JM (A Child), Re [2015] EWHC 2832 (Fam)

"I would be hopeful of a young boy growing into a very able teenager. So far he has not had major organ toxicity and, depending on his engagement and motivation, I would have an expectation that he will be walking, running - Mr. Z has put in his statement not playing football, but I think that he means competitively. I mean, he will be able to kick a ball around. So I would expect, externally, that he will look and feel like most teenagers. He will have a scarred face and there is a worry that there will be asymmetry of his face as he grows older. He will be engaged with my team and the surgical team as he grows up, so he still will be medicalised, because he will be caught up in routine surveillance, which goes on for years; so we check out his lungs and do a clinical assessment every two months for the first year, every three months for the next year, every four months for the next year, every six months after that, and then annually, so he will be engaged in his medical outcome, so that makes him different, perhaps, from some of his peers, but, going back to my general clinics of those who survive, then some people find this whole process, actually, is a constructive outcome rather than a destructive one. Now, there are outliers of that. There are people who are very challenged by their cancer experience, who find it difficult to re-engage with their peers and who have ongoing psychological problems, but I would counter that with - so that may happen with other traumas in other walks of life. The only benefit to J, though, is that he will be in a very medicalised system that would hope to be able to support and manage problems that he brings to our attention. I would be very hopeful, if he survives, that his outlook is reasonable."

"They are very frightened and fearful of what their son will blame them for when he grows up, that they worry that he will be so disfigured that he will blame them for allowing the operation to go ahead. That is one of their stated words. But they have not heard that the prospect of him growing up is completely remote, completely impossible, if they do not have surgery. …It is not that I have not tried to say that, and I have been very explicit, but there is a difference between hearing the words and processing the words. …That is one of their issues. I think that they have struggled with the consent process."

"AND UPON the court expressing its real concern that Mr and Mrs M have not attended the hearing of this application, that the court wishes the consideration of the application to be a collaborative exercise. AND UPON the court making clear that it is most anxious to hear the views of Mr and Mrs M"

"AND UPON the applicant’s clinical team emphasising to the court and the parties the proposed treatment to remove the third respondent’s craniofacial bone sarcoma requires the support and co-operation of the first to third respondents and should this support and co-operation not be forthcoming the applicant will require to return to court to seek further relief."

"Section 8 of the Family Law Reform Act 1969 gives minors who have attained the age of 16 a right to consent to surgical, medical or dental treatment. Such consent cannot be overridden by those with parental responsibility for the minor. It can, however, be overridden by the court. This statutory right does not extend to consent to the donation of blood or organs. A minor of any age who is 'Gillick-competent' in the context of particular treatments has a right to consent to that treatment which again cannot be overridden by those with parental responsibility, but can be overridden by the court. Unlike the statutory right this common law right extends to the donation of blood or organs. No minor of whatever age has power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor and a fortiori a consent by the court. Nevertheless, such a refusal is a very important consideration in making clinical judgments and for parents and the court in deciding whether themselves to give consent. Its importance increases with the age and maturity of the minor."

"i. As a dispute has arisen between the treating doctors and the parents, and one …. [party has] asked the court to make a decision, it is the role and duty of the court to do so and to exercise its own independent and objective judgment. ii. The right and power of the court to do so only arises because the patient, in this case because [she] is a child, lacks the capacity to make a decision for [herself]. iii. I am not deciding what decision I might make for myself if I was, hypothetically, in the situation of the patient; nor for a child of my own if in that situation; nor whether the respective decisions of the doctors on the one hand or the parents on the other are reasonable decisions. iv. The matter must be decided by the application of an objective approach or test. v. That test is the best interests of the patient. Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision. These include, non-exhaustively, medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations. vi. It is impossible to weigh such considerations mathematically, but the court must do the best it can to balance all the conflicting considerations in a particular case and see where the final balance of the best interests lies. vii. Considerable weight (Lord Donaldson of Lymington MR referred to "a very strong presumption") must be attached to the prolongation of life because the individual human instinct and desire to survive is strong and must be presumed to be strong in the patient. But it is not absolute, nor necessarily decisive; and may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering or other burdens of living are sufficiently great. viii. These considerations remain well expressed in the words as relatively long ago now as 1991 of Lord Donaldson of Lymington in Re J (A minor) (wardship: medical treatment) [1991] Fam 33 at page 46 where he said: "

"The NHS trust has permission to provide and administer all treatment to J (notwithstanding that his parents do not consent to such treatment on behalf of J) in accordance with the treatment plan supplied to the court and appended to this order, such treatment to include the complete removal of J's tumour (a craniofacial osteosarcoma) bearing area to include the entire right mandible from the midline of his jaw back to the temporomandibular joint, with soft adjoining structure; and to receive treatment to reconstruct the jaw by way of the harvesting from the right leg of a fibula bone to be fashioned and inserted into the remaining jaw space with repair of the facial planes; to include all necessary ancillary treatment to include amongst other treatment and care: anaesthesia; temporary tracheostomy; and PEG feeding."

"I am in complete agreement with the essential premise of the conclusions reached by Johnson J. Such issues are of the utmost gravity and are of particular anxiety since the decision of the court may run counter to the most profound and sincerely held beliefs of the parents. For these reasons the most strenuous efforts should always be made to achieve an inter partes hearing. Such issues should also be determined, wherever possible, by a High Court judge and this is of particular importance in those exceptional circumstances where an application must be made ex parte so that the parents cannot be heard. But in my judgment these prerequisites can be as well met by an application for a specific issue order under s8 as by an application for the exercise of the court's inherent jurisdiction. A s8 application can, and in circumstances such as these undoubtedly should, be made to the High Court. When leave to make it is sought by a local authority, or other appropriate body or person, the district judge, as in this case, can give all necessary directions for a speedy hearing. It will then be heard by a High Court judge. Although there is yet no reported decision as to whether or not a specific issue order can be made ex parte, I should be very surprised if the words of the statute had to be interpreted so narrowly as to deny the court power to give such relief where it was otherwise justified and the circumstances compelled an ex parte hearing. But if such an issue were to come before a judge of the Family Division who was constrained to find the court's jurisdiction to be so limited, the power to invoke the exercise of the inherent jurisdiction of the court would be immediately available and appropriate. In the present case I am in no doubt that the application is well-founded under s8 of the Act. The result which the local authority wishes to achieve, namely, the court's authorisation for the use of blood products, can clearly be achieved by the means of such an order. There is no need for the court otherwise to intervene to safeguard the little girl, so that I am satisfied that it is unnecessary and inappropriate for the court to exercise its inherent jurisdiction."

"Nevertheless, and whilst [the inherent jurisdiction] is still there in reserve in cases where the special legislation to which I will be referring does not apply, in my opinion, where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions by resorting to the earlier procedure, and thus choose to apply a different jurisprudence from that which the Act prescribes."