it is a class presentation on children and decision making

1. Children and Medical
Decision-Making
Ed Horowicz e.horowicz@Liverpool.ac.uk
LAW052
Medical Law and Ethics 2

2. Objectives
• Introduce the syllabus: Child and Adolescent Medical Decision-Making
• Explore the ethical issues in respect of younger children
• Introduce children as rights holders with specific children’s rights
• Understand the law in respect of decision-making for incompetent
children
• Understand the duties and limitations of those with Parental
Responsibility
• Use case studies of withdrawal or withholding of treatment to apply
the law

3. Introducing the Syllabus
• In the first 2 lectures we consider medical decision-making for children and
adolescents.
• Lecture 1 considers who children are, ethical issues, what rights do they have
in respect of medical decision-making, what the role of parents is, the legal
position and how the law addresses disagreements in younger children using.
- We will use the case study of withdrawal/withholding cases to develop
understanding and apply the law.
• Lecture 2 considers adolescents, ethical issues and evolving autonomy, the
legal concept of the competent adolescent, adolescent refusal of treatment,
parental consent and the inherent jurisdiction of the courts.
- We will use the case study of medical interventions for gender diverse
adolescents to develop understanding and apply the law.

4. The Moral Status of Children
What factors influence how we see children in
our society?
What are the ethical issues that relate to
decision-making for children?

5. Autonomy • How autonomous should children be in
relation to their own bodies?
• In society we do not afford the same
right to children as we do adults.
• Should it depend on the level of
potential harm?
• Should it only depend on their capacity
to make an informed decision?
Children and Autonomy

6. Paternalism
‘Paternalism is the interference of a
state or an individual with another
person, against their will, and
defended or motivated by a claim
that the person interfered with will be
better off or protected from harm’
Dworkin (2006)
Weak Paternalism - belief that
overriding the decisions of a person
without capacity in order to benefit
them or prevent them from harming
themselves, is justified.
E.g. Parent preventing a toddler from
picking up a cup of hot coffee.
Strong Paternalism – belief that in some
circumstances, overriding the decision of
a person with capacity in order to benefit
them or prevent them from harming
themselves can be justified.
E.g. 17 year old student who refuses a
blood transfusion because of religious
beliefs (We will come back to this later)

7. UN Convention on the Rights
of the Child CONVENT
In 1989 resolution 44/25 Convention on the Rights of the Child (CRC) was
adopted by the United Nations General Assembly and entered into force in
September 1990.
ION ON THE RIGHTS OF THE CHILD
Overview of the UNCRC
• All UN member states except for the United
States have ratified the Convention.
• Rather than being directly legally enforced, it
is part of international law and approached
through incorporation into domestic law.
Underpinned by 4 Principles:
1. Non-discrimination (Art. 2)
2. Best interest of the child (Art. 3)
3. Right to life survival and development
(Art.6)
4. Right to be heard (Art. 12)
The right to health and health services – Art. 24
The well-being of the child is central to the
Convention.
States are required to abolish traditional
practices prejudicial to the health of children eg.
FGM

8. Professional Bodies
GMC 0–18 years: guidance for all doctors (2018)
‘Acting in the best interests of the child or young person should be the
guiding principle in your decision making.’
‘You should involve children and young people as much as possible in
decisions about their care, even when they are not able to make
decisions on their own.’
‘You must carefully weigh up the harm to the rights of children and
young people of overriding their refusal against the benefits of
treatment, so that decisions can be taken in their best interests.’
BMA Ethics Toolkit: https://www.bma.org.uk/advice/employment/
ethics/children-and-young-people/children-and-young-peoples-ethics-
tool-kit

9. Overview- Children and the Law (Minors)
Children Act 1989
Children are defined in English law as a
person under the age of 18 in section 105(1)
Family Law Reform Act 1969
•Age of majority is 18 (formerly 21), 1(1)

