Comment: What has ‘Martin’ won?

By a majority of 2-1, the Court of Appeal has ruled that the Director of Public Prosecutions’ Policy on prosecuting cases of assisted suicide does not allow professionals such as doctors, nurses, carers and social workers to foresee the consequences of providing such assistance. The DPP has therefore been asked to revise the Policy. He has however announced his intention to appeal to the Supreme Court.

In the Policy, a group of factors in favour of prosecution are designed to ensure that assistance in suicide remains an activity carried out by inexperienced individuals without the open assistance of professionals or amateur organisations (as in Switzerland):

(11) the suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication;

(12) the suspect gave encouragement or assistance to more than one victim who were not known to each other;

(13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance;

(14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care;

(16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

The problem highlighted by counsel for ‘Martin’ at [132] is that those acting in a professional capacity who would therefore engage one or more of these factors in favour of prosecution, may also engage many or all of the factors against prosecution, which are:

(1) the victim had reached a voluntary, clear, settled and informed decision to commit suicide.

(2) the suspect was wholly motivated by compassion.

(3) the actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance.

(4) the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.

(5) the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide.

(6) the suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

The majority of the Court of Appeal was persuaded that:

it is not sufficient for the Policy merely to list the factors that the DPP will take into account in deciding whether to consent to a prosecution under section 2(1).  A list of factors which contains no clue as to how the discretion to grant or withhold consent will be exercised is not sufficient to meet the requirements of Article 8(2). . . . If a list of relevant factors does not enable the person concerned to foresee, to a degree that is reasonable and adequate in the circumstances, the consequences of his action, then the Article 8(2) requirement is not satisfied.

In the Interim Policy, a subset of each list of factors was designated as “carry[ing] more weight than the other factors” in most cases. In the Final Policy, the designation of some factors as having greater weight was dropped. The Court of Appeal now wants a revised version of the Policy to “give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care.” Of course the DPP’s answer to this request may be that this factor carries significant weight, thereby further discouraging healthcare professionals from providing any assistance in suicide. The Court of Appeal thus recognises that the Policy may be changed to discourage the very assistance ultimately sought by Martin (at [137]).

How might the Policy be changed?

If the Court of Appeal’s decision is upheld by the Supreme Court (or if the DPP is not granted permission to appeal), how might the Policy be changed? The Divisional Court had quoted (at [130]) from the DPP’s evidence to the Commission on Assisted Dying:

it was important to distinguish between as it were one off acts of support or compassion and those that were engaged in the delivery of professional services or a business that would routinely… bring them into conflict with the law, because of the broad prohibition on assisted suicide.

This might eventually mean that ‘Martin’ would need to seek assistance only from individuals who have never before been involved in providing such assistance. It would also ensure that organisations like Dignitas could not be established in England and Wales.

How should the Policy be changed?

The advantages of open medical involvement in assisted suicide are manifold, and include a lower risk of botched suicides and suffering during the suicide or attempted suicide (as illustrated in the Gilderdale case) and the possibility of screening for possibly hitherto unknown mental disorders including depression. At present, the expertise necessary to achieve a safe, peaceful assisted death is concentrated in healthcare professionals, and they are the main gatekeepers of the medications needed to accomplish this. A Policy under which those seeking assistance in dying cannot access this expertise, even in the form of advice, nor the appropriate medications, and where others are prevented from developing and disseminating such expertise, is undesirable. Allowing assistance from healthcare professionals only on a “one off” basis would frustrate the development of expertise in assessing the validity of requests for assistance. It should be possible to assign weight to the relevant factors that would not prevent compassionate, professional and expert assistance while still avoiding what the Lord Chief Justice has termed “profiteering” (at [184]-[186]).

News and comment: Divisional court decision in Nicklinson

The Divisional Court has today decided against the applications brought by Tony Nicklinson and ‘Martin’ challenging the law governing murder and assisted suicide. In a judgment which rejects almost every argument made on behalf of Mr Nicklinson and ‘Martin’, the Administrative Court reiterated earlier court decisions that the law in this context could only be changed by Parliament:

75. The reasons given in Bland and in Inglis for saying that it is for Parliament to decide whether to change the law on euthanasia are compelling and should be followed by this court. The reasons have to do with competence, constitutionality and control of the consequences.

