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Thomas Evans & Kate James v Alder Hey Children’s NHS Foundation Trust

22nd March 2018

On 20th March 2018, the Supreme Court refused the parents of Alfie Evans permission to appeal against the decisions of the Court of Appeal and Hayden J regarding the withdrawal of Alfie’s ventilator support.

Alfie was born in May 2016 and is now 22 months old.  By the time of his four month check Alfie’s parents and health visitor had noticed that he was not meeting his developmental milestones.  By December 2016 Alfie had lost some of his previously learned skills and was admitted to Alder Hey Hospital in Liverpool – a tertiary unit and centre of excellence for the treatment of severely ill children.

During 2017 Alfie’s condition continued to deteriorate and he was given ventilator support.  Initially it was possible to wean him from the ventilator support but that ceased in May 2017 and he has required constant and increasing support with his breathing ever since.  Serial MR imaging demonstrated progressive destruction of Alfie’s brain matter and both his treating and the visiting clinicians concluded that he was suffering from an untreatable neuro-degenerative disorder.  In addition to the underlying condition, Alfie also suffers from uncontrollable seizure activity.

The treating team at Alder Hey obtained external reviews and also provided facilities for the family’s independent experts to assess.  All the treating clinicians and medical experts were unanimous in agreeing that Alfie’s condition was untreatable and that his seizure activity could not be controlled.

In those unusual and tragic circumstances the Trust and the UK independent experts concluded that continued active treatment provided no benefit to Alfie.  His parents did not accept the medical evidence and the case was brought before Hayden J.  After a seven day hearing in which he carefully considered all the evidence he concluded that, in view of Alfie’s condition and the unanimous medical evidence, continued treatment was not in his best interests.

Alfie’s parents unsuccessfully appealed that decision to the Court of Appeal who handed down judgment on 6th March.  Alfie’s parents then sought permission to appeal from the Supreme Court.  Their primary argument was that the Court  should not intervene in a parent’s choice as to medical treatment unless a threshold of significant harm had been established.

This echoed the basis of the appeal in the Gard case in 2017.  In Alfie’s case the argument was advanced on the basis that his parents were victims of discrimination contrary to Article 14 ECHR.  In refusing permission to appeal, the Supreme Court confirmed that the test in medical treatment cases was the child’s best interests, describing this as “the gold standard”.

It is possible that Alfie’s parents will now seek to bring the matter before the European Court of Human Rights in Strasbourg alleging that the actions of the UK Courts in rejecting their case on discrimination is an infringement of their rights by the state.

Michael Mylonas QC has represented Alder Hey Children’s NHS Foundation Trust throughout.  Susanna Rickard was instructed as junior on the appeal to the Supreme Court. Sophia Roper was instructed by CAFCASS to act for the Child’s Guardian appointed by the Court.

Please click here for a copy of the judgment.


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