10. The Children Act 1989
• 1(1) Paramountcy Principle
‘ the welfare of the child is the court’s
paramount consideration.’
• 31(9) “harm” means ill-treatment or the
impairment of health or development;
health includes physical and mental
health
• 31(9) “health” means physical or
mental health
The Welfare Checklist s.1(3)
Details the factors that the court must consider
when reaching its decision in cases:
a) the ascertainable wishes and feelings of the
child concerned (considered in the light of his
age and understanding);
b) his physical, emotional and educational needs;
c) the likely effect on him of any change in his
circumstances;
d) his age, sex, background and any
characteristics of his which the court considers
relevant;
e) any harm which he has suffered or is at risk of
suffering;
f) how capable each of his parents, and any other
person in relation to whom the court considers
the question to be relevant, is of meeting his
needs;
g) the range of powers available to the court
under this Act in the proceedings in question.
⾄⾼⽆上

11. Parental Responsibility: Children Act 1989
• 3(1) Parental Responsibility
‘all the rights, duties, powers, responsibilities and authority which by
law a parent of a child has in relation to the child and his property’
• 4(1) Acquisition of Parental Responsibility
‘Where a child’s father and mother were not married to [F1, or civil partners of,] each other at the time of his birth [F2,
the father shall acquire parental responsibility for the child if—
(a)he becomes registered as the child’s father under any of the enactments specified in subsection (1A);
(b)he and the child’s mother make an agreement (a “parental responsibility agreement”) providing for him to have
parental responsibility for the child; or
(c)The court, on his application, orders that he shall have parental responsibility for the child.]’
Non-biological same sex parents can also acquire PR
This is important when we think about who can provide valid consent

12. Inherent Jurisdiction
• Ward LJ in Re A (Conjoined Twins)
‘If a person having a recognisable interest brings
such a dispute to the court, the court must
decide it.
Once the jurisdiction of the court has been
invoked, the responsibility for the decision about
the child’s medical treatment is removed from
his or her parents and the duty rests with the
court to reach an independent decision.’

13. Welfare v Best Interests
• Section 8 of the Children Act 1989 provides that the courts can make a specific
issue order, explained in section 8(1) as:
‘an order giving directions for the purpose of determining a specific question
which has arisen, or which may arise, in connection with any aspect of parental
responsibility for a child.’
• Alongside this is the historic doctrine of Parens Patraie, whereby the Court can
intervene using its inherent jurisdiction, even where the decision is made by a
person with parental responsibility.
• The authority of the courts to intervene can be explained as being that they
have jurisdiction to intervene whenever a child’s welfare is engaged such that
it is possible their best interests may not be met.

14. Parental Consent: Limitations
Generally, it is parents that are expected to make the
decisions regarding their child’s upbringing and it is
assumed that they will make those decisions for the
benefit of the child. The courts are involved when:
• Parents cannot agree about a decision
• Doctors disagree with parents
• Intervention is controversial
What about parental welfare?
‘reflects the reality of medical treatment being one
moment in a past, present, and future relationship of care’
Bridgeman, J. (2017). The provision of healthcare to young and dependent
children: the principles, concepts, and utility of the Children Act 1989.
Medical law review, 25(3), 363-396.
⽗⺟会做决定

15. Parental Disagreement
• Ordinarily consent is valid with the consent of
a person with parental responsibility
BUT
• There are a small group of interventions that
the courts have explained require the consent
of both parents:
- Non-therapeutic male circumcision
- Vaccination

16. When does parental choice become
harmful to a child?
- Consider the case of vaccination
Young children lack the capacity to make autonomous choices
regarding the risks and benefits of vaccination.
Should parents be permitted to refuse to vaccinate their children?
Should the child have a right to be vaccinated, regardless of a
parent’s belief? Does the state have an obligation to the child/
society to ensure children are vaccinated?
What if parents disagree?
Parental disagreement about vaccination:
• Re C (Welfare of the Child: Immunisation) [2003] 2 FLR 1095
• F (Mother) v F (Father) [2013] EWHC 2683

