III

Medical Law

1. The fundamental principle.

The fundamental principle, now long established, is that every person's body is inviolate: see Lord Goff of Chieveley in In Re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1, 72 E. The importance of this principle was emphasised by Lord Reid in S. v McC., W. v W. [1972] A.C. 24, 43 where he said:-

"There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. ... the real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d'etat but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions."

It follows that:-

"It is well established that, as a general rule, the performance of a medical operation upon a person without his or her consent is unlawful, as constituting both the crime of battery and the tort of trespass to the person ..." per Lord Goff in Re F. at p. 71 D.

2. The principle of autonomy and the consequence of an adult patient's refusal to consent to treatment.

In Re F. Lord Goff at p. 73 C endorsed the libertarian principle of self-determination which, to adopt the words of Cardozo J. (in Schloendorff v Society of New York Hospital (1914) 105 N.E. 92, 93) recognised that:-

"Every person being of adult years and sound mind has a right to determine what shall be done with his own body ..."

The patient's right of veto is absolute:-

"This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent ..." per Lord Donaldson of Lymington M.R. in In Re T. (Adult: Refusal of Treatment) [1993] Fam. 95, 102, following Sidaway v Guardians of Bethlem Royal Hospital and Maudsley Hospital [1985] A.C. 871, 904-905.

The principle was also recognised in Airedale N.H.S. Trust v Bland [1993] A.C. 789, and it might be useful to cite two passages:-

"It is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so ... To this extent, the principle of the sanctity of human life must yield to the principle of self-determination ... and for present purposes perhaps more important, the doctor's duty to act in the best interests of his patient must likewise be qualified": per Lord Goff at p. 864 C.

"Any invasion of the body of one person by another is potentially both a crime and a tort ... How is it that, consistently with the proposition just stated, a doctor can with immunity perform on a consenting patient an act which would be a very serious crime if done by someone else? The answer must be that bodily invasions in the course of proper medical treatment stand completely outside the criminal law. The reason why the consent of the patient is so important is not that it furnishes a defence in itself, but because it is usually essential to the propriety of medical treatment. Thus, if the consent is absent, and is not dispensed with in special circumstances by operation of law, the acts of the doctor lose their immunity ... If the patient is capable of making a decision whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue ...": per Lord Mustill at p. 891 F. (I have added the emphasis).

3. Treatment of the incompetent adult.

Where no one is capable of giving consent for an adult patient who does not have the capacity to give consent himself for whatever reason, Lord Goff in Re F. seized upon the fact that:-

"There exists in the common law a principle of necessity which may justify action which would otherwise be unlawful ..." p. 74 A.

The basic requirements, applicable to such a case of necessity, are that to fall within the principle:-

"... not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person", p. 75H.

4. The power to give proxy consent for a young child to undergo treatment.

The parents if they are married have this power: if they are not, it is the mother's.

"It is abundantly plain that the law recognises that there is a right and duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment ..." per Lord Scarman in Gillick v West Norfolk A.H.A. [1986] 1 A.C. 12, 184 G.

I have added the emphasis to show the close link between parental right and duty. Failure to perform the duty may be a culpable omission. Lord Scarman went on to note that the parental right derives from parental duty and that is recognised in the common law. He referred at p. 185 A to Blackstone's Commentaries, 17th Ed. (1830) Volume 1, Chs. 16 and 17 where Blackstone:-

"analyses the duty of parents as the "maintenance ... protection, and ... education" of the child: p. 446. He declares that the power of parents over their children is derived from their duty and exists to enable the parent more effectively to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it": op. cit., p. 452.

The current law is contained in the Children Act 1989. Each of the parents, or the mother if she is unmarried, has parental responsibility over the child. That is defined, perhaps rather unsatisfactorily, in Section 3 of the Act in these terms:-

"(1) In this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."

So in the current law the right and the duty to give consent to medical treatment is an incident of parental responsibility vested in the parent.

5. The effect of the parents' refusal.

Since the parents are empowered at law, it seems to me that their decision must be respected and in my judgment the hospital would be no more entitled to disregard their refusal than they are to disregard an adult patient's refusal. To operate in the teeth of the parents' refusal would, therefore, be an unlawful assault upon the child. I derive this from In Re R. (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11 where Lord Donaldson of Lymington M.R. said at p. 22:-

"It is trite that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that consent. If he does so, he will be liable in damages for trespass to the person and may be guilty of a criminal assault."

There is, however, this important safeguard to ensure that a child receives proper treatment. Because the parental rights and powers exist for the performance of their duties and responsibilities to the child and must be exercised in the best interests of the child,

"... the common law has never treated such rights as sovereign or beyond review and control", per Lord Scarman in Gillick at p. 184 A.

Overriding control is vested in the court. This proposition is well established and has not been the subject of any challenge in this appeal. Because of the comment in the media questioning why the court should be involved, I add this short explanation. Long, long ago the sovereign's prerogative to protect infants passed to the Lord Chancellor and through him to the judges and it forms a part of the inherent jurisdiction of the High Court. The Children Act 1989 now contains a statutory scheme for the resolution of disputes affecting the upbringing of children. If a person having a recognisable interest brings such a dispute to the court, the court must decide it.

There are abundant examples of this happening. One such case is In Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1424. There a child who was born suffering from Down's Syndrome and an intestinal blockage, required an operation to relieve the obstruction if she was to live more than a few days. If the operation were performed, the child might die within a few months but it was probable that her life expectancy would be 20-30 years. Her parents, having decided that it would be kinder to allow her to die rather than live as a physically and mentally disabled person, refused to consent to the operation. The local authority made the child a ward of court and, when a surgeon decided that the wishes of the parents should be respected, they sought an order authorising the operation to be performed by other named surgeons. Templeman L.J. said at p. 1423/4:-

"On behalf of the parents Mr Gray has submitted very movingly ... that this is a case where nature has made its own arrangements to terminate a life which would not be fruitful and nature should not be interfered with. He has also submitted that in this kind of decision the views of responsible and caring parents, as these are, should be respected, and that their decision that it is better for the child to be allowed to die should be respected. Fortunately or unfortunately, in this particular case the decision no longer lies with the parents or with the doctors, but lies with the court. It is a decision which of course must be taken in the light of the evidence and views expressed by the parents and the doctors, but at the end of the day it devolves on this court in this particular instance to decide ..."

Dunn L.J. said at p. 1424:-

"I have great sympathy for the parents in the agonising decision to which they came. As they put it themselves, "God or nature has given the child a way out". But the child now being a ward of court, although due weight must be given to the decision of the parents which everybody accepts was an entirely responsible one, doing what they considered was best, the fact of the matter is that this court now has to make the decision. It cannot hide behind the decision of the parents or the decision of the doctors; and in making the decision this court's first and paramount consideration is the welfare of this unhappy little baby."

So it is that at this point we move into the realm of family law.

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