No liver transplant without parents' consent

Re T (a minor) (Liver transplant: consent); CA (Lady Justice Butler- Sloss, Lord Justice Waite, Lord Justice Roche) 25 October 1996

Where the court was asked to sanction major invasive surgery on a child suffering from a life-threatening condition, notwithstanding its parents' lack of consent to such surgery, the primary consideration for the court was what was in the best interests of the child, not the reasonableness of the parents' refusal of consent.

The Court of Appeal allowed an appeal by the mother of an 18-month-old child against the decision of Mr Justice Connell on 17 September 1996, on an application brought by the local authority under section 100(3) of the Children Act 1989, whereby he ruled that (i) it was in the best interests of the child to undergo surgery for a liver transplantation, (ii) that permission be granted to perform the surgery notwithstanding the mother's refusal of consent; and (iii) that the child be returned to the jurisdiction for the purposes of such surgery.

Having reversed that ruling, the appeal court directed that no information be published that might lead to the identification or current location of any of the parties.

Lady Justice Butler-Sloss said the child suffered from biliary atresia, a life-threatening liver defect. The unanimous medical prognosis was that he would not live beyond the age of two-and-a-half without a liver transplantation. It was equally the unanimous clinical opinion of the consultants that it was in his interests to undergo the operation when a donor liver became available. But the parents, both trained as health care professionals and both experienced in the care of young sick children, did not wish the operation to take place.

The main issue was whether the court should overrule the decision of the parents and consent to the operation.

The approach of the court to such difficult and anxious questions was now clearly established: the welfare of the child was the paramount consideration. The consent or refusal of the parents was an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court had regard to the view of the parent would depend on its assessment of that view. But the court decided, and in doing so might overrule the decision of a reasonable parent.

In her Ladyship's view, the judge erred in his approach to the issue. He accepted the unchallenged clinical opinion of the consultants and assessed the reasonableness of the mother's decision against that medical opinion. Having held that the mother was unreasonable, he accepted that the liver transplant would be likely to prolong the child's life and, in the absence of any reasonable argument to the contrary, concluded that he should consent to the operation.

Having already decided that the mother's approach was unreasonable, he did not weigh in the balance reasons against the treatment which might be held by a reasonable parent on much broader grounds than the clinical assessment of the likely success of the proposed treatment.

Underlying the mother's objections was a deep-seated concern as to the benefits to her child of major invasive surgery and post-operative treatment, the dangers of failure long term as well as short term, the possibility of the need for further transplants, the likely length of life, and the effect on her child of all these concerns. The judge did not assess the relevance or weight of such considerations in his final balancing exercise.

To prolong life was not the sole objective of the court and to require it at the expense of other considerations might not be in a child's best interests.

On the most unusual facts of this case, with the enormous significance of the close attachment between the mother and baby, the court was not concerned with the reasonableness of the mother's refusal to consent but with the consequences of that refusal and whether it was in the child's best interests for the court in effect to direct the mother to take on this total commitment where she did not agree with the course proposed.

After much anxious deliberation, her Ladyship concluded that it was not in the best interests of the child to give consent and require him to return to England for the purpose of undergoing liver transplantation. The best interests of the child required that his future treatment should be left in the hands of his devoted parents.