76. As to competence, the subject is profoundly difficult and complex, raising a myriad of moral, medical and practical considerations. . . .

79. As to constitutionality, it is one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, but major changes involving matters of controversial social policy are for Parliament. . . .

84. A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

85. As to control of the consequences, it is hard to imagine that Parliament would legalise any form of euthanasia without a surrounding framework regarding end of life care and without procedural safeguards. . . .

86. It would be impossible for a court to introduce, still less monitor, any such regime.

87. For all of those reasons it would be wrong for the court to depart from the long established position that voluntary euthanasia is murder, however understandable the motives may be, unless the court is required to do so by article 8.

The arguments under Article 8 were dealt with relatively briefly. Although there was agreement that the applicants’ Article 8(1) rights were engaged, the court found that the decisions in Pretty were conclusive on the issue of Article 8(2):

121. The only general principles which the Strasbourg court has expounded are that the right of an individual to decide how and when to end his life is an aspect of the right of respect for private life within article 8 and that states have a wide margin of appreciation in this area. For reasons which I have already given, I am satisfied that the law maker in this area (euthanasia) should be Parliament, just as Lord Hope and others said in Purdy that Parliament should be the law maker in the area of assisted suicide. Furthermore, since it has been held by both the House of Lords and the Strasbourg court [in Pretty] that a blanket ban on assisted suicide is not incompatible with article 8, the same must apply with added force to the ban on voluntary euthanasia.

In relation to Martin’s case, which challenged the differential treatment of professionals who assist in suicide under the Director of Public Prosecutions’ policy on prosecution, the court held that the policy meets the requirements of Article 8 as mandated by the House of Lords in Purdy:

138. The DPP has in my judgment done what was required of him by the decision in Purdy and it would be wrong to require him to do more.

139. From the DPP’s policy statement, I believe that it would be clear to a person who, in the course of his profession, agreed to provide assistance to another with the intention of encouraging or assisting that person to commit suicide, that such conduct would carry with it a real risk of prosecution.

In an article in Legal Studies in 2010 on the DPP’s policy, I wrote:

The dangers sought to be addressed by the policy focus on the unscrupulous or even abusive family member or friend, and the healthcare professional or activist. The shift of focus away from the victim, and the desire to avoid the appearance of the creation of a regulatory regime, have opened the door to assisted suicide in cases which would not be permitted by most of the existing regulatory regimes, while exposing to the risk of prosecution those with much-needed expertise and those who agree with the victim’s decision.

Unsurprisingly, the policy begins with the reassurance that ‘only Parliament can change the law on encouraging or assisting suicide.’ While Parliament has been unwilling to undertake formal legal change on assisted suicide, informal legal change has been accelerated by the House of Lords’ surprising decision in Purdy, coupled with a DPP willing to create an expansive policy covering all assisted suicides rather than just those which take place in another more permissive jurisdiction. The DPP has done so by implicitly describing (albeit imperfectly through the use of factors for and against prosecution) a class of assisted suicides which are permissible.

In England and Wales, we are now in uncharted territory, with a reluctant legislature, little guidance from the courts and an opaque process of informal legal change by prosecutors.

Lord Justice Toulson was keen to rebut this contention (which had also been put forward by the Commission on Assisted Dying, as quoted in paragraph 135 of the judgment). Instead, he asserted that the factor-based approach lay on the right side of an important “constitutional boundary”:

143. . . . For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.

According to Toulson LJ, it is therefore the very imperfectness of the DPP’s policy which prevents him from having usurped his authority. And yet in Purdy, Lord Hope asserted that “it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.” (para. 55) This suggests that the policy could have identified “a class that requires special treatment”.

Overall, though, the court’s message is clear. This is not a matter for the courts, but only for Parliament. The unusual step taken in Purdy must be seen as an isolated instance of judicial activism centred on the precise requirements of Article 8(2). For further legal change, unless the higher courts are more sympathetic to developing the defence of necessity, Mr Nicklinson and Martin will need to look to Parliament, which seems unlikely to take such a step.

