![FD24P00611 - [2025] EWHC 1042 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
Conclusions
The Arguments
There are two options for me: (i) I grant the declaration; treatment does not continue; MG will die; (ii) I deny the declaration; the current care continues; and according to the medical evidence MG dies, albeit he is likely to be alive for substantially longer.
The parents want the latter, in essence, because they hold out hope either for a miracle or that the medical evidence is wrong, and that MG will recover. Through the skill of Mr Mylonas they put their case by an argument on the balancing exercise. It is therefore not enough for me to say I reject their case that there will be a miracle, and that I accept the three doctors’ evidence (one of whom is their own expert) that MG will not recover and will die at most within a few years. I must turn to the balancing exercise and consider each of the factors.
I remind myself of the five stage process. My decision must be what is in MG’s best interest; his welfare is my primary consideration; I must assume his point of view; there is a strong presumption in favour of the course which prolongs life, but that presumption is rebuttable; and I must conduct a balancing exercise in which all the relevant factors are weighed.
This is necessarily a fact specific exercise.
The potential benefits to MG of the treatment continuing which I should consider are:
He is kept alive for longer. I note that there is a strong presumption in favour of preserving life but that like any presumption this presumption can be rebutted. Here, I am told by Mr Mant, that it is rebutted. Being alive, but with no ability to engage with anybody, no conscious sensations, and facing the inevitability of death with no improvement is, I am told, no life worth living. The only answer that Mr Mylonas can give to that is keeping MG living keeps alive the possibility that the medical evidence is wrong, or that there will be a miracle. I cannot accept that argument: I have said I will not take a course relying on a miracle; and I have three experts all in unequivocal agreement that MG will not recover and will die, and I have accepted their evidence. The presumption is therefore rebutted.
He continues to be the object of the love of his family. If he were conscious it would be a great thing for him to receive the love of this family. Sadly he is not, and it can be said given he lacks consciousness there is no real benefit to him of this love. Nonetheless looked at from the position of MG, rather than narrowly considering his lack of consciousness, I do think this love should carry weight.
The potential burdens to MG that are advanced on me are:
The treatment that he has to receive is intrusive. I have detailed above the treatment. This point is resisted by Mr Mylonas on the basis that it cannot be a burden for MG if, as I have found, he is not conscious. In that regard he is supported by Professor Playfor who agreed with him, and his reasoning, in his oral evidence as well as his written evidence. Mr Mant disagrees on the basis that the physical intrusion constitutes a burden simply because it is happening, whether or not MG is aware of it. He must be right – at least to a degree. MG has to breathe by a tube – albeit one pushing in air at low pressure. He has to feed by a tube pushed down his nose into his stomach. He has secretions sucked out of his lungs. He has a ‘port’ to enable blood tests to be taken. I agree that on my findings these do not cause MG pain but they are nonetheless burdens. I agree they will carry less weight than they otherwise would because they cause no pain. Mr Mylonas took time in closing to show me that in some other cases there are heavier burdens placed on patients. The Guardian makes a similar point in her report. I can see that Mr Mylonas is right. That can only take me to the conclusion that these burdens are less heavy than those that other people have endured. Nonetheless they are burdens for this boy that I must weigh in his balance. I find that they are significant.
Further, Mr Osborne points out to me, with acuity, that there is a reference by Professor Playfor in the passage already quoted by me above (paragraph 5.7 of his report) to burdens that are to come as MG deteriorates over time. Professor Playfor said (and I repeat it):
In the future, if ventilatory support is continued, MG will undoubtedly eventually develop burdens associated with his underlying illness. These are primarily due to his relative immobility and lack of spontaneous breathing and include, likely episodes of pneumonia and worsening respiratory failure, bone disease due to osteopaenia (secondary to lack of load-bearing and associated with pathological fractures and the development of renal stones) and scoliosis with associated cardio-respiratory impairment.
This burden of future harm is a burden that I must also weigh into the balance. It is clear to me that burden is likely to be significantly greater than the current burden as MG’s health deteriorates before death. I consider that this will weigh heavily in the balance.
It is urged on me by Mr Mant that being kept alive with no potential to engage with others is a burden on MG. I understand that it is immensely sad for his parents and the Trust to witness MG unconscious and immobile. It does not stop there; it is immensely sad for me looking at the case through the perspective of MG. Even though it is a burden that he himself cannot perceive, I find that being kept alive with no potential to engage with others is a burden, but I have already accepted force in the same point as discharging the presumption in favour of life, and I ask myself whether to count it again risks double counting. I remind myself that the balance metaphor is just that, a metaphor. Worrying about the same factor pushing up one arm of the balance and down the opposite one is to take the metaphor too far. I must hold this point in mind.
It is urged on me by Mr Mant and Mr Osborne that being kept in a Paediatric Intensive Care Unit is a burden. I am reminded not only of alarms and bustle and beeps, but of deaths occurring in the ward. Mr Mylonas, on the other hand, reminds me of the steps taken by the parents to make this bed a piece of the parents’ home. There is force in what both say. This is a burden but it is not dreadful to be in such a ward.
How do I balance these benefits and burdens? I consider that it is appropriate before I make this decision to remind myself that the medical evidence is clear that MG is going to die without regaining consciousness. That is the context that I need to look at the balance. Physical harm, and indeed pain, would not turn the scale if there was a strong hope held out for recovery. Here there is no hope. I must weigh the benefits and burdens in that context.
I remind myself of what the Guardian said in her report (paragraph 33):
“It is with great regret that having carefully considered MG’s unique health needs and individual circumstances that I have concluded that it is not in his best interest to receive further life sustaining intervention. He has received the very best of care for over 10 months, but neither acute medical care, his parents loving presence, faith, nor time has enabled him to recover from the catastrophic brain injury caused by his stroke. Furthermore, the medical evidence establishes that the damage to the vital parts of his brain which he requires to benefit from life, is incapable of repair. Intensive care can keep MG alive, and it has enabled him to receive the love, care and attention of his family and his sisters [to] spend time with him over a prolonged period. However, he is an individual child, a patient in his own right and a view as to what is in his best interest must be considered separate to what those who love him may wish.”
I note further that the Guardian has formed her view from a social work perspective rather than a medical one and has factored in the weight to be attached to MG’s family’s Muslim faith and culture and his relationship with his family in coming to her conclusion as to his best interests.
Looking at the balance, holding all these points in mind, my conclusion is that it is in MG’s best interests that the treatment should not continue. I agree that the treatment is futile. I agree that it is lawful for it to be withdrawn. I will make the declarations sought.
I know that this conclusion will cause heartbreak for ZG and KG. I cannot here say anything which will take away from their pain. Nonetheless, I do say that their love for MG, their dignity throughout the time of his treatment and, throughout the court process are profoundly impressive.
At the conclusion of the hearing I had a discussion with counsel about the arrangements for handing down of this judgment in perfected form, and consequential matters, which will include a palliative care plan. I am confident in assuming that I need say no more here other than I assume that a co-operative approach will be taken and should there be an issue my clerk should be contacted.
Mr Justice Trowell
24 April 2025