guardian, appearing through Ms Carew.
15. On behalf of the parents, Mr Devereux and Ms Giz acknowledge, as they have to, the very grim medical picture and they accept the strength of the medical evidence before me, but they stress that a best-interests exercise and balancing exercise involves looking at the child as a whole, not simply from a medical perspective. They reiterate the arguments put forward on Friday as to the importance of the preservation of life. They also put forward, as they are entitled and indeed obliged to do, their clients' own personal perspectives about the predicament they and their little baby are in.
16. I referred in my judgment on Friday to the father's heartfelt, very personal and moving words which he had given to his legal representatives and which were duly passed on to me. At that stage, I did not have a direct contribution from the mother, but I have now received a statement from her dated today's date. Attached to it are a number of photographs of H showing what a wonderful little boy he is. No one could fail to be moved by seeing pictures of this beautiful baby, and I can well understand the joy he brought into their lives and the pain they are now suffering.
17. In addition, the mother's statement includes verbatim an email that she sent to her legal representatives on Saturday morning, following receipt of the terms of my order made late the previous evening in which she says this.

'My son is everything for me. He is a part of my body, my joy, my friend, my baby, my only family and my strength. If he dies, all those things will die as well. No-one in this situation can accept it. I know it is the law, but it is painful and difficult. Everyone who has children understands what I am talking about. I am suffering.'

18. I take into account, in making this decision, H's right to life and the importance of preserving that life. I take into account the interests of his parents and the joy H has brought them, and the terrible pain they are now suffering.
19. However, I regret to say that I find the balance manifestly comes down in favour of allowing the hospital to treat him in the way proposed by Dr D. I have been struck in the evidence Dr D has given, by his compassion and humanity, and by the meticulous care he has given to this child. He took the trouble of going to the hospital this evening to examine the child again before he came to give evidence over the phone to me this afternoon.
20. It seems to me manifestly the case that the course which he is proposing is the only one which can possibly be endorsed by this court in the next few days, having regard to the pain and suffering which H is enduring and the clear evidence that his medical condition has no realistic prospects of reverse or recovery. He has given the most careful thought and, if I may say so, done exactly what I asked him to do on Friday: to give very meticulous and precise details of what is now appropriate in the form of non-invasive care.
21. Applying the legal principles which I identified in my judgment on Friday and having regard to all the evidence and all the submissions put forward on behalf of the parents, I therefore make the declaration in the terms of paragraph 9 of Dr D's report, which I quote above.
22. At the outset of this afternoon's hearing, Mr Devereux and Ms Giz indicated that they wished to invite the court to reconsider the declaration that had been made on Friday in paragraphs (a) and (b) referred to above. It seems to me, in the light of the evidence I have heard, it is manifestly right that those orders should continue, and they will continue together with the additional order to which I have just referred until the hearing on Thursday.
23. In addition, as Dr D made clear, although he could see no benefit to the child in the current circumstances of providing ongoing blood transfusions and although he warned that in some cases there are dangers of excessive blood transfusions, he was plain that it was the view of himself and his team that those transfusions should continue until the hearing on the extubation issue on Thursday. It seems to me that that is consistent with the overall framework of the non-invasive care treatment programme that he has put forward this afternoon.
End of Judgment