Addendum: One further interesting aspect of this decision is the extent to which it cites and relies on the report of the Commission on Assisted Dying, chaired by Lord Falconer and evidence given to it, including evidence given by the Director of Public Prosecutions. Although the Commission was independent of government and Parliament, its report seems to have influenced the court on a number of points (see, eg, paragraphs 24, 37-38, 76-77, 85, 130-133, 135).

News and comment: Forced treatment in cancer patient’s best interests

In DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), Wall P. ruled that it would be lawful to impose treatment on an incompetent cancer patient in her best interests, despite her apparent dissent and lack of co-operation stemming from phobias of hospitals and needles. PS has been diagnosed with endometrial cancer.

PS has “a significant impairment in intellectual functioning as a consequence of a learning disability” and does not pass the test of capacity in ss. 2 and 3 of the Mental Capacity Act 2005. The medical evidence is overwhelming that the surgical procedure (hysterectomy and bilateral salpingo-oophorectomy) would be in PS’s best interests.

Wall P. held:

[19] I am further satisfied, given her hospital and needle phobia, that it may well be necessary to sedate PS in order to convey her to hospital, and that the risks of sedation in these circumstances have been appropriately addressed by the Trust. The need for such sedative treatment will only arise if persuasion fails, and I am accordingly satisfied that it is necessary for the trust to authorise such treatment as being in PS’s best interests, and to use force if necessary to sedate her and convey her to hospital.

[20] In my judgment, it follows from paragraphs 11 to 14 above, that it will be necessary to detain PS in hospital during the period of post-operative recovery. After mature consideration, the Official Solicitor, on PS’s behalf, came to the view that it was not necessary to invoke the Deprivation of Liberty Provisions under Schedule 1 of the Act. I agree with that analysis. If it is in PS’s interests (as it plainly is) to have the operation, it is plainly in her interests to recover appropriately from it.

It is not only the treatment that must be in PS’s best interests under the MCA, but the sedation and/or force needed in order to perform it. In other words, sedative and forcible treatment must be in the patient’s best interests. It is possible for a treatment to be in an incompetent patient’s best interests, but for forcible treatment not to be; this is the most charitable explanation of Sir Stephen Brown P.’s decision in Re D (Medical Treatment: Mentally Disabled Patient) [1998] 2 FLR 22 that continued dialysis would no longer be in the best interests of an incompetent man who was unable to co-operate with his treatment (see Andrew Grubb’s commentary on Re D at (1998) 6 Med L Rev 103 (Athens login required)). A clear statement of this principle will have to await a case with less time pressure (see, for example, Trust A and Trust B v H (An Adult Patient) [2006] EWHC 1230, [27] (Fam) making a similar point in the context of the use of restraint). The gist of the present judgement is that the surgery is so overwhelmingly in PS’s best interests that the use of sedation and force needed to achieve this–which has been carefully considered by a multi-disciplinary team–is also in her best interests.

This story is on the front page of the Telegraph tomorrow.

Update on 5 August 2010: I have posted a comment criticising a rather misleading blog post about this case on Bioethics Forum.

News and Comment: first application of DPP’s Final Policy on assisted suicide

In the first case in which the DPP’s Final Policy on Prosecutions for Assisted Suicide has been applied, the DPP has decided that it would not be in the public interest to prosecute Caractacus Downes, the son of Sir Edward and Lady Joan Downes.

In July 2009, the conductor Sir Edward and his wife Lady Joan ended their lives at the Dignitas clinic in Zurich. Sir Edward was described as “almost blind and increasingly deaf” in a statement released by the couple’s children, while Lady Joan was described as “terminally ill”.

Following a police investigation, senior Crown Prosecution Service prosecutors determined that no public interest determination was necessary in relation to the couple’s daughter, Boudicca — who lives in Rome and met her parents and brother in Zurich — as “there is no evidence that she undertook any act in England and Wales that could have assisted her parents in committing suicide.”

The CPS found that the couple’s son, Caractacus, had booked a hotel room in Switzerland for his parents before leaving England with them and accompanying them to Zurich.

