Stepping back

On 12 July, Sir Nicholas Wall, the Family Division's new president, declined to get involved in a long-running dispute between a local authority and the parents of a boy with severe epilepsy, about whether he should have surgery. LA v SB & ors [2010] EWHC 1744 (Fam) illustrates a growing reluctance by the family courts to intervene in medical decision making (for another example, see A [2010] EWHC 1549 (Fam)). This trend is in marked contrast to the judicial activism of the 1990s, when judges even went as far as ordering capable adults to undergo non-consensual surgery.

Mr David Duncan was the children's guardian for MB, the youngest of five siblings. MB was aged six, and suffered from a rare but progressive brain disease called Rasmussen's encephalitis. This caused, among other debilities, frequent epileptic fits '“ hundreds a day. His seizures were life-threatening. The doctors caring for MB were concerned that his parents were not cooperating with them in considering treatment options. Since 2007, his treating team had recommended surgery, which would give MB an 85 per cent chance to live free of seizures. If surgery was not attempted MB's brain would degenerate, making him even more vulnerable to seizures and other developmental problems. But MB's mother refused to attend any meeting to discuss surgery. A further concern was the parents' failure to take MB to a two-day assessment programme.

Wake up call

The local authority commenced care proceedings in respect of MB and all his siblings. This seems to have jolted the parents into a more conciliatory stance. They finally agreed to MB undertaking the assessment programme, while indicating they would prefer alternative drug treatments to be considered for MB. They also attended a meeting with his treatment team. Afterwards, the paediatric neurologist reported to the court that 'both parents, and certainly the mother, had not appreciated just how life-threatening the frequent seizures MB has are for him'.

However, this doctor revised her view somewhat, saying that while surgery remained the optimal treatment, she wanted to explore the parents' concerns further with them.

The judge adjourned to allow the hospital to indicate whether it wished to intervene in the proceedings, or to issue a summons asking the court to decide whether MB should have surgery. The hospital declined to become involved. The local authority then indicated that it was content to drop the care proceedings in respect of all the children, save for asking the court to take a decision on whether or not MB should undergo surgery. It put its case in two ways: either the court should exercise its inherent jurisdiction, or it should make a 'specific issue' order in relation to MB.

No jurisdiction

Perhaps surprisingly, the president decided that the care proceedings had run their course and there was nothing more that he could do. Unless the local authority sought a care order or interim care order, with a care plan for surgery for MB, he lacked any jurisdiction to decide anything. He said:

'The decision whether or not MB should undergo surgery is for his parents, not for the court. They are the only people with parental responsibility. Section 100 of CA 1989 prohibits the LA from inviting me to adjudicate on the issue.'

In his view, the issue of whether or not MB should have surgery was between the parents and the hospital. As the hospital had refused to become involved, there was no proper lis inter partes, and so no issue for the court to decide. He went on: 'Parliament, in passing the Children Act 1989 (the Act), has placed a sharp and clear division between the functions of courts and local authorities.

It is properly within the court's province to decide whether or not MB and his siblings should be the subject of care orders: it is plainly not the court's function to decide issues which are the responsibility of others or outside the ambit of its proper role. The court cannot control the activities of social services or any other of the departments of local authorities, nor should it attempt to do so.'

Passing the buck?

The emphasis on proceduralism in this case is unusual. It is also unfortunate that what were euphemistically described in court as 'difficulties in communication between the hospital and the parents' had obscured the parents' comprehension that their son had a life-threatening condition for a three-year period.

The evidential problem arose with the paediatric neurologist's change of heart towards the parents, whose concerns she wanted to explore further. The local authority said this gave rise to a real risk that MB's best interests were not being kept in focus. But, if it thought that, why not make a care plan for surgery, as the judge suggested? Unlike NHS trusts, which do not have a litigation budget for child protection in the same way as local authorities, the authority in this case had already incurred the expense of proceedings.