FD25P00518 - [2025] EWHC 2247 (Fam)

Dr G is Baby J’s treating clinician. He is a consultant neonatologist and has been for nine years. He has filed three witness statements. In his first statement dated 20 August 2025, he sets out the background to Baby J’s admission and states a breathing tube was inserted into Baby J’s windpipe and he was started on mechanical breathing as his own was not effective enough. He notes the majority of babies born at 32 weeks gestational age would not require intubation and mechanical ventilation. Baby J was transferred to the neonatal unit at the hospital, it is a level two neonatal unit with highly experienced doctors and nurses.

Baby J’s cord blood gases show severe acidosis which demonstrates that the oxygen supply to Baby J via the placenta was significantly diminished for a period of time. He has started having seizures from twenty eight hours of age. On 12 August he was transferred to the neonatal intensive care unit at a neighbouring hospital. His diagnosis is severe Hypoxic-Ischaemic Encephalopathy (HIE grade 3). This is a severe brain injury and babies with this condition often have kidney, liver and sometimes cardiovascular disfunction.

Baby J had a 12 lead Electroencephalogram (EEG) and the results were studied by a consultant neuroradiologist and his report concluded: “The background is of very low amplitude with no convincing cerebral cortical activity seen. Occasional higher amplitude slow component is seen with some superimposed faster rhythms; these might be artefactual/ at times related to muscle activity observed. There are no epileptiform abnormalities, and no electrographic seizures are recorded. These findings are in keeping with severe diffuse encephalopathy and in the clinical context most likely due to severe hypoxic brain injury although the ongoing sedation with the prematurity could be contributing to this depressed EEG.” The following day he had a MRI scan which concluded: “Extensive diffusion restriction throughout both cerebral hemispheres (predominantly white matter but some cortex also), deep grey nuclei and brainstem is consistent with a severe, profound pattern of hypoxic-ischaemic injury.”

On the same day a multidisciplinary team meeting took place on 13 August 2025 which included five neonatologists. The team reached a consensus that if the MRI supported the EEG results (the MRI was being carried out when the MDT met) Baby J is “likely to have severe and global neurological impairment with a very poor quality of life if he does survive and the evidence is that he would be unlikely to have enough respiratory drive off the ventilator to support long term survival. The group supports a redirection towards comfort care.”

Following these investigations and the MDT, Baby J was transferred back to his original hospital with a plan to be extubated (taken off mechanical ventilation) and for the withdrawal of intensive care. He was considered to be for: “Do Not Attempt Resuscitation” and “no cardiopulmonary resuscitation”. The second respondent local authority who had obtained an interim care order in respect of Baby J, confirmed they would not consent to the extubation plan and it was agreed an application to court was needed. Dr G then sets out his evidence why Baby J should receive comfort care rather than intensive care and mechanical ventilation.

In his second witness statement, dated 21 August 2025, he remained of the view Baby J will, highly likely, stop breathing if mechanical ventilation is removed. The consultant involved in the MDT meeting at the other hospital, confirmed her views that:

He then considered academic literature on the issue of whether Baby J’s ability to breathe independently may improve if his extubation is delayed. He quotes some academic articles. He concludes it is not possible to quantify the likelihood of Baby J breathing independently if his mechanical ventilation is continued for another two weeks. He states: “It remains my view that it is in Baby J’s best interests to withdraw intensive care including ventilation as soon as possible for the reasons set out in my previous statement. By this treatment continuing Baby J is subject to ongoing burdens and risks with no prospect of the treatment benefitting him.”

His third witness statement is dated 26 August 2025. He confirms that he has been responsible for Baby J’s overall care since 15 August and examined him on 25 and 26 August 2025. He remains ventilated and has been started on a low dose of Morphine in order to comfort him. This was begun because Baby J was showing movement and there was a concern he was uncomfortable. He has oral secretions for which he needs frequent suctioning that is almost every two hours and during this procedure he “shows signs of discomfort by moving his limbs and trunk slightly.” He is taking more breaths than he did on 22 August and Dr G is unable to be certain if he will be able to breathe independently for a prolonged period after being extubated.