17. Vaccinating children – who gets to decide?
Parents have a duty to act in their children’s best interest; however, they can choose not to vaccinate
their children. Vaccination cannot be forced where both parents are not in agreement. A 2017 article
‘Changing attitudes to childhood immunisation in English parents, stated that in the UK it is estimated
only about 1-2% of parents refuse all vaccines.
Matters become complicated when there is a disagreement between parents over vaccination. In
such cases, either parent can make an application to the court for a Specific Issue Order under the
Children Act 1989. The Court will intervene to decide whether to allow vaccination, based on the
child’s welfare needs.
The Court will take into account the views of the parent who is opposing vaccination but will rely on
scientific evidence. If the scientific evidence is in favour of the child being vaccinated, then the Court
is likely to follow such evidence. However, the facts of every case are different and therefore the
outcome of each case may not be the same.
The issue of vaccination has arisen in cases before the Family Court in the context of both private
law and public law cases.
In the case of Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148; [2003] 2 FLR 1095,
it was held that where parents were in dispute about the immunisation of a child against infectious
disease, neither parent had the right to make the decision alone and immunisation should be carried
out only where a court decided that this was in the best interests of the child.
In the case of Re B (A Child: Immunisation) [2018] EWFC 56, the Court held that vaccination is
properly categorised as an issue of preventative health care rather than medical treatment. The
court, therefore, concluded that it was in the child’s best welfare interests to receive the vaccines that
were recommended for a child of her age.
More recently in the case of M v H (private law vaccination) [2020] EWFC 93, the Court held that it
was in the best interests of both children to be vaccinated in accordance with the NHS vaccination
schedule. The court considered that the respondent mother had not demonstrated there had been a
credible medical development demonstrating to the required standard a significant concern for the
efficacy and/or safety of any of the vaccines presently listed on the NHS vaccination schedule, and/or
a well-evidenced medical contra-indication specific to the children.
It should be noted that in this case, the Court stated that it would be premature to determine any
disputes that may arise regarding the COVID-19 vaccine.

18. F v F [2013] EWHC 2683 (Fam) – read judgment
The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the
wishes of their mother.
This was an application by the father for a declaration and a specific issue order concerning his
daughters both receive the MMR vaccination. This was opposed by their mother.
Background
Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with
their mother, and the father had contact every alternate weekend and half the school holidays. After
publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting
the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older
daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other
daughter completely. After the Lancet retracted the paper, the father became concerned about this
decision and in January this year his solicitors wrote to the mother seeking her agreement to the girls
being vaccinated, failing which it was indicated he would apply to the court. That agreement was not
forthcoming and the father issued this application in April 2013.
Legal framework
The paramount consideration of the court was the welfare of the children. In considering their welfare
the court is guided by the matters set out in the welfare checklist in section 1 (3) of the Children Act
1989.
The issue of the MMR vaccination has come before the court on two occasions before. In Re C
(Welfare of Children: Immunisation) [2003] 2 FLR 1095 the Court of Appeal dismissed the
mother’s appeal against the decision of Sumner J to order her to have her child immunised with the
MMR vaccine. At first instance Sumner J had heard from a number of experts in paediatric
immunology and infectious diseases and he concluded that the benefits of having the vaccinations
outweighed the risks. In the Court of Appeal Thorpe LJ rejected the ‘repeated categorisation of the
course of immunisation as non- essential invasive treatment. It is more correctly categorised as
preventative healthcare. ‘ (para 22). In LCC v A, B, C and D [2011] EWHC 4033 Theis J, the judge
in the instant case, considered the issue of vaccinations in the context of children in care, where
there was a dispute between the local authority and the parents as to whether the children should be
vaccinated. There she concluded the children in that case should be vaccinated. She cited expert in
that case, Dr Ward, who “comprehensively addressed the link between the MMR vaccine and autism
and the consequences of getting these diseases”:
‘a. Measles, mumps and rubella are serious infections, each of which carried an appreciable risk of
dangerous complications in healthy individuals. Vaccination is the only practical way to prevent an
individual from contracting infection, and all the evidence is that it is effective and has a very low level
of side effects, which are generally mild and transient……..
d. With due consideration for established contraindications to vaccination in an individual case, it is
otherwise in every child’s interest to be protected against measles, mumps and rubella with the MMR
vaccine’
The father accepted he could have made this application earlier, i.e. when the Wakefield evidence
was discredited and when the children were younger, but said the Swansea outbreak of measles had
exacerbated the issue for him, and prompted him to take action. Both parties had the opportunity to
adduce expert evidence as to the pros and cons of the vaccine, but they did not take this up. As

