A, aged seven months, suffered from a severe genetic defect in her immune system known as haemophagocytic lymphohistiocytosis. Although at the time the disease was inactive and A was at home and well (as a result of controlling drugs), it was accepted that the disease could become active at any time and that, without a bone marrow transplant, A would die, probably within a year. Medical experts had recommended the transplant: this had a 50 per cent chance of being a successful cure, a 30 per cent chance of not being successful, a 10 per cent chance of significant impairment and a 10 per cent chance of death as a result of the treatment. A's parents, noting that A had already suffered pain during treatment, contended that they did not want her to suffer further and that they wanted to prolong the quality of life she had, believing that the proposed treatment was too harsh and that God had the ability to cure her. They further argued that the certainty or risk of infertility should be taken into account in balancing what was in A's best interests. The NHS Trust applied for a declaration that the transplant be carried out.
The High Court granted the declaration. Holman J held that a broader approach to the balancing exercise and outcome was both appropriate and justified. The risk of infertility could not be properly considered since it would only arise on the assumption that the child survived, was cured and was able to live a normal childhood and become an adult. It was overall in the best interests of A to have the transplant. Otherwise, a very real prospect of a full life, weighed against death, would have been lost for a few months of babyhood. Citing his earlier decision in NHS Trust v MB (A Child) [2006] EWHC (Fam) 507, Holman J noted that, although he had utmost respect for the parents' faith, it was irrelevant to the decision that the judge had to take: the child, by reason of her age, was incapable of any religious belief and so an objective balancing of the child's own interests could not be affected by the adherence of the parent. Any possibility of a miraculous cure should be left out of the analysis. It was accepted that, although several Articles of the ECHR were engaged in the case, these did not alter or add to the established principles of domestic law in the field.
This case note was supplied by Russell Sandberg and first appeared in Law and Justice. It is reproduced with permission.
