Re Wyatt (A Child) (Medical Treatment: Parent's Consent)
 
 Hedley J. [2004] E.W.H.C. 2247; [2005] All E.R.(D) 294: [2005] E.W.H.C. 693 (Fam.)

Charlotte Wyatt was born in October 2003, weighing about 1lb. She needed to be ventilated for most of her first three months of life. Her tiny body had been beset by infection and both her breathing and brain functions had steadily deteriorated. The damage was irreparable. She was believed to be blind and deaf and incapable of voluntary movement. On three occasions now the courts have been asked to adjudicate in disputes between her parents and her doctors about Charlotte's future care.

The medical evidence presented at the first hearing in the autumn of 2004 strongly indicated that Charlotte did experience pain. Her parents and her doctors agreed that she was unlikely to survive much longer. The central point of dispute was whether Charlotte should be artificially ventilated, should she once again stop breathing. The medical team believed that further ventilation was not in the baby's interests. Ventilation would require a tracheotomy and subject Charlotte to pain and distress where there was ‘no chance’ of such intrusive painful treatment restoring Charlotte to any sort of health or prolonging her life significantly. Charlotte's parents disagreed. Devout Christians, they prayed for a miracle. They believed that Charlotte responds to their touch and affection and could live a little longer—perhaps be taken out of the hospital where she had spent her whole life.

In view of the intractable conflict between parents and professionals, the NHS Trust sought a declaration that it was lawful for the responsible paediatricians to decide that Charlotte should not be intubated or ventilated. That declaration was granted by Hedley J. in his judgment of October 2004. This did not, however, prove to be the end of Charlotte's story. On 28 January 2005, her parents were back in court, seeking a stay of the original declarations.1 Their counsel sought to introduce fresh evidence indicating an improvement in Charlotte's condition. Charlotte's parents wanted to ensure that meanwhile doctors would be required to all that was possible to keep their daughter alive. Hedley J. assessed the expert evidence and concluded that Charlotte's development (if any) was minimal. For that reason, he declined to alter his original declarations. A further full hearing took place in March 2005 at which the Wyatts sought to discharge the declarations in view of Charlotte's continued survival, improvements in her respiratory function and her increased responsiveness to external stimuli.2 Following an examination of expert testimony on Charlotte's development, Hedley J. once again affirmed his judgment that future artificial ventilation not advocated by the paediatric team would not be in Charlotte's best interests.

Conflict between parents and paediatricians about whether to continue to treat a very sick child is in no sense new.3 The tragic dilemmas facing the parents of Charlotte Wyatt, Luke Winston-Jones4 and Ayesha Begum5 are novel in part because of the extensive publicity given to the families in the media. The earlier convention of such cases being conducted in camera and alluded to only by pseudonymous initials were waived by the families. In Re Wyatt itself the judge authorised a hearing in open court albeit implementing measures to protect the anonymity of the professionals giving evidence. For some ‘pro-life’ groups, Charlotte Wyatt's fate became a battleground in the defence of sanctity of life. The anger demonstrated by the families of, and supporters of both Charlotte and Luke is disturbing.6 The return to the High Court to revisit Charlotte Wyatt's case is a new phenomenon with implications for the role of the Family Division in adjudicating in disputes about the medical treatment of children.

Charlotte Wyatt's case differs from a number of previous disputes about the fate of sick infants in that the essence of the dispute is not essentially should Charlotte live or die but how and when she should die.7 The transformation of private tragedy to public spectacle was disturbing, but as the judge noted, inevitable:

Any civilised society must have the means by which intractable disputes, whether between the State and the citizen, or between citizens themselves, are to be resolved. That is the purpose of the Courts and the system of civil and family justice in this country. This kind of dispute is to be resolved by a Judge of the Family Division and whilst the judge will be more aware than anyone of his own limitations in deciding as profound an issue as this, a decision there simply has to be. It may well be that an external decision is in the end a better solution than the stark alternatives of medical or parental veto.8 [my emphasis]