19. Theis J pointed out drily, “The reason why it was not taken up is because from the medical
perspective the evidence all points one way.”
The slight twist in this particular story was that one of the daughters is a vegan and part of her
objection was based on the content of the vaccine which includes animal based ingredients such as
gelatine.
Nevertheless, the judge concluded that it was in the best interests of L and M that they receive the
MMR vaccination, and granted a declaration accordingly.
Reasoning behind the decision
The girls had been focussed on the ingredients of the vaccination and had not fully appreciated what
might be the ingredients of the medication that would be administered should they fall ill with any of
the diseases concerned
They were clearly influenced by their mother’s views
Their lack of maturity meant that they could not understand why their father had changed his mind on
this issue
The emotional consequence for the girls of the court making this decision was not a reason for the
court to flinch from deciding the issue.
The objections raised by the girls regarding the ingredients of the vaccine had not been balanced
against the very clear health risk of getting any of the diseases the vaccine prevents.
Theis J acknowledged that this issue was felt deeply by all the parties concerned,
but now the court has made the decision I have every confidence, that despite their differences,
these parents will be able to manage their parental responsibility in such a way that will ensure the
strong and secure relationships that exist between each parent and both children will remain in place.

20. Generally parents are free to bring up their child according to their own beliefs
and values.
Children have a right to their religious and cultural heritage.
What about cases where religious or cultural practice result in some physical
harm to the child?
• FGM
• Ritual Markings
Compare with the law’s approach to non-therapeutic male circumcision
- The practice is generally permitted where parents agree and consent to the
procedure
Toleration from society for NTMC- Sir James Munby in Re B and G [2015]
• Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678
• Re S (Children) (Specific Issue: Circumcision) [2005] 1 FLR 236
• L and B (Children: Specific Issues: Temporary Leave to Remove from the Jurisdiction:
Circumcision) [2016] EWHC 849 (Fam)

21. B and G (Children) (No 3) [2015] EWFC 27
Consideration of threshold and subsequent appropriate orders within public law proceedings
Two children, B aged 3 and G aged 2 at the time proceedings were initiated, were placed in foster
carer following the apparent abandonment of G by the mother in the street in November 2013. They
remained in foster care throughout the proceedings. The parents were of African origin, although the
mother had been born and brought up in Scandinavia. They met in the UK and married in an Islamic
ceremony. They later separated and it was accepted that the relationship had ended.
The President of the Family Division had previously handed down two judgments Re B and G
(Children) [2014] EWFC 43 and Re B and G (No 2) [2015] EWFC 3. The first judgment, addressing
whether G had been subjected to female genital mutilation (FGM), concluded that the local authority
had been unable to establish on the evidence that she had been nor that she was at risk of being
subjected to any form of FGM.
The local authority's threshold document relied on four issues namely the mother's mental health,
domestic violence between the parents, neglect and physical abuse of the children and a lack of
cooperation/engagement by the parents.
The President accepted the evidence of a psychosis practitioner that the mother had a diagnosis of
schizo-affective disorder accompanied by depressive traits and that although the illness was in
remission but was a lifelong condition vulnerable to relapse through stress. Although he accepted
that the mother's mental health had improved, he found that it was not currently under sufficient
control to enable her to look after the children. 不能照顾⼩孩 He concluded that the children required
a decision to be made now and could not await further time to consider whether the mother's
recovery had progressed to a point at which she could resume care of them.
The local authority relied upon the mother's reports to a number of professionals in this country and
her home country of both physical and verbal abuse by the father. At the hearing she denied any
physical abuse although the parents accepted that there had been verbal arguments. The President
concluded that there had been some marital discord greater than that accepted by the parents
including some physical violence which was on the lower end of the scale.
The President further concluded that the children had experienced mild chastisement, experienced
instability as a result of the mother's mental health difficulties and were exposed to incidents of
marital discord between the parents. However, he accepted the guardian's analysis that the children
had received positive parenting and he concluded that none of the above experiences had had any
significant impact on the children and accordingly they could not have been exposed to anything very
serious.
The mother accepted that there had been poor engagement with professionals due to her mental
health. The father accepted that prior the children being placed with foster carers there had been a
failure to engage with the local authority which the President accepted was as a result of failing to
recognise and understand the mother's mental health difficulties as well as a desire to protect his
family due to a fear that the children would be removed. He accepted that there has been a high level
of cooperation since the children were removed due to the father's acceptance of the situation.

