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Case Update: NHS Foundation Trust v Kwame & Ors [2023] EWHC 134 (Fam)

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17/04/2023

NHS Foundation Trust v Kwame & Ors [2023] EWHC 134 (Fam) – Reporting Restrictions

In the High Court of Justice Family Division before Mrs. Justice Morgan

by Narayani Panesar, 24 March 2023

Facts

This case concerns a young man, ‘Kwame’, who is now 16 years of age. Kwame attempted to take his own life at home. He suffered hypoxic cardiac arrest and had no recordable heart rate for at least 28 minutes. Kwame was intubated at the scene and taken to hospital where he was transferred to the Paediatric Intensive Care Unit (PICU), where he has been intubated and ventilated ever since. Kwame is unresponsive and has remained in hospital for the last 20 months. There is clinical evidence to suggest that Kwame has no hope of recovery, or improvement.

The NHS Trust made an application for a declaration that it was not in Kwame’s best interests for life-sustaining treatment, including mechanical ventilation, to be continued and he should be moved to a palliative care pathway.

Kwame’s mother did not oppose the declarations sought by the NHS Trust, though she could not positively agree. Kwame’s father did not agree, and sought to delay the making of the declaration. Kwame’s father wished Kwame could have more time to recover, and suggested that no one can know of any future medical developments which could assist Kwame’s recovery. Kwame’s father, however, would accept a decision made by the Court.

Kwame’s mother has representation by way of Leading Counsel. Kwame’s father did not wish to be involved in the application before the court, and attempts were made to serve him with notice, however, there was lack of certainty that he had received such material. Due to the seriousness and sensitivity of the matter, repeated contact was made with the father both by telephone and WhatsApp on 15th December 2022, 22nd December 2022, and 4th January 2023, where he confirmed he had received the relevant documents. Kwame’s father represented himself as he did not wish to instruct a solicitor or ask for time to find representation. The Judge asked him about this and he agreed that this was the case, but also added that the cost of instructing a solicitor was prohibitive.

The Law

The court relied upon the key principles set by the Court of Appeal in both Portsmouth Hospitals NHS Trust v Wyatt and Anor [2005] EWCA Civ 1181, and by Holman J in An NHS Trust v MB [2006] EWHC 507. These principles are:

i) The Judge must decide what is in the best interests of the child;

ii) In making that decision the welfare of the child is the paramount consideration;

iii) The Judge must look at the question from the assumed point of view of the child;

iv) There is a strong presumption in favour of a course of action that will be likely to preserve life, but that presumption is rebuttable;

v) The term “best interests” encompasses medical, emotional and welfare issues;

vi )The Court must consider the views of doctors and parents;

vii) Each case will turn on its own facts;

viii) The Court must conduct a balancing exercise where all relevant factors are weighed. This is an objective exercise, there is not a ‘one size fits all’ answer.

Further, the leading case on the law relating to applications to withdraw life-sustaining treatment was also relied upon: Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67; [2014] AC 591 Baroness Hale said at paragraph 22:

“Hence 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. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it.” 

 

And from paragraph 39:

“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.” 

Poole J observed in Guys and St Thomas’ Children’s NHS Foundation Trust and Pippa Knight [2021] EWHC 25: “Parents spend a great deal of time with their child, their views may have particular value because they know the patient and how he reacts so well. [Although] the Court needs to be mindful that the views of any parents may, very understandably, be coloured by their own emotions or sentiment”.

Human dignity was also considered. Morgan J considered whether the strong presumption of preservation of life is rebuttable if the pleasures and quality of life are sufficiently small, and the pain and suffering and other burdens are sufficiently great as in Airedale NHS Trust v Bland [1993] ACR 789 at 825; R (Burke) v The General Medical Council [2005] EWCA 1003.

Professional Guidance

The Royal College of Paediatrics and Child Healthcare published the document, “Withholding and Withdrawing Life Saving Treatment in Children” in 1997. In 2015, revised guidance was published under the title, “Making decisions to limit treatment in life-limiting and life-threatening conditions in children: a framework for practice”. Two important points were considered:

1) This document sets out circumstances under which withholding or withdrawing life-sustaining treatment might be ethically permissible—NOT circumstances under which such treatment must certainly be withheld or withdrawn.

2) The document describes situations in which individual children should be spared inappropriate invasive procedures— NOTtypes of children to whom appropriate procedures should be denied:

a) Where life is limited in quantity, and if treatment is unable or unlikely to prolong life significantly, it may not be in the child’s best interests to provide it.

b) These comprise of brain stem death; imminent death; and inevitable death.

The court accepted the unchallenged summary from Dr AA that during Kwame’s prolonged stay in hospital, he showed no sign of improvement in any aspect of his condition. Kwame was profoundly neurologically injured, and his cognitive impairment was severe and irreversible. He would never regain speech, and does not respond to commands, noise or sight.

On 26th May 2021, a first attempt was made to take Kwame off mechanical ventilation, and within ten minutes he had to be placed back on ventilation due to having a ‘very poor, upper airway’. A second attempt was made on 23rd June 2021, and this had a similar outcome, within ten minutes Kwame had to be placed back on mechanical ventilation.

On 9th December 2021 the Clinical Ethics Committee meeting at the NHS Trust discussed Kwame’s case and there was consensus that it was not in Kwame’s best interest to continue intensive care treatment.

The Judgment

Morgan J determined that it was not in Kwame’s best interests for mechanical ventilation to continue. Upon extubation, it was found that Kwame was likely to survive for a very short time, hours or minutes.

It was decided that it was in Kwame’s best interests that there be defined limits on treatments provided to him after withdrawal of mechanical ventilation, with the effect that he will be allowed to die.

For the full judgment, please see: https://www.bailii.org/ew/cases/EWHC/Fam/2023/134.html

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