Tafida Raqeeb v. Barts NHS Foundation Trust and Others [2019]: Bolstering the argument for mediation

Abstract

The Tafida Raqeeb case comprised both a judicial review and a determination of Tafida’s best interests. The judicial review concerned Barts Health NHS Trust’s (Barts) decision not to permit Tafida’s parents to transfer her to Gaslini Children’s Hospital (GCH) in Genoa, Italy. Barts requested that a judge declare that the proposed transfer was not in Tafida’s best interests. In the High Court, MacDonald J’s ruling on the judicial review element of the case was that Barts had not acted unlawfully. In the best interests determination, MacDonald J deemed that continued treatment was in Tafida’s best interests, hence Tafida’s parents would be permitted to transfer her to GCH. Although medical views of best interests tend to prevail in these types of cases, the Raqeeb case, like other previous cases where judges have found in favour of parents, demonstrates that the best interests test is not designed to override the wishes of parents, as its detractors allege, but is flexible enough to allow judges to weigh competing factors in making a determination. In the Raqeeb case, in the absence of clear evidence regarding pain and suffering, subjective factors were accorded more weight within the balancing exercise. I argue that the best interests test should be retained and that a reform affording parents a ‘right to try’ should not be adopted, as this may prolong the pain and suffering of some infants. Nonetheless, the Raqeeb case demonstrates the lack of dialogue between parents and clinicians, in some cases. It therefore bolsters the argument that mediation should be offered in these types of cases.