22. Accordingly, the President found that threshold had been established, albeit not by a very large
margin. In light of the findings he concluded that the local authority's case that the children should be
adopted could not be approved. Such a plan would not be in their best interests and would be a
wholly disproportionate response to the comparatively little that had been proved against either
parent, not least given the quality of the children's relationship with both parents.
Held
He concluded that the children's best interests required that they be cared for by the father under the
auspices of supervision orders and section 8 orders, rejecting the guardian's position that care orders
were necessary. The local authority's secondary position had been that the children be cared for by
the father and that there was no necessity for care orders. The President stated that there was no
adequate justification to impose on the local authority an order more stringent than it proposed.
Further, he was satisfied that the father was trustworthy and could be relied upon.

23. Re J (Specific Issue Orders: Child's Religious Upbringing and Circumcision)
The 5-year-old boy was being brought up by his ‘non-practising Christian' mother with whom he lived
and his ‘non-practising Muslim' father with whom he had staying contact. The boy therefore had a
mixed heritage and an essentially secular lifestyle with no settled religious faith. In the High Court
Wall J refused the father's applications for specific issue orders under s 8 of the Children Act 1989
that the boy be brought up in the Muslim religion and that he be circumcised . In summary, his
Lordship found that circumcision would be more the exception than the rule in the circles in which the
boy was likely to move; that he was not going to be brought up as a Muslim; that he was in the
middle of a hostile contact battle between the parents; and that it is a strong thing to impose a
medically unnecessary procedure on a residential parent opposed to it.
The father appealed on the basis that the judge had confused the child's religion with the child's
religious upbringing - that the child was born a Muslim and his religion was not terminated by the
separation of his parents.
Held
Dismissing the appeal - s 1(7) of the Children Act 1989 does not enable a parent to arrange
circumcision without the consent of the other. As circumcision is irreversible and of considerable
consequence it must join the exceptional categories where disagreement between holders of
parental responsibility must be submitted to the court for determination.

24. Re S (Specific Issue Order: Religon: Circumcision) [2005] 1 FLR 236
Facts
During the marriage, by agreement between the Muslim mother and the Hindu father, the children
had been brought up as Hindus, with Islamic influences. Neither parent was a strict adherent to his or
her faith, although both had been raised in strict religious environments. The relationship between
the mother and father had been concealed from the mother’s family and religious community for 5
years before the couple married in a registry office and the mother’s family was informed. The
marriage was also celebrated at a low-key Hindu ceremony of blessing in the father’s home. The
mother’s family concealed her marriage to a Hindu within their religious community and she was,
therefore, able to continue with occasional attendance at the mosque.
After the birth of the children, the mother asked the father to convert to Islam, which he was not
prepared to do. Instead, with assistance from the mother’s family, the father underwent a Muslim
ceremony of marriage in which he held himself out, falsely, as a Muslim. After the separation of the
mother and father, the mother applied to the court for permission for both children to become
practising members of the Islamic faith, and for her son to be circumcised.
The father opposed the application. Hinduism permitted continuing contact with Islam but forbade
circumcision, while the Islamic faith forbade contact with Hinduism and required circumcision. The
mother was now living with her family once again, and attending the mosque regularly with the
children. She was concerned that if the children were not raised as Muslims, she, and possibly her
entire family, would be expelled from the religious community. The father was concerned that if the
children were raised as Muslims, he would lose all contact with them, and they would lose their
freedom of choice.
Held
Held – rejecting the mother’s application for a specific issue order –
(1) In this case the issue of the children’s religion stemmed, in reality, not directly from the children’s
needs, but from the mother’s need to portray herself as married to a Muslim, rather than a Hindu.
The court should not sanction such a deception, particularly when the children knew the truth. The
mother would be able to lead a wholly satisfactory life without the order, as the evidence showed that
the mother’s family would not reject her and there was no evidence that her religious group would do
so (see para [83 ](d)(e)).
(2) The children were too old now to seek to favour one of their religions of origin over the other. Both
the mother and father had a religious duty to bring the children up in their own religion, and during
the marriage there had been an agreement, put into practice, that they would have the best of both
worlds. This was best for the children, but this situation could not continue if the children became fully
practising Muslims. The children of a mixed heritage should be allowed to decide for themselves
which, if any, religion they wished to follow (see para [83 ](f)-(j), (m)).
(3) Circumcision was not in the son’s best interests at present, because it would limit his freedom of
choice. The Muslim religion permitted circumcision later, at a time when the son would be old enough
to make an informed decision (see para [83 ](k)).

