R (on the application of O) v PETERBOROUGH CITY COUNCIL & CAMBRIDGESHIRE & PETERBOROUGH NHS FOUNDATION TRUST [2016]

R (on the application of O) v PETERBOROUGH CITY COUNCIL & CAMBRIDGESHIRE & PETERBOROUGH NHS FOUNDATION TRUST [2016]

Keywords: Irrationality; Medical decisions; Child neglect; Child Protection Plans

FACTS: The case concerned an autistic child who had been refusing to eat and drink for a significant period of time. She was being fed via a nasogastric tube. A dispute arose between the child’s parents and the local paediatric team regarding appropriate medical treatment. The local paediatrician recommended that the child be admitted to a specialist unit as an inpatient. The child’s mother disagreed.

The local NHS trust responded to the disagreement by making several safeguarding referrals to the local authority. However, there were no child protection concerns so no action was taken in response to these. Following a further referral, a core assessment was carried out and the child was identified as a child in need. This was, presumably, on the grounds of her disability, since the assessment also concluded her mother provided good emotional warmth and excellent home education.

The mother sought a second opinion and was referred by her GP to a London hospital. However, they declined to consider the case without a local paediatric team being in place and the local paediatric team had withdrawn from the case as a result of the dispute. The GP made a further referral to a paediatrician but this was not fruitful.

The NHS trust made a further safeguarding referral which was investigated by the local authority. It was noted that the child was not toilet-trained and was still using a buggy. It was also noted that the mother had been trying to seek a second opinion since the withdrawal of the local paediatric team. All these issues were considered during a meeting convened to consider whether or not a Child Protection Plan should be put in place.

Most of the professionals favoured a CPP, concluding that the child was subject to neglect, although an education monitoring officer took the view that it was too strong a measure as there was no risk of significant harm to the claimant. The first aim of the plan was to seek a second opinion. However, the CPP was ultimately withdrawn because agreement was reached on a way forward regarding medical treatment (a gastrostomy was performed).

Nevertheless, the mother continued the claim for judicial review with the aim of overturning the original decision to put a CPP in place because of the stigmatising impact of that decision. The claimant contended that:

(a) The aim of resolving a dispute regarding medical treatment was not a permissible purpose of a Child Protection Plan

(b) That the local authority had not properly considered whether the child was suffering or was likely to suffer significant harm

(c) That the decision was irrational because there was no basis for concluding that the parents had neglected the child.

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HELD: The claim was upheld. The parents had done all they reasonably could to seek a second opinion. The wide discretion afforded to local authorities in child protection matters did not extend to the imposition of a Child Protection Plan under s.47 powers for the purpose of resolving a disagreement about medical treatment where there was no evidence of neglect on the part of the parents. The court additionally made a declaration that the effect of the original decision was void, in order to remedy potential impact on the child and parents of the Child Protection Plan having been imposed.

ANALYSIS: This case is a useful reminder for local authorities of the importance of legal literacy regarding the statutory basis of their decisions. There is an understandable tendency to become so focussed on what practitioners are trying to achieve (and believe to be in the best interests of a child or vulnerable adult) that the team fails to stop and consider the extent of the legal powers on which their actions are based. In this case, the local authority was essentially seeking to go beyond the powers which were actually available to it to influence the situation. The local authority could have continued to be involved through s.17 powers, on the grounds that the child was a child in need, in order to continue to attempt mediation of the dispute between the parents and the NHS trust, and to seek a resolution in the interests of the child working collaboratively with the parents who were engaging with services and seeking to resolve the situation themselves. The NHS could have issued proceedings under the inherent jurisdiction of the High Court, on the basis that the child’s welfare required the implementation of the plan and that the parent’s refusal of the medical treatment was not in the best interests of the child.

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