![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Family Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Great Ormond Street Hospital for Children NHS Foundation Trust v ZG & Ors [2025] EWHC 1042 (Fam) (24 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2025/1042.html Cite as: [2025] EWHC 1042 (Fam) |
[New search] [Printable PDF version] [Help]
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
GREAT ORMOND STREET HOSPITAL FOR CHILDREN NHS FOUNDATION TRUST |
Applicant |
|
- and – |
||
ZG |
First Respondent |
|
-and- |
||
KG |
Second Respondent |
|
-and- |
||
MG (by his Guardian, Lauren Doyle) |
Third Respondent |
____________________
Michael Mylonas KC and Naomi Madderson KC (instructed by Pepperells) for the First and Second Respondents
Christopher Osborne (from Cafcass Legal) for the Third Respondent
Hearing dates: 14th and 15th April 2025
____________________
Crown Copyright ©
a. For the Trust: Dr A (a consultant paediatric neurologist) and Dr B (a consultant in paediatric intensive care). Both these doctors work in the Trust and treat MG.
b. For the parents: Professor Stephen Playfor (a paediatric intensive care consultant).
If the doctors are right that MG is totally unaware of his surroundings then it cannot be said that he is suffering, and so how can the burdens of treatment be sufficient to justify the withdrawal of treatment when the treatment is life sustaining?
General Background
The Law
"The approach to be followed by a judge determining an application for an order authorising the withdrawal of life-sustaining treatment of a child is well established in the case law. The "intellectual milestones", as characterised by this Court in Wyatt v Portsmouth Hospital NHS Trust are as stated above:
1) The judge must decide what is in the child's best interests.
2) In making that decision, the child's welfare is the paramount consideration. The term "best interests" encompasses all welfare issues.
3) The judge must look at the question from the child's assumed point of view.
4) There is a strong presumption in favour of the course of action which prolongs life, but that presumption is not irrebuttable.
5) The judge must conduct a balancing exercise in which all the relevant welfare factors are weighed."
"medical treatment or care may be provided for a number of different purposes. It may be provided, for example, as an aid to diagnosis; for the treatment of physical or mental injury or illness; to alleviate pain or distress, or to make the patient's condition more tolerable. Such purposes may include prolonging the patient's life, for example to enable him to survive during diagnosis and treatment. But for my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient's life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition. It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means, which must cause considerable distress to his family — a distress which reflects not only their own feelings but their perception of the situation of their relative who is being kept alive. But in the end, in a case such as the present, it is the futility of the treatment which justifies its termination."
"Whilst its application requires sensitivity and care of the highest order, the law relating to applications to withdraw life sustaining treatment is now clear and well established. It can be summed up with economy by reference to two paragraphs from the speech of Baroness Hale in what is generally regarded as the leading case on the topic, notwithstanding that it related to an adult, against the backdrop of the Mental Capacity Act 2005. In 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.'
The Evidence
a. The improvement which the parents point to in MG's condition in their written statements, is in fact no change in his underlying condition. It is a settling down as would be expected from the catastrophe of the stroke and the pressure on the brain caused by the haemorrhage.
b. The movements of MG that the parents point to are no signs of consciousness or reaction to the world. They are either reflex movements or just occasional movements.
c. He did not think MG was engaging with his environment at all. There was a risk that he had primal sensations, which could be pain or pleasure. It was a worry to him that there might be such primal sensation because MG would be feeling pain. The possibility that the parents might be right that MG had a form of consciousness was a terrifying possibility – because MG would be trapped, in pain, and isolated – but he did not think this was at all likely.
d. He remained entirely confident in his view that there is no realistic prospect of neurological recovery for MG – beyond reasonable doubt was his phrase. MG, he related, is not able to benefit from continued treatment. He will remain unconscious until he dies. Ongoing treatment is futile.
a. Mechanical ventilation by a tube.
b. Chest physiotherapy twice a day, to keep his chest clear. (In a later statement, dated 31 January 2025, the physiotherapist said that MG was receiving physiotherapy once a day, although the frequency varied according to clinical need).
c. Endotracheal suction to clear secretions – this, it was subsequently clarified, was performed every 4 hours by a nurse to remove secretions from MG's lungs, but suction of his mouth and nose was performed by his parents.
d. Mouth care, eye care and nappy changes.
e. Physiotherapy and movement to avoid sores.
f. Monitoring of the EVD.
a. MG has permanently lost the ability to breathe because of the destruction of vital parts of his brain which control his breathing following his stroke.
b. MG does not have any cognitive awareness of the world around him, and on the balance of probability, does not experience pleasure or pain. In oral evidence Professor Playfor was less concerned than Dr A about the possibility that MG might feel pain at a primal level.
c. There is no prospect of MG regaining cognitive awareness of the world around him or the ability to experience pleasure or pain.