25. L and B (Children: Specific Issues: Temporary Leave to Remove from the Jurisdiction:
Circumcision) [2016] EWHC 849 (Fam)
Applications by father concerning the amount of time the parties' two children should spend with each
parent; whether the father should be permitted to take the children to visit his family in Algeria (a non-
Hague Convention country); and whether it was in the children's best interests to be circumcised in
accordance with the father's Muslim beliefs.
This is a decision of Mrs Justice Roberts dealing with the following three issues:
(1) orders determining the amount of time which the children, L and B, should spend with each
parent;
(2) whether or not the father should be permitted to remove the children from the jurisdiction of
England and Wales for the general purposes of foreign travel, and specifically to visit his family in the
People's Democratic Republic of Algeria (Algeria) which is a non-Hague Convention country; and
(3) whether it is in the children's best interests to allow them to be circumcised in accordance with the
father's Muslim practice and religious beliefs in circumstances where the mother an age where they
are competent to give consent to such a procedure.
Brief facts
The children's father ('F') was born in Algeria and now has dual Algerian and British nationality. He is
a devout Muslim and, despite what he acknowledges to be lapses in his religious observance in the
past, is committed to the principle of ensuring that, as part of their dual heritage, his two sons grow
up as Muslims observing all the tenets and practices of that religion. F has close ties with his family
who live in other foreign countries, including Algeria, the UAE and France.
The Children's mother ('M') grew up in Devon before qualifying professionally at which point she
moved to London. She does not now observe the Muslim faith.
The parents never legally married, although they went through an Islamic marriage ceremony in
2009. There were significant problems in the marriage (including domestic violence and threatened
abduction), such that in 2012 M issued wardship proceedings and a raft of protective orders were
granted.
A finding of fact hearing took place in January 2013. The agreed findings reflect an escalating pattern
of threatening behaviour, verbal harassment and outbursts of violent temper on the part of the father,
including, at times, in the presence of the children. A further eighteen findings of fact which F had not
admitted or agreed were made. Those that have relevance for the purposes of these proceedings
are set out at paragraph 13. The finding include threats to abduct the children to Algeria and the
presence of a risk of abduction that cannot be ignored. The judge found that M's fear that F will
abduct the children had a 'real basis' and was not a 'fanciful fear.'
Initially contact was supervised. F then underwent a psychiatric assessment and a section 7 report
was prepared. What followed was a gradual increase in contact to unsupervised arrangements each
alternate weekend.
In July 2014 F raised the issue of circumcision for the first time and formal applications for specific
issue orders followed.

26. After analysing the evidence and arguments for and against circumcision (para 128-141), Mrs Justice
Roberts concluded that it was a 'finely balanced decision' but one in respect of which the court had
reached a clear conclusion.
Thus:
"First and foremost, this is a once and for all, irreversible procedure. There is no guarantee that
these boys will wish to continue to observe the Muslim faith with the devotion demonstrated by their
father although that may very well be their choice.
They are still very young and there is no way of anticipating at this stage how the different influences
in their respective parental homes will shape and guide their development over the coming years.
There are risks, albeit small, associated with the surgery regardless of the expertise with which the
operation is performed. There must be clear benefits which outweigh these risks which point towards
circumcision at this point in time being in their best interests before I can sanction it as an appropriate
course at this stage of their young lives."
F's application for the children to be circumcised was dismissed. A declaratory recital was set out in
the order stating that in in Her Ladyship's view it is not in the children's best interests to undergo the
procedure at this point in time and, in any event, until they are competent in terms of their age and
maturity to make the decision for themselves.

