A High Court judge is preparing to reconsider evidence in the case of a five-month-old baby who tried to breathe after being diagnosed as dead by doctors.
The parents recently lost a High Court fight when Mr Justice Hayden decided that doctors could lawfully stop providing life-support treatment to the boy, who is on a ventilator at a London hospital. But they mounted an appeal and argued they did not have a fair hearing.
Three Court of Appeal judges on Friday upheld their challenge and ordered a fresh trial before a different judge. Mr Justice Poole is due to begin reconsidering issues at a preliminary hearing in the Family Division of the High Court in London on Tuesday. A second trial is expected in the next few weeks.
Mr Justice Hayden had been asked to decide what moves were in the boy’s best interests by bosses at Guy’s and St Thomas’ NHS Foundation Trust, who are responsible for his care. The judge ruled that ventilation should be withdrawn and only palliative care provided. He said evidence showed the baby was dying and had a “complete absence of ability to benefit from treatment”.
The baby’s parents, who are of Bangladeshi origin and represented themselves at the trial before Mr Justice Hayden, said there should be a fresh hearing. A barrister representing the couple told a Court of Appeal hearing in London last week that Mr Justice Hayden should have adjourned the final High Court trial to give them time to find lawyers.
Appeal judges Lord Justice Singh, Lord Justice Baker and Lord Justice Phillips ruled in their favour and concluded that Mr Justice Hayden’s decision not to adjourn the trial was “unfair”. Lord Justice Baker said the couple, whose first language is not English, faced a “daunting” task in representing themselves at the High Court trial.
Judges heard that the baby had suffered a “devastating” brain injury and been declared dead in June, after doctors diagnosed him as being brain-stem dead. He remained on a ventilator because his parents were unhappy with the diagnosis and litigation had begun.
Lawyers representing the trust initially asked a judge to make a declaration of death. The boy started trying to breathe in early July, after a preliminary High Court hearing.
Specialists then rescinded “the clinical ascertainment of death” and trust lawyers asked Mr Justice Hayden to decide what moves were in the boy’s best interests.
Lord Justice Baker told the appeal hearing that evidence showed five brain stem tests had shown “no activity”. He said subsequently that the baby had “gasped” and further tests had shown there was brain stem activity in one respect.
Lord Justice Baker said the couple had lost their legal representation a few days before the High Court trial “through no fault of their own”.
Judges have heard that the couple were interviewed by police after evidence suggested their son had suffered what “appeared” to be “non-accidental injuries” to his brain and ribs. They were told that no charges had been brought but the couple remained under investigation.
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