Parents’ wish to treat child’s cancer with Chinese medicine overruled by Family Court

11 October 2015 by Rosalind English

JM (a child), Re [2015] EWHC 2832 (Fam), 7 October 2015 – read judgment

Mostyn J, ruling in the Family Division that a child should receive surgical treatment for bone cancer against the wishes of his parents, has referred to Ian McEwan’s “excellent” novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion. The judge noted however that the book was in fact “incorrectly titled”:

a question of whether a medical procedure should be forced on a 16 or 17 year old should be sought solely under the High Court’s inherent jurisdiction, and not under the Children Act.

This case on the other hand concerned a ten year old child, J. The NHS Trust sought permission to perform urgent surgery of a serious nature on his right jawbone, where he has a very rare aggressive cancer. Its medical name is a craniofacial osteosarcoma, presenting a tumour in the bone of about 4 inches long and 1½ inches wide. The unambiguous medical evidence before the court was that if it was not removed very soon then in 6 months to a year J would die “a brutal and agonising death”. The oncologist had spelt this out in unflinching detail:

 J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.

Surgery would not be straightforward. It would involve harvesting skin and bone from his leg in order to rebuild the removed jaw bone. As a result J may be affected by lameness in future. He would need false teeth inserted in the lower right quadrant of his mouth. As he grows his face may develop a lop-sided appearance. He may suffer from chewing problems and may need to be on a softish diet in the long term. But it was estimated that he has a 55% – 65% chance of survival for 5 years if he underwent surgery. However, the expert evidence was that these were risks that should be taken given the “awful alternative”.

Neither J nor his parents would consent to this operation. The parents, who were from Poland, preferred to go along the Chinese medicine route. They were fearful that he would be so disfigured when he grows up that he would blame them for allowing the operation to go ahead.  But, as Mostyn J pointed out,  they had not appreciated that the prospect of him growing up was completely remote, indeed completely impossible, if they did not consent to his having this surgery.

The legal background

Under section 8 of the Family Law Reform Act 1969, a child has to be 16 before he or she can validly consent to a surgical procedure. The child in this case did not fit within the common law exception to this rule in that he was not Gillick competent, therefore he could not give or withhold consent over the wishes of someone with parental responsibility. In this case, of course, the parents refused, although the views and opinions of both the doctors and the parents had to be carefully considered by the court. In this case the judge had no doubt at all that the proposed procedure was in J’s interest.  He reached this conclusion bringing into the judicial evaluation exercise every detail of the written and oral evidence of the oncologist, whilst still giving full weight to the wishes of J as well as those of his parents.

It is a strong thing for me, a stranger, to disagree with and override the wishes of J and his parents. But I have absolutely no doubt that J must be given the chance, a very good chance, of a long and fulfilling life rather than suffering, quite soon, a ghastly, agonising, death.

This case was complicated by the fact that by the time of the hearing, J’s father had taken him to Poland to seek a second opinion. It may be that J was by this time habitually resident in Poland. However, the English court was still seised of the specific issue of J’s medical treatment, under Council Regulation (EC) No 2201/2003 on the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. Therefore, under Article 19 of this Regulation, the Polish court should decline jurisdiction in relation to this matter in favour of this court.

Mostyn J’s preliminary decision was that the NHS trust should be given permission to provide and administer all treatment to J (notwithstanding that his parents did not consent to such treatment on behalf of J), such treatment to include the complete removal of J’s craniofacial osteosarcoma. However, it was the judge’s view that the application should be framed as a combination of an application for a specific issue order and an application for declaratory relief under the inherent jurisdiction of the High Court. This would allow the application to be issued directly in the High Court, for which the family should receive legal aid.

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