The First Judgment (October 2004)

The conflict presented to Hedley J. in the first hearing of Charlotte Wyatt's case was stark. Her parents profoundly believed it was their duty to maintain her life. They hoped for a literal miracle—‘a miracle born of divine intervention’.9 And their perception of both their daughter's prospects of survival and her ability to respond to their presence and their love differed from the judgment of the professionals. For the professionals, Charlotte was an infant unable to respond to stimulation other than pain, largely unaware of her surroundings. She was a child whose severe brain damage was such there was no possibility of significant brain growth. In October 2004, her prospects of mere survival were poor—the most optimistic prognosis for a further year of life being 25 per cent. The realistic figure was said to be 5 per cent. As the judge noted ‘there can never be certainty’.10 Within such uncertainty the decision whether to put the baby through the trauma of risky, distressing surgery became heartrending. The evidence in a sense depicted different babies. The parents described a daughter, a child who was terribly ill but still, in their view, a child whose continued life is worth living. The doctors (in the main) presented a picture of an infant in the ante-room of death for whom prolonging the process of her death could result in nothing but suffering.

Hedley J. drew on prior case-law. He emphasised the presumption in favour of prolonging life but acknowledged that in assessing the best interests of a sick child there is a balancing exercise to be performed. He reminded himself of the words of Taylor L.J. in Re J (A Minor) (Wardship: Medical Treatment),11 asking would ‘the child in question, if capable of exercising sound judgment … consider the life to be intolerable?’ But he expressly declined to utilise ‘intolerability’ as a supplementary test, or a replacement test, for best interests. Thus examining the nature of her current existence and the risks and distress entailed in a tracheotomy, the judge concluded that further aggressive treatment, even if necessary to prolong Charlotte's life, was not in her best interests. In rejecting, however kindly, her parents' views, Hedley J. acknowledged that her parents knew her best. He had to regard their ‘intuitive feelings’ but he reminded himself, ‘they may project those on Charlotte’.12 In essence, reluctantly, Hedley J. endorsed the medical ‘picture’ of Charlotte Wyatt. At each hearing, he emphasised that nothing in the declarations prevented doctors intubating or re-ventilating Charlotte should they alter their professional judgment about her condition.

Decision Making for Sick Infants

Any reading of Re Wyatt can provoke only profound gratitude, not only to be spared the pain of her parents, but also to be spared the onus of sitting in judgment in such a case. Hedley J. meticulously addressed the balancing exercise first essayed so long ago in Re B (A Minor) (Wardship: Medical Treatment).13 But is this exercise truly possible? Even allowing for recent decisions of the Court of Appeal de-Bolamising best interests,14 is best interests ever more than an empty mantra? If society accords genuine respect to parental judgments about the welfare of their child so that substantial reasons are needed to displace their judgment, might intolerability be the better test? Courts should intervene only when the evidence establishes that the parents' wishes militate against the interests of the child. Hedley J. notes that that under the Children Act 198915 intervention is legitimate only if a risk of significant harm attributable to the care of the child can be shown.

On the evidence presented at the first hearing in Re Wyatt it might well be argued that the proposed tracheotomy constituted such harm, given Charlotte's condition and the pain and distress inherent in the procedure. Nonetheless, such a reformulation of the test for intervention gives greater substance to a presumption in favour of parental judgment. Judges would be required to prioritise the picture of the child as daughter rather than the infant as patient. Yet would that be right? Many commentators who excoriated the doctors and the court for overruling Charlotte's parents emphasise the primacy of parents' decisions.16 Parents on occasion refuse life saving treatment which the professionals believe offer a child the prospect of a happy life. In favouring the depiction of the child as daughter, or son, what is the risk that, as Hedley J. notes, that the parents simply project their own feelings on to the child? Charlotte's parents responded to their daughter's plight with passionate commitment to preserving her life. Other parents, alas, when presented with a sick, disabled or dying newborn baby respond with horror or disgust. Judges have on occasion spoken eloquently of the parental bond and maternal instinct.17 Outside the courtroom and the urgency of a particular case, we should reflect on what that bond entails. Put brutally, Charlotte has spent her whole life in the primary care of others not her parents. She has never left hospital. It might be argued that through no fault of theirs, Charlotte's parents were not her principal carers. The voices of the nurses who care for Charlotte day by day are barely heard in the courtroom drama.