Baby J tolerates preterm formula milk given by nasogastric tube. However feeds have been reduced as he shows signs of gastro-oesophageal reflux. He opens his bowels and passes urine normally. Neurologically he is becoming more awake and opens his eyes spontaneously. His pupils react to light and he has increased tone. The stiffness in his lower limbs is a symptom of the significant brain injury. “Baby J is able to feel pain and discomfort. He is showing that by, for example, moving his foot away on gentle squeeze of his heel and when having blood samples taken.”

He did not think Baby J’s overall prognosis had changed since 21 August 2025 albeit he was breathing a little more. He states: “...if Baby J is able to breathe and survive, it is still highly likely that he will survive with severe disabilities. He might not be able to see or hear, he might not be able to swallow or manage his secretions. He might be dependent on gastrostomy feeds for his nutrition. He might not be able to walk or talk…”

He continues: “My professional view remains that it is not in Baby J’s best interests to continue his intubation and ventilation (intensive care). I do not think this is providing any benefit to him when at the same time it is exposing him to the burdens of intensive care. These burdens include discomfort of having a breathing tube in the windpipe, frequent blood tests that are needed to manage his ventilation and frequent suctioning (almost two hourly). He is also exposed to risks associated with ventilation such as pneumothorax (air leaks from the lungs to the chest cavity which might require draining if concerning enough) and infection. Having a long line in place also increases the risk of infection and extravasation (infusion fluids leaking to outside veins) injury.”

His evidence has regard to the relevant Royal College Guidelines. He states:

“I based my view in accordance with the Royal College of Paediatrics and Child Health (RCPCH) guidance document titled: Making decisions to limit treatment in life-limiting and life threatening conditions in children: a framework for practice. In my view, Baby J’s condition might come under the following categories of the framework:

a)

Category 1C : “Inevitable death, where death is not immediately imminent but will follow and where prolongation of life by LST confers no overall benefit”. My view is that Baby J’s life is being prolonged unnecessarily by the intubation and ventilation at the moment. If he is extubated it is highly likely that he will not survive more than days and weeks.

b)

If he survives however, it is highly likely that he will survive with severe disabilities. In this situation, my opinion is that category 2C will apply. Category 2C: “Lack of ability to benefit; the severity of the child’s condition is such that it is difficult or impossible for them to derive benefit from continued life”.

Dr G gave oral evidence. He was a measured and composed witness. He was very careful when answering questions. He said that as of last night, there have been no material changes in Baby J’s condition. On 25 August 2025, the senior nurse on shift that night doubled Baby J’s dose of morphine because she considered from observation and the charts he was in discomfort or pain. His oxygen saturation levels had gone down to 60, when previously they were normally at 95 and above. He had oral secretions. He was agitated at that point and for that reason his morphine was doubled. He has since settled.

Baby J has been agitated and in discomfort and this is caused by his breathing tube. He gave evidence that the clinical team can tell if baby J is in pain or discomfort, as he arches his body and moves his legs. One can see he is not “happy” and his oxygen levels drop. His evidence is that Baby J is obviously showing discomfort. With his maturity increasing, Baby J is reacting more to pain and discomfort. Dr G did not consider the fact Baby J’s eyes opened demonstrated brain function but was simply a consequence of muscle growth. He said Baby J may never have sensory experiences. He needs one to two minutes of suctioning every two hours and this is a discomfort.

He said he had reviewed the second opinion report and agreed with it. His evidence was that ventilation remains futile and causes discomfort. He said there was no other means to provide the ventilatory support. He said the plastic tube in Baby J’s windpipe causes discomfort, as his windpipe is soft and the tube is tough plastic. He gave evidence that Baby J will not recover and that clinicians cannot restore his health, rather they can only prolong life. It is highly likely the windpipe pain will increase as he matures and becomes bigger and he will continue to feel pain. There is a high likelihood that morphine will need to be increased.

He confirmed Baby J has suffered a catastrophic and irreversible injury and that very few babies with this type of injury will survive. Baby J was very likely to have an unsafe swallow and was at risk of aspiration and whilst milk can be provided by a nasogastric tube he would require a gastrostomy or a PEG to be fed. When asked if his open eyes meant progress in brain function, Dr G said this was not the case and this is because of gestational changes, not brain recovery.