Withdrawal of life-sustaining treatment: Fixsler

In June, we noted the judgment in Manchester University NHS Foundation Trust v Fixsler & Ors [2021] EWHC 1426 (Fam), in which the parents of Alta Fixsler, a two-year-old born with catastrophic brain injury who was on life support at the Royal Manchester Children’s Hospital Paediatric Intensive Care Unit, contested the Trust’s application to the Court to discontinue her treatment. The Fixslers were Chasidic Jews and Israeli citizens, and they sought to take Alta to Israel for continued treatment and the exploration of long-term ventilation at home in Israel in due course. If the court concluded that it was in her best interests for life-sustaining treatment to be withdrawn, they wanted that step to be taken in Israel.

At that hearing, MacDonald J concluded that it would be in her best interests for life-sustaining medical treatment to be withdrawn and for the Trust to implement a palliative care regime and the Trust’s application was therefore granted. The matter returned to the Family Court in October, however. In Manchester University NHS Foundation Trust v Fixsler & Ors [2021] EWHC 2664 (Fam), in a further dispute between the parties:  the location at which Alta’s life support should be withdrawn. The parents contended that if life-support was to be withdrawn, it should be done at the family home, while the Trust contended that the step should be taken either at the Paediatric ICU where Alta was being treated or at an identified children’s hospice. The Children’s Guardian supported the Trust [6]

Following the earlier judgment, the parties engaged in a period of negotiation about the precise terms of the order consequent upon the decision of the Court. The Order agreed between the parties and approved by the Court provided as follows:

IT IS DECLARED THAT:

  1. By reason of her age and minority, Alta Fixsler (‘the Child’) lacks competence and capacity to give her consent to medical treatment.
  2. It is not in the Child’s best interests for life-sustaining treatment, including mechanical ventilation, to be continued. It is in her best interests and lawful that she should be moved to a palliative care pathway such that:
  3. Mechanical ventilation should be withdrawn; and

There shall be clearly defined limits on the treatment to be provided to her after ventilation is withdrawn; and

c. The withdrawal of mechanical ventilation shall take place in accordance with the pathway at Appendix 1 to this Order.

IT IS ORDERED THAT:

1. The Applicant and/or the doctors having responsibility for the treatment of the Child shall be at liberty to treat her in accordance with their clinical discretion, subject to the timescales referred to in the appendix, including any decision they make as to removal of ventilatory support.

2. The Applicant and/or doctors and nurses treating her shall generally provide such treatment and nursing and palliative care as may be appropriate to ensure that she suffers the least pain and distress.

3. Any witness statements and reports filed in these proceedings and any Court Orders made in the course of these proceedings shall be placed in the Child’s medical records.

4. If any issue arises in respect of withdrawal of life-sustaining treatment including ventilatory support, the parties shall have permission to apply to Court for further directions. Such applications should be heard before Mr Justice MacDonald if he is available.

5. The Second and Third Respondents are refused permission to appeal.

6. Permission to the parents to disclose a copy of this order, its appendix, and the palliative care pathway document to solicitors in Israel and hospitals in Israel in connection with their (renewed) application for permission to appeal.

7. There is no order as to costs” [13].

The Order further provided, inter alia, as follows:

“2. Withdrawal shall take place:

a. Either at the hospital or at a hospice or at the First Respondent’s home according to:

i. the Second and Third Respondents preference; and

ii. whether withdrawal at a particular location can be arranged” [14].

The parents appealed that Order to the Court of Appeal, which dismissed their appeal in Fixsler v Manchester University Foundation NHS Trust [2021] EWCA Civ 1018. They then sought permission to appeal to the Supreme Court but were refused permission both by the Court of Appeal and by the Supreme Court itself [17].

At this latest hearing, “based on the evidence before the court, and applying the legal principles that comprise the law in this jurisdiction”, MacDonald J was satisfied that it was in Alta’s best interests for treatment to be withdrawn at the children’s hospice [59]. While he was satisfied that Articles 8 and 9 ECHR were engaged,

“the clear legal position is that where there is a conflict between a Convention right or rights and Alta’s best interests, it is her best interests that are determinative. Whilst religious obligations of the parents and wider Orthodox Jewish community are very important, they remain subordinate to Alta’s clinical and welfare needs prior to, during and following extubation” [62].

Likewise, though the views of the parents were very important, they were subordinate to Alta’s best interests [63], and the parents accepted that, as matters stood, they were not equipped to meet her clinical needs [68].

In conclusion, while fully recognising that the parents, and others in the wider community, would struggle to understand his decision, it was Alta’s welfare that was his paramount consideration [83], and he quoted with approval the decision of the US Supreme Court in Prince v Massachusetts (1944) 321 US 158, in which it stated that “neither rights of religion nor rights of parenthood are beyond limitation” [86]:

“Finally, I remain acutely conscious of the fact that the original decision of this court is incompatible with the deeply held Judaic religious beliefs of the parents and that, within that context, they will consider that the option preferred by this judgment further obstructs their religious obligations. However, it remains the position that, as would be the case were the court concerned with the religious principles observed by Christianity, Islam, Hinduism, Buddhism or any of the world’s established religions, it is not religious law that governs the decision in this case but the secular law of this jurisdiction. Within this context, the court has sought in the decision it has made to accommodate the religious beliefs and obligations of the parents insofar as it has been possible to do so within the context of Alta’s welfare being the court’s paramount consideration [87: emphasis in original].

Cite this article as: Frank Cranmer, "Withdrawal of life-sustaining treatment: Fixsler" in Law & Religion UK, 20 December 2021, https://lawandreligionuk.com/2021/12/20/withdrawal-of-life-sustaining-treatment-fixsler/

1 thought on “Withdrawal of life-sustaining treatment: Fixsler

  1. This case makes me think of the case of Aysha King in 2014, where the High Court refused the parents of the child Aysha King permission to move him to the Czech Republic to receive proton beam therapy for a brain tumour. The parents snatched their child and were intercepted in Spain and briefly imprisoned before the child was allowed to continue to Prague where he was treated with proton beam therapy. In 2016 the NHS agreed to pay for children with Aysha’s condition to receive proton beam therapy overseas. As at 2018, Aysha King was alive and well and free of all signs of cancer. The Court’s decision, although taken with best intentions, would probably have prevented this best outcome for the child.

    This raises the issue of whether any court should properly hold that it is in a child’s best interests to withdraw life-sustaining treatment where the possibility exists in another country where medical research might reasonably be believed to offer hope of an extension of life.

    This may ultimately need to be a political decision, not a judicial one, and I am sure that all those involved were deeply affected by making life and death decisions.

    There are massive moral and religious issues in play here but we should beware of expecting doctors whose decisions are being challenged, and judges to play God.

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