Alan Bates instructed on behalf of Tafida Raqeeb as EU law challenge begins to hospital’s refusal to transfer her to Italy

09 Sep 2019 | by Monckton Chambers

The High Court has today begun hearing a judicial review challenge brought on behalf of 5-year-old Tafida Raqeeb in reliance on EU free movement law.

Tafida is a patient at a London NHS hospital. She is in what is described by the hospital as a “minimally conscious state” after suffering serious injury to her brain injury in February as a result of a rare condition, arteriovenous malformation, where a tangle of blood vessels causes blood to bypass the brain tissue.

The doctors treating Tafida in London believe that there is no hope for improvement in Tafida’s condition and that life-sustaining ventilation should be withdrawn. Tafida’s parents disagree: their fervent wish, informed by their Muslim faith, is that ventilation be maintained. They wish to move Tafida to a specialist paediatric hospital in Italy which is willing to continue life-sustaining treatment. In Italy, life-sustaining treatment is normally maintained for patients who have not suffered brain stem death. The medical consensus is that Tafida’s life expectancy, if ventilation is maintained, could be 10-20 years.

The London hospital refused to co operate with arranging the transfer to Italy. It did so pending its own application to the High Court under the Children Act seeking a declaration that Tafida’s best interests would be for ventilation to be withdrawn, leading to her death. The hospital did not obtain an interim injunction or care order to prohibit the transfer. As a result of the hospital’s refusal to co operate with the transfer, Tafida remains in London and has not been transferred to Italy to receive treatment there in accordance with her parents’ wishes.

In the judicial review claim being heard from today, the legal team instructed by Tafida’s litigation friend to represent Tafida contend that the hospital’s refusal to transfer her to Italy was an unlawful infringement of her EU right to travel within the EU to receive services (Article 56 of the Treaty on the Functioning of the EU). They further argue that, insofar as the hospital trust’s reasons for refusal to co operate with the transfer was that Italy has different laws, and a different medico-ethical culture, in relation to the continuation of life-sustaining treatment, such reasons involve impermissible discrimination. As Italy is an EU country, Tafida’s human rights would not be jeopardised by transferring her to a specialist hospital in Italy, albeit that the Italian legal and medical systems are not identical to their UK counterparts in relation to their approach to ‘best interests’.

The judicial review claim will be heard on the first two days of a 5 day hearing, with the remaining days being reserved for the hearing of the hospital trust’s application for a determination as to Tafida’s best interests. The judge, Mr Justice MacDonald, is sitting as a judge of both the Administrative Court and the Family Division.

Monckton barrister Alan Bates is instructed on behalf of Tafida (acting through her litigation friend).

The case is attracting widespread media attention. See BBC News; Sky News; The Guardian.