“We have considered carefully whether these acts can properly be characterised as assistance for the purposes of section 2(1) of the Suicide Act 1961. Whilst we recognise that some may take a different view, we are satisfied that, taken together, such acts are capable of constituting assistance. As Mr Downes fully accepts that he undertook those acts, there is sufficient evidence to provide a realistic prospect of conviction for an offence contrary to section 2(1) of the Suicide Act 1961 in accordance with the Full Code Test, as set out in the Code for Crown Prosecutors (the Code).”

Thus the CPS then considered whether such a prosecution would be in the public interest, applying the factors from the Final Policy:

“With regard to factors tending in favour of prosecution, it is clear that both Sir Edward and Lady Downes were able to undertake the acts that Mr Downes undertook on their behalf.

However, with regard to factors tending against prosecution, it is also clear that Sir Edward and Lady Downes had each reached a voluntary, clear, settled and informed decision to commit suicide.

In the context of those decisions and the steps taken by Sir Edward and Lady Downes to give effect to their decisions, the actions of Mr Downes, although sufficient to come within the definition of the offence, were very much only of minor assistance.

The evidence and information available indicates that Mr Downes was wholly motivated by compassion.

The police have confirmed that Mr Downes reported his parents’ suicide to them through his solicitor and that he fully assisted them in their enquiries into the circumstances of his parents’ suicide and his part in providing assistance.

There is information to suggest that Mr Downes has benefited financially from the death of his parents as a result of their wills. It might be said, as a result, that it is difficult to conclude that he was wholly motivated by compassion in giving his parents the assistance that he did.

The relationship between compassion and financial gain is considered in paragraph 44 of the Policy. There, it is recognised that a suspect may gain some benefit from the resultant suicide of the victims. The Policy states that the critical element to consider is the motive behind the suspect’s act. If it is shown that compassion was the only driving force behind his actions, the fact that the suspect may gain some benefit will not usually be treated as a factor tending in favour of prosecution.

Having reviewed all the available information, we have concluded that this is a case where the only driving force behind Mr Downes’ actions was compassion. Accordingly, we do not regard the fact that he stands to gain financially in accordance with the terms of his parents’ wills as a factor tending in favour of prosecution in this case.

Having assessed the public interest factors in accordance with the Code for Crown Prosecutors and the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, we are sure that the public interest factors tending against prosecution outweigh those tending in favour. As a result, consent has not been given to the bringing of a prosecution against Mr Downes for his part in the suicide of his parents.”

The decision is unsurprising, given the large number of similar cases in which no prosecution has been brought. It is interesting, though, that no mention was made by the DPP of factors 4 and 5 against prosecution:

4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;

5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;

As I have recently written in the Solicitors Journal, these two factors

“encapsulate an idealised scenario that involves an unwilling ‘suspect’ and a determined ‘victim’ . . .

No reasons for the inclusion of these factors have been provided, although they were supported by two thirds of consultation respondents.

What if the suspect is fully supportive of the victim’s decision, recognising that the victim has reached his or her own decision and agreeing that it is the right course of action for him or her in the circumstances? Does this make prosecution more in the public interest than if the suspect is ‘reluctant’ and sought to ‘dissuade’ the victim? Factor 4 envisages the decision to seek assisted suicide as an unwise or irrational decision from which the person should be dissuaded, or at least suggests that this is how the ideal suspect should react to the decision. The inclusion of these two factors seems to prescribe a certain kind of emotional reaction on the part of a family member or friend to the victim’s condition; for example, not accepting a terminal diagnosis, or wanting the person to remain alive as long as possible.”

It will be worth watching whether these factors are omitted from further decisions on the application of the Final Policy. If they are applied in future cases, it will be interesting to see how this will work.

More difficult cases will undoubtedly emerge, including those where:

• the assisted suicide takes place within England and Wales

• the act of assistance is not a minor one

• a healthcare professional has provided assistance

In relation to the latter, a decision is expected next month in the case of Dr. Michael Irwin, who paid for his patient Raymond Cutkelvin’s flight to Zurich. Dr. Irwin was also involved in the earlier assisted suicide of Patrick Kneen.

