Report No. 196

(6) Law Hospital NHS Trust v. Lord Advocate (Scotland): (1996) SLT 848 = 1996 SCLR 491) (22 nd March 1996) (Lord President (Hope), Lord Clyde, Lord Cullan, Lord Milligam and Lord Wylie). (Court of Sessions, Inner House) (Court of Five Judges)

Mrs J, a patient, had been in a persistent vegetative state (PVS) since 22nd January 1992. She had no prospect of recovery and was unable to give a valid consent to the taking of further steps. She could not see, hear, feel pain or pleasure, nor communicate by word or movement or make voluntary movements of any kind. The brain stem was alive. Breathing, cardiac function and digestion were artificially maintained. Involuntary movements of the eyes and the ability to make sounds gave the impression of apparent wakefulness.

This was followed by periods of apparent sleep with eyes closed. She was now permanently insensate. The consultant physician and two neurologists were of the view that her condition was hopeless and there were no useful avenues of treatment. The curator-aad-litem represented her. Her husband, daughter and two brothers agreed that life-sustaining and medical treatment should be discontinued. The patient was, however, unable to give consent.

The present action was raised as an ordinary action by the NHS Trust, in the Outer House and was reported to the Inner House. The declarations sought for were similar to those in Airdale. In England where the courts parens patriae jurisdiction was abolished, the courts innovated a procedure whereby declarations in regard to termination of life support could be granted. In Scotland, as the parens patriae jurisdiction remained, a declaratory remedy was sought under the parens patriae jurisdiction. The Lord Ordinary before whom the action came up, reported to the Inner House, seeking that rulings be given, including a ruling about the competency of the action.

The Lord President (Lord Hope) referred to the modern invasive procedures available in medical technology to keep a person alive by artificial ventilation and artificial nourishment, a patient who would have otherwise died a normal death. Where the patient was of full age and capable of understanding and was able to consent to the procedures if medical advice stated that they were for his or her benefit, a patient could refuse medical treatment on the basis of a right to self-determination which provided the solution to all problems, at least so far as the court was concerned. It was not in doubt that a medical practitioner who acts or omits to act with consent of his patient requires no sanction of the court.

The problems arose where the patient was not of full age or lacked the capacity to consent to what was being proposed. The law had to decide issues firmly rather than refer merely to moral obligations of the doctors, because a 'deliberate omission which causes death may also expose the medical practitioner to the allegation that his conduct is criminal'. It was not a sufficient reassurance for a doctor, in the present state of the law, to be told that his proposed conduct was medically ethical. He was entitled to know about civil or criminal liability under the law.

The Lord President stated that in Airedale, the House of Lords decided on grounds of public policy, that the courts should, by declaration, provide to doctors faced with such decisions, clear rulings as to whether the course which they propose to adopt was or was not lawful. The medical profession was entitled to look to the courts. This view had the support of the Scottish Law Commission in its Report on Incapable Adults (Scot Law Com No.151, para 5.86).

He said that a declaration may be sought in the manner in which it was done in Airedale and relief could be claimed as in the Practice Note of March 1994 by the Official Solicitor (1994 (2) All ER 413).

After holding that the Lord Ordinary had parens patriae jurisdiction in Scotland and that a declaratory relief was sought as conceived by the Scottish Law Commission he said that the application was maintainable whether or not, there were objectors to such an application.

But, the more important issue that was raised by the Lord Advocate was whether a virtual declaration could be sought whether a particular proposed conduct was a crime or not in as much as that would amount to an intrusion into the fields of criminal courts which have exclusive jurisdiction to decide the questions (in Scotland, the High Court of Justiciary).

Of course, in the present case, as the doctors, parents, relatives were all in favour of withdrawal of life support, there was no need to seek a declaratory relief. But, in any event, the Lord Ordinary could grant a declaration for the purpose of giving 'guidance and reassurance' to the pursuers and to the patient's medical practitioner about the legal consequences of terminating the life sustaining treatment, insofar as it was competent for such guidance to be given by "this court".

Without such guidance, they would not be able to discontinue the treatment. Otherwise, the risks were great. In fact, their risks had not diminished because of the fact that the curator-ad-litem to Mrs. J had expressed in his affidavit that it was in the patient's best interests that her treatment and care be continued and not discontinued as proposed. The proposed declaration did not seek any relief that particular conduct be declared to be not criminal. "What it seeks is a declarator that the pursuers and the medical practitioner 'may lawfully discontinue' the treatment".

But, the word 'lawful' in the declaration sought, without qualification implies an assertion that the conduct was not only not a breach of duty according to the civil law but that it was also not a crime known the law of Scotland'. In Airedale NHS Trust v. Bland, the House of Lords approved of a declaration in these terms after considering among other things whether the proposed discontinuance of the treatment was unlawful because it would constitute an offence.

Sir Stephen Brown (at p.805), in the Family Division, said that he did not consider it appropriate to make any declaration with regard to any possible consequences so far as the criminal law was concerned. In the context of his opinion, the declaration that the course proposed was lawful meant that it was lawful 'according to civil law'. But in the Court of Appeal and the House of Lords, the Official Solicitor also proposed the question whether the proposed action would be criminal in nature. Lord President then says:

"Lord Goff of Chieveley (at p.862 G) and Lord Mustill (at pp.888E- 889F) expressed strong reservation about the granting of a declarator as to criminality in a civil case. Lord Mustill pointed out that the decision in that case would in any event not create an estoppel in the criminal courts which would form a conclusive bar to future prosecution. Nevertheless, they did proceed to decide the issue and it is clear from all the speeches that their Lordship were of the view that the conduct which was proposed would not amount to crime according to the law of England."

Having said that, the Lord President doubted if any declaration that might be granted would preclude the criminal court from going into the question. He stated:

"while a declaration can be given about the civil law in this process, it is beyond the jurisdiction of this court to say whether the proposed course of conduct is or is not criminal. Nevertheless, I consider that it is not open to this court to assert that a proposed course of conduct is or is not criminal by means of a bare declaration. If it is necessary for the court to resolve this issue in order to decide whether or not a party to the action is entitled to some other civil remedy, then this will be within its competence.

The decision about the criminality of the conduct can be said to be ancillary to the provision of a remedy which it is within the power of this Court to provide. But a bare declaration that a course of conduct, or a proposed course of conduct is, or is not criminal, is in a different position. The only purpose to be served by such a declaration would be in regard to the operation of the criminal law, which lies beyond the jurisdiction of the Court."

In Scotland, the civil jurisdiction alone is with the Court of Sessions (which made this reference to the Inner House while the criminal jurisdiction is with High Court of Justiciary). He, however, says:

"We are not being asked to intervene in (any) criminal proceedings which have already been instituted or to interfere in some other way in the business which is being conducted in the High Court of Justiciary. What we are being asked to do is to authorize the Lord Ordinary to issue a declaration as to the criminality of the proposed conduct, with knowledge that this will not bar proceedings in that Court but in the hope that it will in practice ensure that no prosecution will be taken there."

There are, he says, strong reasons of policy for leaving the definitions of what amounts to 'Criminal conduct' to be decided by the criminal Courts.

"Any declaration which we might make would not be binding on the High Court of Justiciary. Nor would any declaration which we might authorize be binding on the Lord Advocate, who would be entitled in the public interest, irrespective of what we might say, to bring the matter before the criminal courts, to which the issue clearly belongs because the function of the criminal law is to regulate conduct by the imposition of criminal sanctions."