Local authority was right to apply to court regarding Do Not Resuscitate notice, High Court finds

In F (A Child) (Medical treatment) [2025] EWHC 3311 (Fam), Mr Justice McKendrick concluded however that “if NICE NG61 and the CYCAP and RESPECT forms provided guidance and posed the appropriate questions about local authorities who hold parental responsibility respectively, then the first respondent [NHS] Trust and the local authority would have carried out a proper consultation which would have led the applicant local authority to understand that resuscitation was not being offered and therefore the applicant need not exercise its parental responsibility to consent, or not, to treatment.”

He observed that the applicant local authority and the parents should have been informed, after appropriate consultation, that the resuscitation treatments were not being offered to F.

The case concerned an infant boy, (F), born in April 2025, then aged six months.

The local authority brought the application in circumstances where they had earlier issued care proceedings in respect of F (and his ten-year-old sibling).

In November 2025, District Judge Mitchell made a final care order in respect of both children. The care plan provided for F to be accommodated with foster carers and for contact to take place with his mother and father.

F was born with a profoundly disabling genetic condition. His treating clinicians and his parents agreed that, given his diagnosis and prognosis, an advanced care plan/RESPECT form would be agreed to record the agreed position that a “Do Not Resuscitate Notice” would be placed in F’s medical records.

The applicant local authority did not feel able to consent to this. The matter therefore came to court.

At a hearing later in November 2025, all parties were in agreement that the ‘Do Not Resuscitate Notice’ was in F’s best interests, and Mr Justice McKendrick was invited to make a declaration determining the same. However, he declined to do so.

He said: “The evidence in the form of an email from a clinician who had not assessed F for over three months was an insubstantial basis to underpin the relief sought, given the gravity of it and the consequences for F.

“Given F’s consultant planned to see him in clinic on 24 November 2025, I joined the first respondent NHS Foundation Trust as a party and directed F’s treating clinician to file and serve a detailed witness statement setting out F’s diagnosis, up to date prognosis and directed him to exhibit the advanced care plan with clarity in respect of the ceilings of treatment that the clinical team were proposing. I gave the first respondent permission to apply to vary or discharge the directions made.”

The matter was adjourned to a hearing in early December 2025.

At the adjourned hearing, the NHS Foundation Trust had complied with the directions made and filed witness statements from the lead consultant general paediatrician treating F and a witness statement from a consultant community paediatrician.

Mr Justice McKendrick acknowledged the unanimous clinical view was that F’s prognosis was “very poor”.

He added: “Importantly the mother and the father filed and served witness statements making clear they agreed with the clinical team.”

At the conclusion of the hearing in December, Mr Justice McKendrick made the following declarations:

“It is not lawful, being unethical, for [F] to be provided with the following treatments:

• Chest compressions
• Defibrillation
• Cardiac/ALS drugs (usually in conjunction with chest compressions)
• Intensive care admission.”

Asking whether the application needed to be made, he concluded: “On the first respondent Trust’s ultimate case, such treatment would never have been offered. However, none of that is set out in response to the questions posed in the CYCAP form. Nor was that the Trust’s own written evidence at the time.

"In my judgement the applicant local authority was right to apply Re C and apply to court. However, it does seem to me that if NICE NG61 and the CYCAP and RESPECT forms provided guidance and posed the appropriate questions about local authorities who hold parental responsibility respectively, then the first respondent Trust and the applicant local authority would have carried out a proper consultation (including with the parents) which would have led the applicant local authority to understand that resuscitation was not being offered and therefore the applicant need not exercise its parental responsibility to consent, or not, to treatment.

“Instead the applicant local authority (and the parents) should have been informed, after appropriate consultation, and in writing, with reasons, that the resuscitation treatments were not being offered to F. That would have led the applicant local authority to have considered whether such a decision was amenable to an application for judicial review, rather than an application of the High Court’s inherent jurisdiction to consider best interests.”

The judge noted that the National Institute for Health and Care Excellence (NICE) may wish to consider whether the NG 61 guidance, the CYCAP and RESPECT forms “require some revision to grapple with the situation presented here”.

Finally, he concluded: “In respect of the non-invasive ventilation and intraosseous access treatments, I decline to make any declarations. It is premature to consider whether these may be offered and if they are, whether they are in Fs best interests. This shall be a matter for the clinical judgement of the clinicians, as and when these issues may arise, in consultation with those who have parental responsibility.”

Lottie Winson