Comment: BMJ blog misinformation about end of life decision-making in Belgium, the Netherlands and the UK

In a recent blog post, Tony Delamothe, a Deputy Editor of the BMJ, reporting on a speech made on assisted dying by Lord Harries, the former Bishop of Oxford, stated that:

in Belgium apparently anyone over 18 can request it [assisted dying], regardless of underlying condition

In Belgium, the “patient [must be] in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident” (Belgium, Act on Euthanasia of May 28 2002 (2003) 10 Eur. J. Health L. 329, s.3§1).

Further, Delamothe, and presumably also Lord Harries whose views he is recounting, confuses non-voluntary euthanasia with involuntary euthanasia when discussing the Dutch experience. Euthanasia is voluntary when it is ‘carried out at the request of the person killed.’  Euthanasia is ‘involuntary when the person killed is capable of consenting to her own death, but does not do so, either because she is not asked, or because she is asked and chooses to go on living.’  Non-voluntary euthanasia occurs when the individual is incompetent to consent to or refuse euthanasia and has made no prior decision. (Peter Singer, Practical Ethics (2nd ed.) (Cambridge: Cambridge Univ. Press, 1993) 176, 179). Dutch evidence of ‘termination of life without request’ almost entirely represents non-voluntary rather than involuntary euthanasia:

In the past, incidental cases had been found in which there had been no discussion with a competent patient, but in 2001 no such cases were found ([there is] no data for 2005). (Griffiths, Weyers and Adams, Euthanasia and the Law in Europe (Hart, 2008) 181-182).

The number of reported cases of termination of life without request in the Netherlands in 2005 was 24. (The 2005 reporting rate was 80%.) These 24 cases are described as follows:

When life was ended without the explicit request of the patient, there had been discussion about the act or a previous wish of the patient for the act in 60.0% of patients, as compared with 26.5% in 2001. In 2005, the ending of life was not discussed with patients because they were unconscious (10.4%) or incompetent owing to young age (14.4%) or because of other factors (15.3%). Of all cases of the ending of life in 2005 without an explicit request by the patient, 80.9% had been discussed with relatives. In 65.3% of cases, the physician had discussed the decision with one or more colleagues. (van der Heide A, Onwuteaka-Philipsen, Rurup ML, et al. End-of-life practices in The Netherlands under the Euthanasia Act. N Engl J Med (2007) 356:1957).

Finally, the post simply accepts an outdated account of the role of the doctrine of double effect in palliative care. Describing Lord Harries’ lecture, Delamothe writes that “his church accepts the principle of “double effect” – ie it’s legitimate to give patients large doses of morphine to relieve their suffering, even if this hastens their death. (Intentions, not outcome, are apparently crucial here.)” Later, he recounts Lord Harries’ asking “does the public really understand what palliative care can offer? Do they know that it’s legitimate for doctors to give them large doses of morphine to relieve their suffering, and that perhaps a third of (?cancer) deaths are hastened in this way?” Delamothe fails to point out that the stretching of the criminal law to accommodate the doctrine of double effect is no longer necessary, and may, although well-intentioned, have unintended side effects. In a review of the medical literature worldwide, Sykes and Thorns conclude that:

The doctrine of double effect is used as an ethical justification for the specific risk of foreseeable life shortening as a result of a medical treatment. However, we suggest that there is no evidence that the use of opioids or sedatives in palliative care requires the doctrine of double effect as a defence. We have specifically examined the role of this doctrine in relation to symptom control and found that in 238 patients in a specialist palliative-care unit (89% receiving strong opioids and 48% receiving sedation) there was no evidence that that the doctrine needed to be invoked in relation to any morphine therapy. . . . Thus, although the doctrine is a valid ethical device, it is, for the most part, irrelevant to symptom control at the end of life. To exaggerate its involvement perpetuates a myth that satisfactory symptom control at the end of life is inevitably associated with hastening death. The result can be a reluctance to use medication to secure comfort and a failure to provide adequate relief to a very vulnerable group of patients. (Sykes Nigel; Thorns Andrew. The use of opioids and sedatives at the end of life. The Lancet Oncology 2003;4(5):312-8, 317.)

