Child radiotherapy case: “one cannot enjoy even diminished quality of life if one is not alive”.

19 January 2013 by Rosalind English

An NHS Trust v SR [2012] EWHC 3842 (Fam) – read judgment

The highly publicised case about a seven year old boy whose estranged parents could not agree about the necessary treatment following surgery for his brain tumour was resolved by a firm ruling in favour of orthodox medicine by Bodey J, four days before Christmas.

The facts of the case are well known, but it may be instructive to lay out some of the details of the procedure that follows in a situation like this, and to point up the approach of the courts to a matter where orthodox science lies flat against the claims of complementary medicine. Where the life of a child is at stake, there is no polite equivocation between the two.

Background

Briefly, the mother would not agree to the recommended post-operative course of chemo- and radiotherapy (carrying an 80% chance of success), believing instead that her son would fare better with alternative forms of treatment and would avoid or reduce the undoubtedly detrimental long-term side effects of the treatment package being proposed. In a serious matter such as this, where the parents cannot agree, an application has to be made to the court for a declaration that the procedure in question is lawful. That involves a decision as to the child’s best interests, being the court’s paramount consideration. Hence it was incumbent on the NHS Trust concerned to apply to the High Court to determine the issue of N’s treatment following on from his brain surgery two months previously.

Radiotherapy and chemotherapy are the standard and routine procedures which follow and are complementary to such surgery, the aim being to reduce the possibility of microscopic cancerous cells remaining and to minimise the risk of relapse. However when this was explained to N’s mother she refused to cooperate and shortly after 28 days post-surgery (the optimum period to commence treatment) she went missing with the child.

The Court proceedings

Hogg J requested the media to assist in trying to help find them. In the event, they were located on Thursday 6^th December 2012. N was removed from the mother and placed briefly into foster care. He was then handed into the care of the father.  A further MRI scan demonstrated the existence of cancerous tumour in the surgical cavity in N’s brain, which necessitated urgent ‘second look surgery’ to identify and remove whatever tumour was found. However the mother opposed surgery even though her own expert recommended it. She appointed another legal team and a second expert who reviwed the situation and told the judge that the boy needed to get on with his post-operative treatment, or he would not survive the disease:

Whatever the mum has read or listened to or blogged or whatever…you come across a lot of this, so a lot of websites … a lot of communication sites from parents who share all sorts of different experiences of how they’ve cured their child of X, Y or Z, and parents who are susceptible to this sort of stuff will get hooked onto it very very [sic] easily. But actually it doesn’t make sense; this boy has a highly malignant disease and he will die of it very quickly unless somebody gets his hands on him and treats him.

Surgery therefore went ahead during the week of that hearing. When the court sat again for further consideration and determination of the issue about radiotherapy, another expert on the mother’s side (a specialist in ‘agricultural, environmental and health sustainability’) produced a report about the efficacy of complementary medicine in a case such as N’s. Under cross examination however it was not shown that these were sufficient. The therapies put forward were either experimental, or else used with patients who are in relapse. According to the father’s expert, Dr A, none of the treatments proposed had been

subjected to the rigorous clinical trials which would need to have been carried out before approving a course of treatment for a child.

Despite the mother’s view that  the orthodox view of oncologists (such as Dr. A)  was the product of indoctrination, Bodey J had no hesitation in preferring the view of the NHS Trust and making a declaration accordingly. In summing up the balancing exercise, he points out, pithily although not unkindly:

The balance of advantage and disadvantage tilts well in favour of radiotherapy and chemotherapy, notwithstanding the detrimental side-effects. One cannot enjoy even a diminished quality of life if one is not alive.

In a stark case such as this, it is not a question of the court considering evidence as to research and experimentation going on out there; nor that there are ideas and possibilities being floated, nor even that there are reported success stories of cures occurring without the use of radiotherapy and / or chemotherapy. As Ward LJ said at paragraph 38 of AVS v NHS Foundation Trust [2011] COPR Con. VOL. 219:

 if there is no one available to undertake the necessary operation, the question of whether or not it would be in the patient’s best interests for that to happen is wholly academic.

Furthermore, Bodey J had to take into consideration not only that N’s mother strongly opposed surgery which all the experts (including two instructed on her behalf) had advised was necessary to save his life  but also that her evidence showed that she was against prophylactic anti-emetics, believing that the sickness is or may be a good thing, as it is nature’s way of the body removing toxins. For this reason, he had to draft the order in terms that the treating clinicians were to act on the consent to further treatment given by the father alone.

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