27. Disagreement: Parents and Doctors
There are cases where a child lacks the capacity to make decisions for
themselves and those with responsibility for their care disagree about what
is in the best interests of the child.
Francis J in Great Ormond Street Hospital NHS Trust v Yates and Gard [2017]
‘Some people may ask why the court has any function in this process, why
can the parents not just make the decision for themselves? The answer is
that, although the parents have parental responsibility, overriding control is
by law vested in the court exercising its independent and objective
judgment in the child’s best interests.’

28. Disagreement: Parents and Doctors
How do the courts approach best interests in these cases?
Holman J, in An NHS Trust v MB [2006]
‘best interests are used in the widest sense and include every kind of
consideration capable of impacting on the decision.’
There is no guidance or checklist for best interests, unlike like welfare in CA
Auckland, C, and I Goold. 2019. “Parental Rights, Best Interests and Significant Harms: Who Should Have the Final Say over a Child's
Medical Care?” The Cambridge Law Journal 78 (2): 287–323.

29. Case Law
Re B (A Minor)(Wardship: Medical Treatment) [1981] 1
W.L.R. 1421
Parents of an infant with Down’s Syndrome refused
consent to treatment for a life-threatening intestinal
obstruction. With the treatment the child could be
expected to live 20-30 years. The court ordered the
operation to go ahead as it was in the best interests of the
child.
This can be compared with………
Re T (Wardship: Medical Treatment) [1997] 1 FLR 502
The court upheld the mother’s refusal of consent to a life-
saving liver transplant for her 2 ½ year old son, despite
strong medical evidence in favour of the treatment. The
facts of the case were unusual and the child had already
undergone unsuccessful treatment that had caused pain
and distress. The decision is criticised for placing too much
weight on the mother’s views.

30. Re A (Children) (Conjoined Twins: Surgical
Separation) [2001] Fam 147
Mary and Jodie were conjoined twins. Mary depended on Jodie for survival. If they
were not separated, it was likely that Jodie’s heart would fail within a few months and
both twins would die. If they were separated, Mary would die instantly but Jodie
would be likely to survive and enjoy a normal life expectancy.
Doctors wanted to operate to save Jodie but the parents refused consent. Their
refusal was based on both religious and practical grounds. They were devout Catholics
and believed in the sanctity of life. There was also a risk that Jodie would suffer
medical complications that would require care not available in their home country.
The Court granted a declaration that the surgery to separate them was in their best
interests and would be lawful.
Jodie (real name Gracie) survived and is alive and well.

31. Re A: How Did the Courts Approach the
Decision?
• Johnson J regarded surgery as an omission that would withdraw
Mary’s blood supply from Jodie.
• Court of Appeal rejected this as surgery was an action but all
three judges agreed with outcome:
• Ward LJ invoked the concept of self-defence suggesting that:
‘If Jodie could speak she would surely protest, Stop it, Mary, you're
killing me.’
• Brooke LJ relied upon necessity as a defence.
• Walker LJ focused upon bodily integrity and held that even
though death would occur for Mary, she would die with bodily
integrity. Furthermore, justified the defence through the doctrine
of double effect.

32. Case Study: Withdrawal/Withholding Treatment
In recent years several high profile parental/doctor disagreements have
been heard by the courts, with significant media and public interest.

33. Approaching Best Interests
• Hedley J in Portsmouth Hospitals NHS Trust v Wyatt [2005] 1
FLR 21 explained why there is no specific way to define best
interests:
‘the infinite variety of the human condition never ceases to
surprise and it is that fact that defeats any attempt to be more
precise in a definition of best interests.’
• In seeking greater clarity Baker J, in Portsmouth City Council v
King [2014] EWHC 2964 (Fam), recognised the challenges in
the holistic approach to determining a child’s best interests
and put forward an approach that focussed on harm.