In addition, the most recent UK evidence is that in 2007-2008, 22.5% of all cancer deaths and 17.1% of all deaths involved an end of life decision to alleviate symptoms with estimated ‘double effect’ (Clive Seale. End-of-life decisions in the UK involving medical practitioners. Palliative Medicine, Vol. 23, No. 3, 198-204 (2009).).

Comment: parental disagreement on withdrawal of life-sustaining treatment from an incompetent child

As I wrote earlier, the Baby RB case is not quite as unique as contended by the Guardian and other media outlets. Channel 4 News claims that:

This is the first time the courts have had to decide on the life of a child with no evidence of brain damage.

This is clearly wrong, in light of the two SMA cases I discussed earlier.

However, the Baby RB case is perhaps unique in a different way. While the courts have dealt with parental disagreement over medical treatment for a child, I believe this is the first such case involving life-sustaining treatment. Generally, the consent of one parent (more accurately, one person with parental responsibility) to a particular treatment (or withdrawal of treatment) is sufficient to make that action lawful. (Children Act 1989, s.2(7)).

In Re J (child’s religious upbringing and circumcision) [1999] EWCA Civ 3022, [32] the Court of Appeal held that:

The decision to circumcise a child on ground other than medical necessity is a very important one; the operation is irreversible, and should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child.

Butler-Sloss P. went on to describe

a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by a one-parent carer although she has parental responsibility under section 2(7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court. Sterilisation is one example. The change of a child’s surname is another. Some of the examples, including the change of a child’s surname, are based upon statute (see section 13(1) of the Children Act).

Immunisation was added to this “small group of important decisions” in Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148. The Departmental of Health has also suggested that

It is possible that major experimental treatment, where clinical opinion is divided, might also come into this category, although such a case has not yet come to court. (Seeking consent: working with children (2001), p.19)

Jonathan Montgomery proposes that organ transplantation, termination of pregnancy and cosmetic surgery should also come within this category (Health Care Law, 2nd edition, p.298).

What about the withdrawal of life-sustaining treatment from an incompetent child? I would argue that in any such case in which there is serious disagreement between someone with parental responsibility and the medical team treating the child, the matter should be brought to court for an assessment of the child’s best interests, given the importance of such a decision:

There can be no doubt that the best course is for a parent of a child to agree on the course which the doctors are proposing to take, having fully consulted the parent and for the parent to fully understand what is involved. That is the course which should always be adopted in a case of this nature. If that is not possible and there is a conflict, and if the conflict is of a grave nature, the matter must then be brought before the court so the court can decide what is in the best interests of the child concerned. Faced with a particular problem, the courts will answer that problem. (R. v. Portsmouth Hospitals NHS Trust (ex parte Glass) [1999] EWCA Civ 1914).

This would seem to apply whether, as in most cases which come to court, both parents disagree with the medical recommendation, or whether, as in the Baby RB case, one parent agrees and the other disagrees. In other words, decisions about the withdrawal of life-sustaining treatment for an incompetent child do fall into the special category of important decisions for which parental agreement is needed.

News and Comment: High Court to decide on withdrawal of treatment from baby

The High Court has been asked to decide on the best interests of RB, a one-year old child with congenital myasthenic syndrome (CMS). RB’s mother is supporting the NHS Trust’s application to withdraw life-sustaining treatment from RB, while his father opposes the application.

In such cases, a balancing approach is used by the court, looking at the child’s quality of life:

The judge must decide what is in the child’s best interests. In making that decision the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the patient (In re J [1991] Fam 33 [Athens login required]). There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable (In re J). The term “best interests” encompasses medical, emotional, and all other welfare issues (In re A [2000] 1 FLR 549 [Athens login required]). The court must conduct a balancing exercise in which all the relevant factors are weighed (In re J) and a helpful way of undertaking this exercise is to draw up a balance sheet (In re A).

Portsmouth Hospitals NHS Trust v Wyatt and another [2005] EWCA Civ 1181, [87].

