An NHS Trust v Mother & Ors [2024] EWHC 2207 (Fam) is a case which throws two issues into stark relief. The first is the problem of government by guidance. The second is what might be thought to be the increasingly urgent need for an appellate level decision on the rights of children in the context of restrictive interventions. The judgment was delivered in slightly curious circumstances, almost a year after a consent order had been endorsed providing for the feeding by naso-gastric tube of a 12 year old girl. The parties (including the girl’s parents, and by her Guardian) were able to reach agreement, but Francis J agreed to produce a reserved judgment to address:
“an apparent tension between, on the one hand, the common law authorities around consent to treatment and restrictions for children and, on the other, the Code [of Practice to the Mental Health Act 1983].”
G was not, in fact, detained under the MHA 1983, but at paragraph 13, Francis J held that:
it would be incorrect to regard this case as being subject to different principles simply because it technically falls outside of the Code. In my judgement, the Trust is correct in contending that it is, in effect, bound by the Code, even though strictly speaking G is not detained pursuant to the Mental Health Act 1983. In my judgement, the Code is properly to be seen as guidance for registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.
Francis J set out the relevant passages of the (English) Code of Practice, namely paragraphs 19.40 and 19.41. He identified that:
19. Eva Holland’s very helpful skeleton argument on behalf of the Guardian correctly identifies that the Code refers to a number of cases in a footnote to section 19.40 and these are also referred to in the Position Statement on behalf of the Trust. The Code came into force in 2015. Ms Holland submits to the court that practitioners must be guided by the developing case law in this area. I agree; it is, it seems to me, clear that the Code must follow case law. Case law will be developed with the basis of legal analysis following expert evidence. Parliament produces statutes. Judges interpret statutes where that is necessary. The Common Law is derived from judicial precedents, to which the long established and understood doctrine of precedent applies. These are basic truisms. It is a fundamental principle of our doctrine of precedent that the Common Law in England and Wales is developed by Judgments of the High Court and above. Of course when delivering a Judgment, judges will always take into account the expert evidence that is placed before them. I am not in any doubt that it is judges, and not those writing the Code, that state the law. Indeed, I cannot see how any student of jurisprudence could suggest that a Code of Practice could be superior to judicial precedent. From time to time the Code will be developed and updated, based upon judicial precedent. I agree with the submission that there should be no tension between the Code and the common law authorities. However, if there is, the matter must be referred to the court for the judge to decide.
He agreed with the submissions made on behalf of the Trust that:
21. […] the authorities establish the following proposition: where a child lacks Gillick competence to make their own decision, and there is agreement between the clinical team and parents as to the best interests of the child, a parent can consent to both medical treatment and any consequent deprivation of liberty. This enables clinicians lawfully to carry out the treatment plan. In those circumstances, no court authorisation is required. NG Tube feeding, even if contrary to the non-Gillick competent child’s wishes, does not fall within a special category that requires court authorisation. The primary purpose of the tube feeding is to preserve life. Rather than being a case where it will have long-term physiological consequences, I agree with the submission made on behalf of the Trust that the opposite is in fact true, to the extent that without tube feeding the child might (probably would) die. I agree with the submission made by the Trust that the guidance in the Code that there are limits on the decisions which can be taken by parents in relation to treatment of their children under the age of 16 is erroneous. Where there is consensus of the clinical team and parents, the parents are able to provide their consent.
He noted that the Code – which had not been updated since 2015 – required updating.
22. The Trust, supported by the Guardian, invites the court to conclude that for those in G’s situation, a parent can consent to treatment on their behalf, even that which is repeatedly invasive and amounts to a deprivation of liberty, and a court application is not required. It seems to me that the Code has not been updated since 2015 and that updating is now required. It is not, of course, the judicial function to become immersed in the drafting of such guidance; however, of course, the Code will from time to time be amended to reflect judicial decisions.
He also addressed the question of restraint and deprivation of liberty, and agreed with Lieven J in Lincolnshire County Council v TGA [2022] EWHC 2323 (Fam) that G’s parents could consent to what would otherwise be a deprivation of her liberty. Indeed, he went even further than had Lieven J in TGA, Lieven J had held that parent could only exercise their parental rights – including (as she put it) consenting to deprivation of liberty – if they were acting in their child’s best interests. If they were not, she said, then such a decision would no longer fallen within the zone of parental responsibility. Francis J noted that:
25. […] It seems to me that even a decision which was made contrary to the child’s best interests could still be a decision made in the exercise of parental responsibility. Every day parents will exercise parental responsibility and will sometimes make decisions that are contrary to their child’s best interests. This is still exercising parental responsibility. It is the duty of the State to intervene where a decision is contrary to the best interests of the child, and might cause the child to suffer significant harm. However, where, as in the instant case, the treating medical team and the parents agree, the state’s intervention is unnecessary; indeed, in my judgement, it would be inappropriate unless, for example (in what I believe would be a very rare case) a local authority or the Children’s Guardian took the view that both the hospital and the parents had “got it seriously wrong”. Such cases, as I have said, will be extremely rare.
Accordingly, Francis J concluded at paragraph 26:
that in G’s sad and difficult situation, where the parents and the treating medical team are “at one”, it is lawful to rely on parental consent, that an application is not only unnecessary, but would make an already almost unbearable situation in respect of G (from her family’s perspective) even more difficult, and would also cause huge expense and delay. Accordingly, a declaration that it is in G’s best interests to receive the treatment and, if needed, to be restrained in order to receive the NG treatment, is unnecessary.
Comment
Francis J is undoubtedly right to say that a Code of Practice cannot make the law, as oppose to reflect it (a point also made by reference to the Code of Practice to the MCA 2005 by the Supreme Court in NHS Trust v Y [2018] UKSC 46). Both the English (and, unaddressed by Francis J, the separate Welsh) Code of Practice to the MHA 1983 undoubtedly need updating in several respects, including, most relevantly, to address the fact that – as a matter of law – parents cannot consent to the confinement of their children when they turn 16, following the decision of the Supreme Court in Re D.
However, an appellate level decision is, I would suggest, urgently required to address the position of children below the age of 16. None of the cases determined by Lieven J in recent years (including that of TGA), nor that before Francis J, have featured any actual arguments about the scope of parental rights in respect of restrictive interventions in the case of children below the age of 16. And the case of AB v CD upon which Francis J placed considerable reliance in suggesting that cases were not required to go to court where there was agreement between parents and clinicians involved a situation where there the course of action was in line with the child’s identified wishes and feelings. That may be thought to be feel very different to a situation where the course of action is against their known wishes and feelings – on Francis J’s analysis at paragraph 21, that objection could be said to be irrelevant if the child lacked Gillick competence. It might be thought to be challenging, not only by reference to the UNCRC and UNCRPD, but also by reference to Articles 8 and 14 ECHR, that a body of case-law is developing which could be characterised as replacing the voice of the child with that of the parent without a clear requirement to identify whether the two are identical.
We have a very extensive body of case-law now making clear that incapacity is not an off-switch for a person’s rights and freedoms when they are being looked at under the MCA 2005. It is not immediately obvious, one might think, that a lack of Gillick competence means that a child’s wishes, feelings, beliefs and values should not be put into the mix.
