Facts:
This case related to the withdrawal of life-sustaining invasive treatment in respect to an eight-month-old baby, Indi, who was born with an incurable mitochondrial disease. By two earlier judgments handed in October, Peel J. authorised extubation in line with her care plan. Her father has since been fighting the decision.
According to the care plan “Parents should be supported to decide where compassionate care would be best delivered. Options include a hospice, the hospital, or home”. By the time the care plan came to be implemented, clinical opinion was that the invasive treatment could only be withdrawn at a hospital or hospice. The parents sought for Indi to be extubated at home after their plea for a transfer to Italy was refused.
Decision:
Peel J. had already ruled that the doctors were lawfully allowed to limit treatment. In this case, the question was whether there could be a change in the care plan. The change of care plan was the result of the deterioration of Indi’s condition, making palliative care at home impossible. Peel J. treated the issue as a best-interest decision.
He did not accept the submission put on behalf of Indi’s father that “the Trust must demonstrate a material change of circumstances to justify a change to the care plan” based on NHS Trust v AF (by his Litigation Friend the Official Solicitor) and SJ [2020] EWCOP 55. The reason for the refusal was that nobody asked to revisit the findings. The relief sought is related to the implementation of the substantive order, not the conclusions. In the Judge's opinion, this issue was the result of a misunderstanding between parents and clinicians regarding the original order.
While any material change may be relevant, the test remains one of the best interests. The Judge felt he had received enough expert evidence and the father’s requests were an attempt to delay the inevitable outcome resulting in more pain and suffering for Indi.
The Judge acknowledged that the wishes of the parents were a powerful consideration but was not the only one. After considering the evidence and any potential necessity for other expert evidence, he authorised the NHS Trust to arrange for the extubation at the hospice, unless the parents elected that it happens at the hospital. Extubation could be performed anywhere, but not aftercare. In fact, Peel J. noted that the lengthy delay since the first judgement caused the inability to allow extubation at home.
Implications:
This case demonstrated that, while expert evidence is important and their lack could result in an unfair trial, courts could limit the amount accepted at a certain time. Here the father tried to rely on expert evidence to delay the extubation. After considering all the evidence the Judge already received, he decided there was no need for further evidence.
Furthermore, the hospital could change care plans if the patient’s condition deteriorates. The decision should be based on the patient’s best interest.