In earlier cases, the test adopted was that treatment should be provided unless the child’s life post-treatment would be “intolerable” (Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421, 1424 (Dunn LJ, CA) [Athens login required]; Re J [1991] Fam 33, 55 (Taylor LJ)) [Athens login required]. The test of intolerability has since been abandoned, in favour of the balancing approach described above (Burke [2005] EWCA Civ 1003, [62]-[63]; Portsmouth Hospitals NHS Trust v Wyatt and another [2005] EWCA Civ 1181, [76].)

On the RB case, the Guardian is reporting that:

If the hospital succeeds in its application, it will be the first time a British court has gone against the wishes of a parent and ruled that life support can be discontinued or withdrawn from a child who does not have brain damage.

This assertion relies on a very fine distinction (between withdrawal, and withholding following withdrawal) made by Holman J. in An NHS Trust v B and others [2006] EWHC 507, [101]-[102]. In that case, Holman J. ruled in favour of continuing ventilation (against the recommendation of the NHS Trust) of MB, aged 18 months, who was suffering from type 1 spinal muscular atrophy (SMA):

M has age appropriate cognition, and does continue to have a relationship of value to him with his family, and does continue to gain other pleasures from touch, sight and sound. . . .  It is impossible to put a mathematical or any other value on the benefits. But they are precious and real and they are the benefits, and only benefits, that M was destined to gain from his life. I do not consider that from one day to the next all the routine discomfort, distress and pain that the doctors describe (but not the ones I have now excluded) outweigh those benefits so that I can say that it is in his best interests that those benefits, and life itself, should immediately end. On the contrary, I positively consider that as his life does still have benefits, and is his life, it should be enabled to continue, subject to excluding the treatment I have identified.

In that case (at [11]), Holman J. asserted the uniqueness of the case before him:

There have been legal cases and decisions in which approval has been given for the withdrawal of life support from, followed by immediate death of, brain dead or severely brain damaged children or patients. And there have been legal cases and decisions (of which the case of Charlotte Wyatt is an example) in which advance approval has been given not to embark upon (i.e. to withhold) forms of treatment or life support, if later needed, if the condition of a child is very poor. So far as I am aware, no court has yet been asked to approve that, against the will of the child’s parents, life support may be withdrawn or discontinued, with the predictable, inevitable and immediate death of a conscious child with sensory awareness and assumed normal cognition and no reliable evidence of any significant brain damage.

Holman J. then went on to distinguish another case involving type 1 SMA, Re C (a minor) (medical treatment) [1998] 1 FLR 384 (Athens login required), in which Sir Stephen Brown (the then President of the Family Division) held that it was in the 16 month old child’s best interests “that she be taken off ventilation and that it should not be reintroduced if she should suffer a further respiratory arrest.” Holman J. explained the distinction between the two SMA cases as follows (at [13]):

She [C], like M, was conscious. Further, she was able to recognise her parents and to smile. However, unlike M, she was only on intermittent positive pressure ventilation. The doctors considered, and the parents agreed, that she should be weaned off that ventilation before she became fully dependant upon it. The issue was whether, if or when she suffered a respiratory arrest, positive pressure ventilation should be restarted. The parents sought an order that it should be, but Sir Stephen Brown P declined to grant one, in part because of the well established principle that a court will not order a doctor to undertake a course of treatment which the doctor is unwilling to do; but also because Sir Stephen expressly held that it was in the best interests of the child not later to reimpose ventilation if needed. Since the doctors considered that a respiratory arrest would be inevitable the case is very close to the present one. But it did not involve or contemplate the immediate death of the conscious child; and the actual withdrawal of intermittent ventilation was agreed to, and supported, by the parents.

I’m not entirely convinced by this distinction. Is it substantial enough to bear the weight placed upon it by the Guardian? Certainly the case of RB is not as unique as the Guardian suggests.

It is always difficult to assess the best interests of a baby when deciding whether treatment should be continued or withdrawn. The factors which were important for Holman J. in MB were the existence of an interactive relationship with the parents, and the capacity to experience pleasure. Based on the media reports of the RB case, these factors appear likely to play a significant role in the High Court’s decision.