Child can have brain surgery against wishes of father

Children|August 19th 2019

One of the responsibilities of parents is to make decisions regarding their child’s medical treatment. Obviously, the decisions should normally be made by both parents jointly. Sometimes, however, the parents are not able to agree what treatment their child should receive. In that case, one or both of them will have to ask the court to decide the matter, by making a ‘specific issue order’. That is what happened in the recent High Court case Z v Y.

The case concerned a six year old child, who sadly suffers from epilepsy. She lives with her mother in this country. Her father is a Moroccan national living in Italy, which is where the child and her mother used to live before they came to this country in August 2016.

The child was diagnosed with epilepsy at the age of 22 months. Since then she has had various treatments to control the epilepsy, but without success. In February this year she underwent a stereotactic EEG, which is a procedure in which 14 electrodes were implanted deep in her brain. As a result of that operation and the subsequent monitoring of those electrodes, she was deemed to be a suitable candidate for epilepsy surgery. Following a consultation in May with the paediatric neurosurgeon charged with considering whether she was a candidate for surgery, it was proposed that she underwent brain surgery in August.

The mother wanted the surgery to proceed despite the risks involved, believing it to be the best chance for the child to become seizure free. The father, on the other hand, was not willing for the child to undergo the surgery, considering that the success rate for such surgery was too low having regard to the risks involved, which included that the child may succumb to paralysis.

The mother therefore applied to the court for a specific issue order that the child undergo brain surgery to alleviate epileptic seizures.

The application went before Mrs Justice Gwynneth Knowles in the High Court. She considered the medical evidence, which indicated that the child suffered a number of epileptic attacks every night, and that children with such uncontrolled epilepsy have a 1 in 250 risk to life each year. Surgery represented the only realistic chance of rendering the child seizure free, although the chances of the surgery being completely successful were only 50%.

Obviously, Mrs Justice Knowles had to balance the possible benefits of surgery against the risks. I won’t go through all of her reasoning, but I thought this was perhaps the most telling of her findings:

“Putting myself in [the child’s] shoes, she would take into account that there are better outcomes if surgery is performed while she is younger. She would also take into account that all the other ways of managing her epilepsy, either drugs or a ketogenic diet, have failed to give control. I have come to the conclusion that [she] would be likely to support surgery. The prize of being epilepsy free, of being like the other children with whom she goes to school would be worth, for her, the risks the surgery failing to improve her condition.”

As to the father’s position, Mrs Justice Knowles felt that he lacked understanding of the effect of epilepsy on his daughter’s life. His suggestion that surgery should be risk free seemed to her to be “wholly unrealistic” – no surgery is risk free.

Taking everything into account, Mrs Justice Knowles drew up a ‘balance sheet’, with the negatives of surgery on one side (including the risk of death and a relatively small risk of serious consequences), and the positives on the other (the chance of being seizure free and having a relatively normal life, or even just a reduction in seizure activity). Having considered those, she was satisfied that the child should have the surgery, and therefore made a specific issue order to that effect.

I don’t know whether the child has had the surgery, and we may never, of course, find out whether it is successful. Whatever, this decision must surely be the right one. As the mother said in evidence: “If anything happens to [the child], I will feel that I have given her the best chance.”

You can read the full judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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