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16 September 2019

What if I do not consent to medical treatment for my child?

With increasing frequency we see reported cases in the courts where parents dispute medical treatment offered by the NHS. Most commonly these relate to the withdrawal of medical treatment from a child. The most high profile cases of this type recently being Charlie Gard and the ongoing difficulties for Tafida Raqeeb and her family. These cases are harrowing for the parents as much as they are for the medical professionals. What happens, however, if it is the parents that cannot agree on the best medical treatment?

These tricky cases fall within the scope of Children Act 1989 and can be dealt with by the court on an application for a ‘specific issue order’. These decisions can range from schooling to a change to a child’s name and all the way up to consent for serious medical treatment.

A recent case of this nature found itself in the High Court of Justice before Mrs Justice Knowles and judgment was given in August 2019.

The child (known as A), is a little girl of almost seven years of age. She suffers from severe epilepsy which result in her having seizures multiple times almost every night. Her epilepsy is resistant to medication and she endures side effects from the drugs prescribed including irritability, a short attention span, language disorders, behaviour problems and struggles with her bladder and bowel control. Medical investigations confirmed that she is a suitable candidate for brain surgery which has a 50:50 chance of leading to her being completely seizure free. There is a further 20-30% chance of at least an improvement in her seizures even if not complete freedom from them. There is, however, a 10-20% chance that there would be no improvement at all.

The mother, with whom A lives, supports the surgery as the best opportunity for her daughter to live a normal life. She was also conscious the side effects of the medication, restricted diet and ongoing risk of unexplained death as a result of seizures (which is as high as one in 250 each year). The father, who lives in Italy, opposed the surgery on the basis of the risks involved. As well as the overall risks outlined above there is also a 1-2% chance of developing weakness in her left arm and/or leg, 1-2% chance of serious brain infection such as meningitis, 1-2% chance of a brain leak requiring additional surgery and between 1/500 to 1/1000 chance of death. Given the impasse between the parents, the mother applied to the court for guidance.

So how did the court approach the case?

The first hearing was listed for 6 August (only eight days after the mother’s application). The judge considered the evidence and ordered that medical evidence be made available to the father and to the court to enable a decision to be made. A final hearing on the matter was then listed for 9 August (a mere three days later and less than two weeks after the mother’s application was made).

The court is bound by the welfare checklist set out in the Children Act. A link to the checklist can be found here. This confirms:

  • the focus of the court is on the best interests of the child;
  • the welfare of the child is the paramount consideration;
  • when considering medical treatment, the judge must assume the point of view of the patient, ie the child; and
  • the court must conduct a balancing exercise including not just medical welfare but also social and psychological issues.

In this particular case the judge concluded that the positive benefits of the surgery outweighed the negatives. The judge considered all of the elements of the welfare checklist but with particular emphasis on the child’s needs (physical, emotional and educational) and the harm she may suffer now and in the future if she was denied the surgery. The balance sheet exercise concluded that the epilepsy was a heavy burden for A to bear and the inevitable risks of surgery were outweighed by the potential benefits. It was relevant to the judge that the mother and the medical professionals supported the surgery as her only viable treatment option and it was the mother who cared for the child every day with the father not witnessing her day to day suffering.

This matter was so swiftly by the court because this little girl’s surgery was planned for this summer and should now have taken place. With the anonymised reporting of these cases, we can only hope that this went well.

So what should you take away from this case?

Do not delay. Where needed the court can act quickly to deal with a specific issue, such as medical treatment. The court will not make decisions without the necessary evidence but will not shy away from making the difficult decisions. It is written into law that there should not be a delay when considering the best interests of a child but it will be for the court to decide the required timeframe, depending on the urgency of each individual case.

Be objective. The court is not concerned with your view as a parent of the child. Instead it is concern with, and will focus on, the welfare of the child. You must not ignore the factors in the welfare checklist and you must provide the court with information and evidence to satisfy them that their decision accords with these.

Get good legal advice. The father was not legally represented in this case and his arguments against the surgery were rejected. He tried to argue that the mother was a liar and in cohorts with the medical professionals. The father also stated that he would only consent to 100% risk-free surgery. It has to be asked whether he would have run the same arguments if he had received comprehensive legal advice.

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