Report No. 196
2. Re J (a minor) (Wardship: medical treatment): 1990(3) All ER 930. (Lord Donaldson of Lymington MR, Balcombe & Taylor L.JJ.)
This was again a case of a ward of Court. One J, born prematurely, who suffered from severe brain damage and the brain tissue was irreplaceable. He was epileptic and the medical evidence was that he was likely to develop spastic quadriplegia, would be blind and deaf and was unlikely even to be able to speak or develop intellectual faculties. His life expectancy was uncertain but he was expected to die before late adolescence, although he could survive a few years.
He had been ventilated twice for long periods and treatment was both painful and hazardous. Further re-ventilation, doctors felt, would result in his collapse. Question before the Court was whether if breathing should stop, re-ventilation should be done or not?
The trial Judge, in parens patriae jurisdiction, directed treatment but held that he be not re-ventilated. The Official Solicitor appealed against withholding life saving treatment.
The appeal be dismissed in as much as the child suffered from physical disabilities so grave that his life would, from his point of view, be so "intolerable" if he were to continue living, that he would have chosen to die if he were in a position to make a sound judgment and in such situations, the Court could direct that "treatment without which death would ensue from natural causes, need not be given to the ward to prolong his life, even though he was neither on the point of death nor dying."
However, the Court could never permit termination of life by the taking of positive steps. In deciding whether to authorize that treatment need not be given, "the Court had to perform a balancing exercise in assessing the course to be adopted in the best interests of the child, looked at from his point of view and giving the fullest possible weight to his desire, if he were in a position to make a sound judgment, to survive, and taking into account "the pain and suffering and quality of life" which he would experience if life was prolonged and the pain and suffering involved in the proposed treatment.
Having regard to the invasive and hazardous nature of the re-ventilation, the risk of further deterioration if J was subjected to it and the extremely unfavourable progress with or without the treatment, it was in J's best interests that authority for re-ventilation be withheld.
Donaldson MR stated that the child who was a ward or could be treated medically in exactly the same way as one who is not medically fit, the only difference being that the doctors will be looking to the Court rather than to the parents for necessary consent. In allocating limited resources to particular patients, the fact that a child is or is not a ward of Court, is irrelevant. Balcombe LJ stated that the Court while exercising parens patriae jurisdiction of the sovereign, was not expected to adopt any higher or different standard than that which, viewed objectively, a reasonable and responsible parent would have taken.
Taylor LJ observed that in deciding against providing treatment, the Court must be satisfied to a high degree of probability that its decision is in the child's best interests; certainty of proof was not required.
Lord Donaldson observed that in most cases, this (stopping treatment) would be a matter to be discussed and decided by doctors in consultation with parents. That did not mean that parents could tell the doctors what to do, but they would have the right to withhold consent to treatment, subject to the right of the doctors to apply to the Court to make the child a ward of Court and to seek guidance from Court. (In the present case, there was difference of opinion between doctors and parents as to whether that treatment should be withheld).
He also held that in principle, neither the Court nor the parents could insist upon doctors that a particular treatment which the doctor found to be not suitable, should be given to the patient. The inevitable and desired result is that choice of treatment is in some measure a joint decision of the doctor, and the Court or parents.
He also said that, 'in an imperfect world, resources will always be limited and on occasion, agonizing choices will have to be made in allocating those resources to particular patient. He referred to Re C (a minor) (wardship: medical treatment) 1989(2) All ER 702 where a child was dying and no amount of medical skill or care could do more than a brief postponement of the moment of death.
Lord Donaldson referred to the decision of the Supreme Court of British Columbia in Re Superintendent of Family and Child Science and Dawson (1983) 145 DLR (3d) 610). In that case the child was severely brain damaged and the question was whether the child could be subjected to a 'simple' kind of surgical treatment which would ensure the continuation of his life or whether, when the parents did not consider it to be in the child's best interests as it would be a life of suffering, such surgery should not be done so that the child could die with dignity. He quoted the judgment of McKenzie J of the Supreme Court of British Columbia to the following effect:
"I do not think that it lies within the prerogatives of any parent or of this Court to look down upon a disadvantaged person and judge the quality of that person's life to be so low as not to be deserving of continuance. The matter was put in an American decisio.- Re Weberlist (1974) 360 NYS (2d) 783 (at 787) where the learned Asch J said:
"There is a strident cry in America to terminate the lives of other peopl.- deemed physically or mentally defective Assuredly, one test of a civilization is its concern with the survival of the 'unfittest', a reversal of Darwin's formulation. In this case, the Court must decide what its ward would choose, if he were in a position to make sound judgment."
This last sentence puts it right. It is not appropriate for an external decisionmaker to apply his standards of what constitutes a liveable life and exercise the right to impose death if that standard is not met in his estimation. The decision can only be made in the context of the disabled person viewing the worthwhileness or otherwise of his life in its own context as a disabled perso.- and in that context, he would not compare his life with that of a person enjoying normal advantages. He would know nothing of a normal person's life, having never experienced it."
Lord Donaldson clarified that what was in issue was not a right to impose death but a right to choose a course of action which would fail to avert death. The choice was that of the patient, if of full age and capacity, the choice was that of the parents or Court if, by reason of his age, the child would not be able to make the choice and it was a choice which must be made solely on behalf of the child and in what the Court or parents conscientiously believe to be "in his best interests".
He held that the Canadian Judgment should not be understood as advocating an absolutist approach. "In real life, there are presumptions, strong presumptions and almost overwhelming presumptions, but there are few, if any, absolutes".
He distinguished Re B (1981)(1) WLR 142) as a case where having regard to the suffering of the child from his birth with Downs's Syndrome and was a mongol, the parents, with great sorrow, came to the conclusion that it was not in the best interests of the child to continue his life. The parents did not view it from the point of view of the child, if capable of taking a decision. Hence, the burden shifted to the Court. Further in that case, there were differences in the opinions of the surgeons. The Court gave its consent for surgery as it considered it was not a case 'demonstrably so awful' or 'intolerable'. Lord Donaldson continued:
"We know that the instinct and desire for survival is very strong. We all believe in and assert the sanctity of human life. As explained, this formulation takes account of this and also underlines the need to avoid looking at the problem from the point of view of the decider but instead, requires him to look at it from the point of view of the patient.
This gives effect, as it should, to the fact that even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But 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 consummate benefit, giving the fullest possible weight to the child's and mankind's desire to survive".
Here, as regards J, the doctors were unanimous that any invasive procedure, such as introduction of a naso-gastric tube drips which have to be given and that constant blood sampling, would cause the child distress. Hence, discontinuance of life-support was held valid.