5.7 I have assessed the benefits and burdens associated with ongoing mechanical ventilatory support. I do not believe there are any benefits associated with ongoing life. Sadly, MG's brain injury is so severe that he gains no apparent enjoyment from any aspect of ongoing life. Because of the severity of MG's brain injury, there appear to [be] minimal burdens associated with his underlying illness or associated with the treatment he receives. In the future, if ventilatory support is continued, MG will undoubtedly eventually develop burdens associated with his underlying illness. These are primarily due to his relative immobility and lack of spontaneous breathing and include, likely episodes of pneumonia and worsening respiratory failure, bone disease due to osteopaenia (secondary to lack of load-bearing and associated with pathological fractures and the development of renal stones) and scoliosis with associated cardio-respiratory
impairment.
5.8 If mechanical ventilatory support were to be continued, MG's prognosis is difficult to predict: As a result of his neurological injury alone, and the complications that will inevitably develop due to his relative immobility and lack of spontaneous breathing (as described above), MG would suffer an early death but could survive for a period of several years. However, MG's clinical status is more complex given the background of partly treated leukaemia and the presence of an external ventricular drain that has been in-situ for 9 months. Given the risk of leukaemia relapse and the risk of EVD infection, it is my opinion that MG could survive for a period from several months up to a few years if mechanical ventilatory support were to be continued.
The disputed facts
a. I prefer the doctors' evidence to the parents' that MG has no consciousness. I find that the parents are interpreting movements as responses when they are not, they are just movements. I do not like the term but I cannot argue with a description of MG being in a persistent vegetive state, as Mr Mant says. On the balance of probabilities I reject the view that MG has primal pain and can experience primal pleasure. I do not consider that even Dr A puts his fear that there might be such experiences as high as the balance of probabilities.
b. I accept the very firm evidence of all three doctors that there will be no meaningful recovery of MG. I record that Dr A and Dr B were both asked to consider the uncertainty of medical prediction and both did and were confident even in the light of that consideration that given the damage to his brain, in particular the brainstem that there could be no recovery.
c. It will come as a surprise to no one that I am not prepared to make a finding that there will be a miracle. It is the essence of a miracle that it is outside the laws of nature and I am not going to make a decision predicated on something occurring which is beyond the laws of nature. I acknowledge that there is a gap between a miracle occurring and something unexpected occurring. So far as is critical to the decision I am making is concerned, this possibility is subsumed by my finding at (b) above, but in respect to the argument skilfully advanced to me by Mr Mylonas I will deal with the three 'miracles' or unexpected events that he says have already occurred:
i. MG has not succumbed to leukaemia already, as the doctors had expected. I had no oncological expert evidence on this point but the likely explanation, I am told, is that it is extremely rare for a young child to have had their treatment interrupted as MG's was, so the likely recurrence and timing of the recurrence of leukaemia was not something of which the hospital has experience. MG's stroke though unusual is nowhere near as rare and so the prognosis arising from his neurological condition is reliable.
ii. MG, I was told for the parents, had defied all expectation in relation to deterioration and has got better. The apparent improvement I find is no more than stabilisation. The avoidance of deterioration through infections is a consequence of the very high level of care which the collaboration of the hospital and the parents have been able to provide for MG.
iii. The EVD has not become blocked, or become infected. This is agreed to be remarkable and it is again a testament to MG's care.
Taken together and put to the doctors these points did not cause them to change their views as to the outcome for MG and I accept their collective evidence.
