Consult parents: Then the court

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Child C was seven years old, one of four children; when her sibship was, with the consent of their parents, placed with local authority foster carers in 2012. The children had made serious allegations about abuse from their parents and other adults within the extended family.

On the basis of further information the local authority obtained a Care Order in 2014, which allowed it to take the children into care and keep them there while the order remained in force. Whilst C’s parents retained their parental responsibility, one additional effect of the care order was to give the local authority parental responsibility for C and her siblings. Together with the power to determine the extent to which C’s parents were allowed to exercise their responsibilities. In determining that C’s parents should not be allowed to exercise their parental responsibility to provide consent for her medical treatment, the court had to be satisfied that this limitation on their rights was necessary in order to safeguard C (and her siblings), or to promote her welfare.

Although a court hearing did not find the children’s allegations established, the judge nonetheless supported continuing fostering, and the children have not seen their parents since. A subsequent clinical assessment concluded that this placement had resulted in each child making ‘remarkable progress’; and that the original allegations could be explained in psychological terms by their growing up (prior to 2012) in a ‘confused and unboundaried family setting’. There was, nonetheless, a need for each child to have long term therapy.

In April 2019 C, now 14, became increasingly unwell with involuntary muscle movements and tics. Within a fortnight she had been diagnosed with a streptococcal infection, manifesting as an autoimmune neuropsychiatric disorder. Her sepsis progressed alarmingly. Two weeks later she had undergone aortic valve surgery. Following surgery, ventilated, she was visited by her mother.

Despite this therapy C continued to deteriorate; within a week there was evidence of multi organ infarction and disseminated intravascular coagulation. The hospital staff felt that C’s care should no longer be based on an intent to cure; rather, to provide palliative care, with an intent to keep her comfortable, symptom free.

This decision to change the ‘direction’ of care required the consent of a person with parental responsibility. As a result of the enduring care order, whilst C’s parents retained a right to be informed, they had not regained a role as medical decision-makers on behalf of their children.

Neither parent had been involved with any meetings with the treating clinicians; nor forewarned that C might die, or that treatment with an intention to cure might be withdrawn. The hospital staff contacted the local authority, seeking consent for this ‘redirection’ of care. The local authority agreed that the parents needed to be informed, and that they should be given the opportunity to say goodbye to their daughter. C’s mother was called, and she said she wanted to come to the hospital to do so. On C’s final morning the local authority noted at 10.04 that mother would be at the hospital by 12.00. In the event, following a telephone conversation between the local authority and the hospital at 11.08 the process of withdrawal commenced before mother arrived, and C died at 11.54. Her mother arrived shortly afterwards, and was told that her daughter had died.

The conduct of the local authority was scrutinised in the High Court. The judge could not accept or find that either parent had given consent to the withdrawal of C’s life support. The local authority had accepted its internal legal advice; that ‘We need to consult with (the parents) but...our duty as corporate parents is to accept the medical advice and avoid unnecessary suffering. If that is contrary to the parents’ wishes it is unfortunate but we need to take that course’. The High Court found that this advice was wrong. The ‘corporate parent’ has no power to consent to the withdrawal of a child’s life support.

The Court noted that it was ‘...to say the least, extremely regrettable that the mother was not able to say goodbye to her daughter before she died’. The court emphasised, for the avoidance of any doubt that no criticism could be made of the clinical care at the hospital. It became clear during the evidence that the local authority had neither protocol nor policy for dealing with a child in whom serious medical decisions had to be taken. The local authority’s director of children’s services accepted that his department should have made an application to the High Court for permission to withdraw treatment; or alternatively, should have invited the hospital trust to do so. He recognised that he should have involved C’s mother more in the decision-making process.

This story reminds us all that even where parental responsibility has been curtailed by the local authority, whilst those adults remain legal parents, they must be consulted on serious medical decisions relating to their child: Irrespective of whether they remain empowered to make those decisions.

If that right has been taken away from them, only the High Court has authority to make decisions to withdraw life support as a ‘judicial parent’.

Decisions of this magnitude cannot and must not be taken by the local authority.

Robert Wheeler
Department of clinical law, May 2021