Report No. 196

(3) Re C (a minor) (wardship: medical treatment): 1989(2) All ER 782 (19/20 April, 1989) (CA).

(Lord Donaldson of Lymington MR, Balcombe, Nicholls JJ).

In this case a baby was made a ward of Court shortly after her birth by the local authority as it was felt that her parents would have great difficulty in looking after her. The child was seriously brain damaged, severely handicapped and terminally ill. The medical opinion was that only palliative care could be given to relieve pain and suffering rather than to achieve prolongation of life.

The trial Court, which was approached by the local authority, heard the Official Solicitor as the child's guardian-ad-litem, and granted leave "to treat the ward in such a way that she ended her life peacefully with least pain, suffering and distress and that the hospital was not required to treat any serious infection which the baby contracted nor need it set up any intravenous feeding system for her." The official Solicitor appealed.

The Court of Appeal affirmed it and held that where the ward of Court was terminally ill, the Court would authorize treatment which would relieve the ward's suffering during the remainder of his or her life and would accept the opinion of the doctors that the aim was only to relieve suffering rather than achieve a short prolongation of life. The Court could not, however, give directives as to how the child could be treated, hence the directions of the trial Judge not to treat for serious infections or intravenous feeding were set aside.

Lord Donaldson referred to B (a minor) (Wardship: medical treatment) Re: (1981)(1) WLR 1421 (CA); B (a minor) (Wardship: sterilization) Re: 1987 (2) All ER (HL) = 1988 A.C. 199; Re D (a minor) (Wardship: Sterilisation) Re 1976(1) All ER 326.

In Re D (1976) above mentioned, Heilborn J had stated that "once a child was a ward of Court, no important step in the life of that child, can be taken without the consent of the Court."

Lord Donaldson referred to Re B (1981) (1) WLR 1421 (CA) above and to the view expressed therein that the 'best interests' of the child are alone relevant rather than just going by the parents' views. He said that in Re B (1987) (HC), it was also said that the paramount consideration was the wellbeing, welfare and interests of the ward.

We next come to the separate Judgment of Balcombe LJ. He distinguished the judgment of the Canadian Court in Re SD 1983(3) WWR 618 decided by McKenzie J. In that case a seven year old boy had severe brain damage caused by meningitis. The question was whether an operation to revise a 'shunt' (a plastic tube which chains excess cerebrospinal fluid away from the brain) which had become blocked, should be performed.

The boy's parents opposed on the ground that he should be allowed to die with dignity rather than to continue to endure a life of suffering. The evidence there was that, without a shunt revision, the boy would not necessarily die but might live for months or years. McKenzie J said (629) that was

"not a 'right to die' situation where the Courts are concerned with people who are terminally ill from incurable conditions. Rather, it is a question whether S, has the right to receive appropriate medical and surgical care of a relatively simple kind which will assure him the continuation of his life, such as it is."