The Arguments
a. He is kept alive for longer. I note that there is a strong presumption in favour of preserving life but that like any presumption this presumption can be rebutted. Here, I am told by Mr Mant, that it is rebutted. Being alive, but with no ability to engage with anybody, no conscious sensations, and facing the inevitability of death with no improvement is, I am told, no life worth living. The only answer that Mr Mylonas can give to that is keeping MG living keeps alive the possibility that the medical evidence is wrong, or that there will be a miracle. I cannot accept that argument: I have said I will not take a course relying on a miracle; and I have three experts all in unequivocal agreement that MG will not recover and will die, and I have accepted their evidence. The presumption is therefore rebutted.
b. He continues to be the object of the love of his family. If he were conscious it would be a great thing for him to receive the love of this family. Sadly he is not, and it can be said given he lacks consciousness there is no real benefit to him of this love. Nonetheless looked at from the position of MG, rather than narrowly considering his lack of consciousness, I do think this love should carry weight.
a. The treatment that he has to receive is intrusive. I have detailed above the treatment. This point is resisted by Mr Mylonas on the basis that it cannot be a burden for MG if, as I have found, he is not conscious. In that regard he is supported by Professor Playfor who agreed with him, and his reasoning, in his oral evidence as well as his written evidence. Mr Mant disagrees on the basis that the physical intrusion constitutes a burden simply because it is happening, whether or not MG is aware of it. He must be right – at least to a degree. MG has to breathe by a tube – albeit one pushing in air at low pressure. He has to feed by a tube pushed down his nose into his stomach. He has secretions sucked out of his lungs. He has a 'port' to enable blood tests to be taken. I agree that on my findings these do not cause MG pain but they are nonetheless burdens. I agree they will carry less weight than they otherwise would because they cause no pain. Mr Mylonas took time in closing to show me that in some other cases there are heavier burdens placed on patients. The Guardian makes a similar point in her report. I can see that Mr Mylonas is right. That can only take me to the conclusion that these burdens are less heavy than those that other people have endured. Nonetheless they are burdens for this boy that I must weigh in his balance. I find that they are significant.
b. Further, Mr Osborne points out to me, with acuity, that there is a reference by Professor Playfor in the passage already quoted by me above (paragraph 5.7 of his report) to burdens that are to come as MG deteriorates over time. Professor Playfor said (and I repeat it):
In the future, if ventilatory support is continued, MG will undoubtedly eventually develop burdens associated with his underlying illness. These are primarily due to his relative immobility and lack of spontaneous breathing and include, likely episodes of pneumonia and worsening respiratory failure, bone disease due to osteopaenia (secondary to lack of load-bearing and associated with pathological fractures and the development of renal stones) and scoliosis with associated cardio-respiratory impairment.
This burden of future harm is a burden that I must also weigh into the balance. It is clear to me that burden is likely to be significantly greater than the current burden as MG's health deteriorates before death. I consider that this will weigh heavily in the balance.
c. It is urged on me by Mr Mant that being kept alive with no potential to engage with others is a burden on MG. I understand that it is immensely sad for his parents and the Trust to witness MG unconscious and immobile. It does not stop there; it is immensely sad for me looking at the case through the perspective of MG. Even though it is a burden that he himself cannot perceive, I find that being kept alive with no potential to engage with others is a burden, but I have already accepted force in the same point as discharging the presumption in favour of life, and I ask myself whether to count it again risks double counting. I remind myself that the balance metaphor is just that, a metaphor. Worrying about the same factor pushing up one arm of the balance and down the opposite one is to take the metaphor too far. I must hold this point in mind.
d. It is urged on me by Mr Mant and Mr Osborne that being kept in a Paediatric Intensive Care Unit is a burden. I am reminded not only of alarms and bustle and beeps, but of deaths occurring in the ward. Mr Mylonas, on the other hand, reminds me of the steps taken by the parents to make this bed a piece of the parents' home. There is force in what both say. This is a burden but it is not dreadful to be in such a ward.
"It is with great regret that having carefully considered MG's unique health needs and individual circumstances that I have concluded that it is not in his best interest to receive further life sustaining intervention. He has received the very best of care for over 10 months, but neither acute medical care, his parents loving presence, faith, nor time has enabled him to recover from the catastrophic brain injury caused by his stroke. Furthermore, the medical evidence establishes that the damage to the vital parts of his brain which he requires to benefit from life, is incapable of repair. Intensive care can keep MG alive, and it has enabled him to receive the love, care and attention of his family and his sisters [to] spend time with him over a prolonged period. However, he is an individual child, a patient in his own right and a view as to what is in his best interest must be considered separate to what those who love him may wish."
Mr Justice Trowell
24 April 2025