34. The Harm Principle
FOR
• That another authority should intervene
where a child is at risk of harm, thus
promoting the welfare of the child
• Harm is defined in CA 1989
• The problem is where the line is between
parents’ best interests and the child’s?
• Difficult to consider young child in a wider
sense
McDougall, R.J., 2016. Indeterminacy and the normative
basis of the harm threshold for overriding parental
decisions: a response to Birchley. Journal of Medical
Ethics, 42(2), pp.119-120.
Against
• The issue is what is the threshold?
- If a child will not experience harm in further
treatments is there some benefit? - What
about research?
- ‘In the absence of a public, ranked index of
harms and/or interests that express these
factors, the decisions reached by both the
harm threshold and the best interests test
are essentially dependent on the values of
the user’
- See: Birchley G. Harm is all you need? Best interests
and disputes about parental decision-making. Journal
of Medical Ethics. 2016 Feb 1;42(2):111-5.
A

35. Best Interests Prevails
Yates and Gard v Great Ormond Street
Hospital for Children NHS Foundation
Trust [2017] EWCA Civ 410.
• McFarland LJ held that:
‘Best interests” is the established
yardstick which applies to all cases
and there is no justification for this
court now to endorse the creation
of a sub-set of cases based upon
establishing significant harm.’

36. Royal College of Paediatrics and Child Health
• In 2015, the Royal College of Paediatrics and Child Health (RCPCH)
revised the already published framework for practice, indicating
where withholding or withdrawal can be considered ethically
justifiable.
• 3 circumstances that apply to paediatric care:
- Life limited in quantity,
- Life limited in quality
- Informed competent refusal of treatment
• When the decision to withdraw or not provide such treatments is
made, this will almost always be based on its futility rather than the
intention that the withdrawal will bring death to the child
⽆⽤

37. Key Focus: Futility of Treatment
• Where disagreement with parents and doctors over the
provision of life sustaining treatment exists, the term
futility has become the focus
Lantos, J., 2018. Intractable Disagreements About Futility. Perspectives in biology and medicine, 60(3),
pp.390-399.
• Futility should be determined in respect of the
treatment or intervention goal
Shah, S.K., Rosenberg, A.R. and Diekema, D.S., 2017. Charlie Gard and the Limits of Best
Interests. JAMA pediatrics, 171(10), pp.937-938.

38. Defining Futility
• ‘The focus is on whether it is in the patient’s best interests to
give the treatment rather than whether it is in his best interests
to withhold or withdraw it. If the treatment is not in his best
interests, the court will not be able to give its consent on his
behalf and it will follow that it will be lawful to withhold or
withdraw it. Indeed, it will follow that it will not be lawful to
give it.’
Baroness Hale
Aintree University Hospitals NHS Foundation Trust (Respondent) v James (AP)
(Appellant) [2013] UKSC 67
Parental decision-making in these cases carries a considerable risk
of causing harm to the child if futility is not accepted, and for this
reason the decision must be challenged by the court.
Wilkinson D and Savulescu J (2017) Hard lessons: learning from the Charlie Gard case. Journal of
Medical Ethics 44: 438-442.

39. Alder Hey Children’s NHS Foundation Trust v
Evans [2018] EWHC 308
Facts
• Alfie was born and discharged as a
healthy baby
• Developmental assessment caused
concern in the first few months and at 6
months he was diagnosed with a
neurodegenerative condition that was
irreversible
• Doctors argued that further treatment
or intervention was futile and inhumane
• Parents wanted Alfie moved to a
hospital in Rome

40. Decision
• Hayden J held:
‘As the authorities to which I have already made reference underline again and again,the
sole principle is that the best interests of the child must prevail and that must apply even
to cases where parents, for the best of motives, hold on to some alternative view.’
Citing James v Aintree as the authority for determining best interests:
‘The most that can be said, therefore, is that in considering the best interests of
this particular patient at this particular time, decision-makers must look at his welfare
in the widest sense, not just medical but social and psychological; they must consider
the nature of the medical treatment in question, what it involves and its prospects of
success; they must consider what the outcome of that treatment for the patient is likely
to be; they must try and put themselves in the place of the individual patient and ask
what his attitude towards the treatment is or would be likely to be; and they must
consult others who are looking after him or are interested in his welfare, in particular
for their view of what his attitude would be.’

41. Summary
• Health decision-making for younger incompetent children (those
who lack capacity) is generally made by a parents
• Children are rights holders under the UNCRC, incorporated within
the Children Act 1989.
• Children Act holds the paramountcy principle and the UNCRC sets
out that decisions must be in a child’s best interests.
• Inherent jurisdiction of the courts to grant a specific issue order
• Some interventions require consent from all those with PR
• Best interests approach is set out and explained in Evans

42. Questions?