The Second Judgment (April 2005)

The evidence presented to the judge in March 2005 suggested that Charlotte now had more good days than bad days. She could be taken out of the oxygen box and seemed to have at least some rudimentary hearing, and even sight. However her development (if any) was said to be minimal. There had been a complete lack of brain growth. Hedley J. acknowledged that Charlotte's condition in March 2005 was substantially less painful than five months earlier. She had survived against the odds. Her oxygen requirements were less. No longer could her continuing life ‘properly have been described as intolerable'.18 So her parents’ demand for re-ventilation if required might seem more ‘reasonable’? The judge, with sadness, disagreed. He accepted the expert evidence that Charlotte was still ill with a respiratory disease likely to be fatal. There had been no brain growth, nor was there likely to be. Charlotte, the judge concluded, would not develop. Her condition prevented her digesting food properly. She was severely undernourished. She was not gaining weight. In short this little girl continued to survive but, the experts agreed, would never grow and flourish. All those caring for her to agreed every reasonable step short of ventilation should be taken to care for the child and enable her to be comfortable and ‘enjoy her life’ as far as she is able. The point of disagreement was narrow.

The professionals caring for Charlotte and the experts testifying on behalf of the Trust doubted that she would survive re-ventilation. Additionally they judged that should she survive, her condition was likely to deteriorate and thus in their view ‘the whole experience of ICU treatment would imperil a peaceful death’.19 That ‘peaceful death’ seems ultimately to be what Hedley J. determined to be in Charlotte Wyatt's best interests. Her parents' views to the contrary again received ‘profound respect’, but professional judgments ultimately swayed the judge.

The ‘minimal’ improvements in Charlotte's condition represented a minor amelioration of the stark medical picture, insufficient to alter Hedley J.'s rulings. Yet they re-enforce the parents' picture of their daughter who responds when Daddy claps his hands. Parents may perceive the courts as depriving them of ‘their’ child in allowing others' judgments of best interests to prevail. The second full hearing of Charlotte Wyatt's tragic case is more disturbing just because Charlotte's condition in the spring of 2005 was less tragic than in the autumn of 2004. Hedley J.'s reflective judgment is open to a number of different interpretations. The lack of neurological development in Charlotte played its part in his conclusion that re-ventilation might have no purpose. Charlotte was terminally ill. Prolonging her dying might be said to be futile. But the costs to Charlotte of re-ventilation seem to weigh heavily on the judge. Whatever his rhetoric, was it still a judgment that Charlotte's death might be made intolerable that still drove Hedley J.'s determination of best interests?

The Role of the Courts

The return to the courts of Charlotte's case raises many questions. The judge is in a sense undertaking in part the role of mediator. Some of what he is asked to do resembles the function more usually accorded to that of hospital or clinical ethics committees. Yet as a mediator he cannot command total confidence because ultimately he decides. Attempts to reconcile the parties must be laudable but will the losing party feel that what they were offered is not much more than kind words? The courts inevitably receive only a limited picture of the context of medical decision-making from both parties. Charlotte Wyatt will be just one of many babies needing specialist care in Portsmouth. The hidden spectre in all such tragic conflicts between parents and professionals is resources. No hint is given in the judgment that either party contemplated the presence of that spectre. Both parties must have done so. Parents will fear that decisions about their baby are driven by economic concerns that by treating their baby (A) resources may be unavailable to treat another baby (B).20 Professionals would be failing in their duty to B if they ignored her fate.

