The court referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. The child suffered a condition which included the likelihood of periodic respiratory failure. The treating physician proposed that in that event, mechanical resuscitation would not be employed.
Held: The court upheld the first instance decision not to order anything to reverse the doctor’s recommendation. The test for whether treament should be discontinued was whether ‘the child in question, if capable of exercising sound judgment would consider the life tolerable’.
Lord Donaldson MR said: ‘it is sensible to define the relationship between the court, the doctors, the child and its parents.
The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion: see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment.
The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.
The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone.’ and
‘In Re B (supra) seems to me to come very near to being a binding authority for the proposition that there is a balancing exercise to be performed in assessing the course to be adopted in the best interests of the child. Even if it is not, I have no doubt that this should be and is the law . . This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but, even excepting the ‘cabbage’ case to which special considerations may well apply, it is not irrebuttable. As this court recognised in Re B account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself . . In the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child’s and mankind’s, desire to survive.’
Judges:
Lord Donaldson MR, Taylor LJ
Citations:
[1991] Fam 33, [1990] 3 All ER 930, [1991] 2 WLR 140
Jurisdiction:
England and Wales
Citing:
Applied – In Re B (A Minor) (Wardship: Medical Treatment) CA 1981
The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .
Cited by:
Cited – W Healthcare NHS Trust v KH and Others CA 17-Sep-2004
The patient was very severely disabled. She was a lady of 59 suffering from multiple sclerosis. She was not competent to make decisions about her own treatment. She was in a pitiful state, and had to be fed through a percutaneous gastronomy tube but . .
Cited – In re T (a Minor) CA 24-Oct-1996
C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver . .
Lists of cited by and citing cases may be incomplete.
Health Professions
Updated: 30 April 2022; Ref: scu.221444