healthcare update - issue 16
Operation? The roles of the local authority, the court and the hospital in deciding on surgery for a child
A recent case in the Family Division of the High Court
highlights the court’s reluctance to take responsibility for
decisions over life saving medical treatment for a child, and the
importance of involvement of the treating clinicians in any dispute
between a family and local authority.
The case concerned MB, a six year old boy with a rare brain
disease, Rasmussen’s encephalitis. MB suffers severe
neuro-developmental problems, with frequent epileptic seizures. The
condition is progressive and life-threatening.
The local authority had concerns that MB’s medical needs were
not being met by his parents. Expert reports obtained from a
Paediatric Neurologist and Paediatrician highlighted the reluctance
of the family to cooperate with treatment options and assessments.
These views were supported by a report from MB’s hospital treating
team, who recommended that surgery would give MB an 85% chance of
living without seizures. Any alternative therapies would only be
transient and temporary. MB’s parents disagreed. They felt that MB
was still benefitting from medication, and refused to attend
meetings to discuss the proposed surgery.
On 14 December 2009 the local authority issued care proceedings,
not to remove MB from his parents’ care, but to invite the court to
determine whether surgery was in MB’s best interests. The case was
heard by Sir Nicholas Wall, the president of the Family Division.
He made it clear that care proceedings were not the appropriate
forum for such a decision. A decision as to whether surgery was in
MB’s best interests would be an issue between the hospital and the
parents.
The hospital was invited to join the proceedings, or to issue a
summons in respect of the proposed treatment, but declined to do
so. MB’s treating Paediatric Neurologist revised her position,
accepting that whilst surgery remained the optimal treatment,
further drug treatment may still be an option, and this required
further investigation with the parents. The hospital advised the
court that the necessary application would be made if the position
changed.
On 6 July 2010 the local authority sought permission to withdraw
the care proceedings. At the same time an application was made to
ask the court to exercise its inherent jurisdiction, or
alternatively, to make a specific issue order in relation to
whether or not MB should undergo surgery.
The application to withdraw the care proceedings was approved.
However, while Sir Nicholas Wall had sympathy for the local
authority’s position, he determined that the question of whether or
not MB should undergo medical treatment was an issue between his
parents and the hospital. It was not the responsibility of the
court unless the local authority sought a care order, with a
treatment plan for MB’s surgery.
The case illustrates the limits of the court’s role when making
decisions regarding medical treatment in isolation, and emphasises
the importance of involvement of the treating hospital in this
decision making process. The implication is that where there is a
contentious decision on a child’s best interests in having
particular medical treatment, the courts will expect proceedings to
be brought, and paid for, by the treating hospital, at least in
conjunction with any local authority involved. It will not be
possible for the treating clinicians to leave it as a matter for
the local authority to sort out with the family. Hospital trusts
will be well advised to work closely with the family and local
authority, and their lawyers, and to seek legal advice as early as
possible, to manage the process efficiently, and minimise legal
costs.
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