There is no right answer to the dilemma in Re Wyatt. Resolution in the courts may indeed exacerbate a tragedy nature created. But is there any alternative? Professional guidance emphasises the importance of a ‘partnership of care’21 between professionals and parents. Where that partnership fails it may be doubtful how far less formal, authoritative fora than the courts can resolve disagreements. Charlotte's parents, or at least her father, ended up not simply disagreeing with her doctors but in bitter dispute with them. Mr Wyatt accused the hospital of ‘telling lies’.22

One final question may be posed. How was the initial decision to begin intensive treatment of Charlotte taken? Quite apart from the philosophical and legal quagmire of distinguishing between acts and omissions, a decision to withhold treatment from an infant who has lived for 18 months is a much more agonising decision to her parents. The longer the child survives, the more the child appears to have a will to live, the harder it is to accept medical prognoses that there is no long term prospect of any sort of meaningful life. At the time of writing, Charlotte remains alive. The more she proves the experts wrong in terms of the quantity of her life, the harder it will be to persuade her parents that doctors were right in their judgement of its quality.

1

Re Wyatt (A Child) (Medical Treatment: Stay of Order) [2005] All E.R. (D) 294.

2

[2005] E.W.H.C. 693 (Fam.).

3

See R v. Arthur (1981) 12 B.M.L.R. 1; Re B (A Minor) [1981] 1 W.L.R. 1421 C.A. Such was the concern over the legality and ethics of prolonging the life of very sick newborn infants that proposals for legislation on neonaticide were advanced; see M. Brazier, Medicine, Patients and the Law (Penguin 2003) at 341–3. Note also the full and extensive guidance offered by professional bodies: Royal College of Paediatrics and Child Health, Withholding or Withdrawing Life Sustaining Treatment in Children: A Framework for Practice, 2nd edn (May 2004); British Association of Perinatal Medicine, Memorandum: Fetuses and Newborn Infants at the Threshold of Viability: A Framework for Practice (July 2000).

4

Re L (Medical Treatment: Benefit) [2004] E.W.H.C. 2713 (Fam.).

5

See Sunday Times, 17.10.04.

6

See Daily Mail, 13.10.04; The News of the World, 10.10.04.

7

[2004] E.W.H.C. 2247 at para. 1.

8

At para. 4.

9

At para. 14.

10

At para. 11.

11

[1990] 3 All E.R. 930 at 945, C.A.

12

At para. 33.

13

[1981] 1 W.L.R. 1421, C.A.

14

Notably Re A (Medical Treatment: Male Sterilisation) [2000] 1 F.L.R. 549 and Re S (Adult Patient; Sterilisation) [2001] Fam 15, C.A. Even though, strictly speaking, the Bolam principle was not formally anchored to the determination of a minor's best interests, it is suggested that the pervasiveness of the principle had considerable impact in this domain: M. Brazier and J.Miola ‘Bye Bye Bolam: A Medical Litigation Revolution’ (2000) 8 Med. L. Rev. 85.

15

See s. 31(2) of the Children Act 1989.

16

Supra, n. 6.

17

See Re T [1997]1 All E.R. 906 at 917; Glass v. United Kingdom [2004] 1 F.L.R. 1019 (E.C.H.R.).

18

Re Wyatt (No.3) (A Child) (Medical Treatment: Continuation of Order) at para. 8.

19

At para. 15. The judge's insistence that Charlotte be allowed a peaceful death also influenced his determination to refuse to delay any decision about re-ventilation; see paras 19–22.

20

Note that in this case the judge alludes to the difficulty of finding a neonatal unit where Charlotte could be re-ventilated.

21

Royal College of Paediatrics and Child Health (supra, n. 3) at para. 2.3.1.1.

22

At para. 18.