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Emma Cave, Confirmation of the High Court’s Power to Override a Child’s Treatment Decision: A NHS Trust v X (In the matter of X (A Child) (No 2)) [2021] EWHC 65 (Fam), Medical Law Review, Volume 29, Issue 3, Summer 2021, Pages 537–546, https://doi.org/10.1093/medlaw/fwab007
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Extract
I. THE FACTS AND JUDGMENT
X, who was nearly 16 at the time of the application, was ‘mature and wise beyond her years’.1 She has a serious medical condition, sickle cell syndrome, which can cause crises where urgent administration of blood products that are contrary to her religious beliefs is clinically indicated. On two previous occasions, urgent applications were made to the court and declarations permitted the administration of blood products.2 On the second of those occasions, before Sir James Munby, the evidence suggested that X was making a Gillick competent refusal of treatment. Sir James described that case as a ‘scramble to justice’ given the urgency of the application and the challenging nature of the arguments and opined that the best way forward was to consider the arguments at a hearing where sufficient time is available to reflect.3 That opportunity was presented in A NHS Trust v X.
The Trust sought an order that ‘top-up’ blood transfusions would be lawful for a 2-year rolling period that lasted until X’s 18th birthday. Sir James considered the contemporary application of In Re R (A Minor) (Wardship: Consent to Treatment) and In Re W (A Minor) (Medical Treatment: Courts Jurisdiction)4 in light of social, cultural, and legal developments, including the Mental Capacity Act 2005 (MCA 2005) and the Human Rights Act 1998. In Re R and Re W, it was held in the early 1990s that competent refusals of treatment by children aged 15 and 16 years, respectively, could be overridden by parents or the court if the refusal would cause them grave harm and was not in their best interests. In NHS Trust v X, the aspect of Re R and Re W under consideration was the ability of the court to overrule the child’s decision.5