Wyatt, Re [2006] EWHC 319 (Fam)

[2006] EWHC 319 (Fam)

Case No FD04C01788

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Thursday, 23rd February 2006

Before

MR. JUSTICE HEDLEY

Re WYATT

Transcribed by BEVERLEY F. NUNNERY & CO

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J U D G M E N T

[1]This is the fifth judgment that I will have given in the case of Charlotte Wyatt, a little girl born on 21st October 2003, so that she is now 2½. I am giving this judgment at 8 p.m. The position as of last October was that the court rescinded any declarations relating to her treatment. The position then gave a sufficient degree of encouragement to the belief that a possible return home could be made in due course. Indeed, Charlotte has had the opportunity to leave hospital and visit home on one or two occasions.

[2]Since then two very significant factors have supervened. First, unhappy differences have arisen between Mr. and Mrs. Wyatt, which have resulted in the at least temporary separation of the family. One consequence of that has been to make it increasingly difficult to obtain joint decisions, not least because, no doubt, of the difficulties they would have in trying to make decisions together.

[3]Secondly, there has recently been a very significant deterioration in Charlotte's condition. The matter was brought to the court today on the advice of the treating doctor, Dr. 'K'. He had had the opportunity to consult with another paediatrician in his hospital.

[4]Since then CAFCASS have had an opportunity to consult with Dr.'F', who had been retained on their behalf and who indeed was good enough to come at a late hour to the court. Dr. 'G', who had been retained on behalf of the parents, has been in conversation with solicitors for the family and with Mr. Wyatt.

[5]The medical position that I am now about to set out is a position upon which both Dr. 'F' and Dr. 'G' are in agreement with Dr. 'K'. It appears that about a week ago Charlotte developed what was described as an intermittent rasping cough. It seems likely, though it cannot be certain, that she is the victim of a viral infection. She has begun to get worse both by the presence of upper respiratory tract secretions with consequential extra labouring of her breathing and, associated with that, oxygen desaturations.

[6]Dr. 'K' says this about her condition, and I quote:

"I am confident that she is suffering from a viral infection which, because of Charlotte's present condition, is aggressive for her. Another child may well be able to survive such a virus and in the past year Charlotte has shaken off mild infections. However, this is a totally different type of infection and is aggressive. We have checked for RSV, influenza, para-influenza, and adenovirus. These are all from the same family but are aggressive and severe. If the tests had been positive then she would certainly have the virus, but the fact that the tests are negative does not mean for certain that she does not have any of these viruses. There are other types of virus, such as paratyneumo virus, which we are unable to test for but which cause a clinically identical illness. "

So the conclusion is that we are confident that she has an aggressive virus, but are unable to say precisely what the nature of the virus is. If we knew what the virus was it would not necessarily assist since these are all viruses that we cannot treat. There are only very few viruses, such as herpes, where there is any clinical treatment. The only treatment is to allow the natural body defences to work."

[7]Dr. 'K' then goes on to describe the position in which the child now finds herself. She is the recipient of CPAP and it is presently at a level which would be the equivalent of more than 80 per cent oxygen were she in a headbox.

[8]What Dr. 'K' says is this, and I quote again:

"At present we are on a short plateau but that is what we would expect when we put a child on CPAP and her lungs are expanded by the CPAP. It assists the upper airway to work without obstruction and the partial pressure also assists. I cannot tell at this stage whether the short stable period we have is the expected result of CPAP or is any sign of a turnaround in Charlotte's condition. Overall, I feel there is more than a 50 per cent chance that we are still in an overall downward trajectory. I am reasonably confident that we can manage the situation for the next five to six hours with CPAP, but I cannot be certain. However, even if she continues to deteriorate within that time we have the capacity to increase the oxygen flow. However, if she continues to deteriorate and unless she is markedly improving within that time I am fairly confident that over the next 24 to 36 hours will be insufficient to maintain her breathing."

[9]Dr. 'K' makes it clear that he feels that the only intervention that will be left at the end is that of intubation and ventilation and he expresses the opinion forcefully that that will not be in her best interests as essentially it will be futile. He makes it clear that he would not wish to be party to futile treatment that would inflict unnecessary pain on this child, who has already suffered as much as she has.

[10]As I say, all the medical evidence speaks presently with one voice on this subject. The parents' views have been canvassed with a considerable degree of care, given the circumstances in which this has developed, both at the hospital and by those who represent them in these and parallel proceedings.

[11]The court wishes to express its gratitude to all who have gone to great lengths to ensure that the family's voice is clearly heard in this court.

[12]The position is that Mrs. Wyatt still believes that if Charlotte were ventilated she would recover. Her views have been conveyed via her solicitor in the parallel family proceedings. The basis of that belief is no doubt to be found in the history of the case where that is exactly what happened in the summer of 2004 and in the year that followed on from that. Of course, as the medical evidence has repeatedly identified, we are in a very different position now, both in terms of Charlotte's age, her lung capacity, the fact that she is on a downward rather than an upward trend and, as I say, the medical evidence speaks with one voice, that ventilation simply will not achieve the end for which no doubt the parents would wish and indeed that Charlotte would be unlikely to survive such a procedure.

[13]The court's intervention has been sought. It is common ground of course that Charlotte lacks capacity and therefore the court, at the invitation of a party with a proper interest, is entitled to intervene. The test that the court uses is what is in the best interests of Charlotte. That has been set out in public judgments both by me and by the Court of Appeal and it would be wholly futile to repeat them again. I would merely indicate that my approach to the matter will be as identified in my judgment in October 2004. As I indicated then, no sensible view of life is complete without a view of how it ends and the aspiration for a good death is one which is deep within the human psyche. As I indicated then, I can really think of little that would be worse than for a child to be intubated and die in the course of futile treatment or, worse still, in the course of futile treatment while futile legal proceedings were on foot.

[14]The hospital have made it clear that they will continue with CPAP treatment and indeed there is still some capacity for it to be increased. They will of course provide all necessary parallel care. If the child responds to that treatment she will be continue to be provided with all life-saving treatment short of intubation and ventilation. If, in fact, she does not respond then, in the language that Mr. Wyatt, I think, used, it will become a case for TLC supported by a palliative regime.

[15]I am wholly satisfied from my long acquaintance with this case that the circumstances have now arisen where the court should make it clear that in the best interests of Charlotte the medical profession should be free to refrain from intervention by way of intubation and ventilation. I make it clear that this is permissive and not mandatory and, accordingly, at the moment the decision arises to be taken the medical authorities are required to use their best judgment in Charlotte's best interests as to whether they desist. All this court is saying is that a decision to desist would be lawful. As I say, I do that on the basis that CPAP can continue and that the matter can then be dealt with by palliative care.

[16]As I say, I do not want to repeat matters in previous judgments and it seems to me, in the light of all that I have been told, that what I have said is sufficient to deal with this matter in the circumstances in which it has arisen. The court would not, however, want the moment to pass without a proper tribute to the commitment that these parents have shown throughout or indeed to the commitment demonstrated on their behalf by those who represent them, and of course by the medical authorities themselves. No one could read this case without admiration for the care that has been taken here on behalf of Charlotte by both medical and legal teams. If there was one thing one might just like to comment on, it is that there is something to be said for a society in which the fate of a severely disabled child, wholly unable to articulate her own position, receives the care and attention from the state and from the authorities authorised by the state that has been given in this case.