Baby tried to breathe after he was declared ‘dead’, High Court hears

·4-min read
The High Court in London (PA) (PA Archive)
The High Court in London (PA) (PA Archive)

The parents of a seriously ill baby who started trying to breathe after doctors decided he was dead have lost a life support treatment fight at the High Court.

Guy’s and St Thomas’ NHS Foundation Trust said tests showed that the four-month-old boy, who has suffered a serious brain injury and is on a ventilator, was brain stem dead and wanted a declaration of death.

However, lawyers representing the London hospital trust subsequently returned to court and told Mr Justice Hayden that a nurse had noticed the boy trying to breathe, more than a week after doctors had carried out brain stem tests and concluded he had died.

Specialists rescinded “the clinical ascertainment of death” and trust bosses asked Mr Justice Hayden to decide instead what moves were in the boy’s best interests.

Bosses at Guy’s and St Thomas’ became involved in a treatment dispute with the child’s parents earlier this summer and asked a judge to consider the case.

Mr Justice Hayden oversaw a trial in the Family Division of the High Court on Thursday and on Friday ruled that ventilation should be withdrawn and only palliative care provided.

He told the boy’s parents: “I am so sorry.”

The judge said he had to decide what moves were in the baby’s best interests and said evidence showed that the baby was dying.

“It is impossible to escape the conclusion that treatment has failed,” he said in his ruling.

“It protracts death rather than promotes life.”

He added: “Continued ventilation will serve here only to protract death.”

The judge said because of the severity of the baby’s brain injury he had a “complete absence of ability to benefit from treatment”.

Barrister David Lawson, who led the hospital’s legal team, told Mr Justice Hayden that the boy was dying.

Mr Lawson said the boy had suffered a “devastating” brain injury and asked the judge to rule that he should now follow a “palliative care pathway”.

A specialist told the judge nothing could be done to help the boy.

The boy’s parents, Muslims of Bangladeshi origin, viewed his breathing attempts as a miracle and want him to remain on a ventilator.

The child patient received care at Guy’s and St Thomas’ NHS Foundation Trust, London (Aaron Chown/PA) (PA Archive)
The child patient received care at Guy’s and St Thomas’ NHS Foundation Trust, London (Aaron Chown/PA) (PA Archive)

They indicated that they planned to mount an appeal against Mr Justice Hayden’s decision.

A senior doctor involved in the boy’s care had told the judge that she did not not know whether there were other similar cases.

The doctor said she had never seen such a situation before and told the judge that a review was ongoing.

She apologised to the boy’s parents.

“I think it must be just beyond comprehension (for the parents),” she said. “That doctors looking after their baby can have made what appears to be such a horrible error.”

The judge was told the baby had remained on a ventilator, even though tests had shown him to be brain stem dead, because there was an ongoing court dispute.

“I don’t know in all honesty whether there are other cases like this,” the doctor told Mr Justice Hayden.

“We are currently reviewing it as professionals.”

The doctor, who at one stage wept while giving evidence, added: “I can only say I am terribly sorry for what has happened.

“It has only made a very difficult situation even more difficult.”

The doctor told the judge that the boy had a severe brain injury, was “dying” and said palliative care would now be in his best interests.

She said he would have a cardiac arrest and resuscitation would fail.

“The little human being that he was,” she said, “he is no longer.”

She added: “We have still got his body here but the little person he was is no longer. He will never come back. He should be allowed to go.”

Another specialist told the judge nothing could be done to help the boy.

He said brain tissue had turned to water.

Mr Justice Hayden added the case raised “important questions”.

The judge ruled that neither the boy nor medics involved in his care can be named in media reports of the case.

Mr Justice Hayden has overseen a number of child life-support treatment cases recently.

In July, he ruled that doctors could lawfully stop providing life-support treatment to a 12-year-old boy who suffered brain damage in an incident at home in Southend in April.

Archie Battersbee died after his mother, Hollie Dance, and father Paul Battersbee, failed in bids to overturn Mr Justice Hayden’s ruling.

Earlier this week, the judge ruled that doctors could stop providing life support treatment to a six-year-old girl who had a rare and incurable neurological condition.