Report No. 196

Another distinction peculiar to Scotland, as being a second reason, was stated as follows:-

"A further point which ought not to be overlooked is that, while an appeal lies to the House of Lords from the Court of Sessions, the High Court of Justiciary is the Supreme Court of Criminal Jurisdiction in Scotland, from whose decisions no appeal to the House of Lords is competent. In Mackintosh, Lord Advocate (1876) (3) 12 (HL) 34, it was held that it would be contrary to the provisions of Article 19 of the Act of Union, 1707 for decisions of the High Court of Justiciary to be held to be other than final and conclusive on that Court.

In my opinion, we should leave it to the High Court of Justiciary to define what conduct is or not criminal under the law of Scotland. It is not for the Court of Session to explore questions relating to the scope of the criminal law which have not already been established by decision in the High Court of Justiciary."

For these reasons, while I consider that the Lord Ordinary may properly grant a declaration in this case, the terms of the proposed declaration will require to be amended to make it clear that the declaration is given in regard to the civil consequences of the proposed conduct. Some other solution must be found as to how the re-assurance in regard to the criminal consequence of that conduct can be given to the pursuers and the medical practitioner."

As regards the existence of parens patriae jurisdiction, the Lord President stated that, it was jurisdiction of the Crown which, as stated in Airedale, could be traced to the 13th century. It laid down a duty to protect the person and property of those who were unable to protect themselves, such as minors and persons of unsound mind. But in England and Wales, the jurisdiction survives only for minors and so far as persons of unsound mind were concerned, it ceased to exist because of the Mental Health Act, 1959 and the revocation 'by Warrant under the Sign Manual' of the Warrant dated 10.4.1956, by which such Jurisdiction in relation to unsound persons was assigned to the Lord Chancellor and Judges of the Chancery Division of the High Court.

In Airedale, the House of Lords, therefore, laid down that a declaration could be granted under inherent powers in the case of persons other than minors, that "the proposed discontinuance of treatment was in the patient's 'best interests'." In Scotland there was no such problem in regard to parens patriae jurisdiction as section 1 of the Exchequer Court (Scotland 1 Act, 1856) had not been repealed though section 19 was repealed.

The Lord President referred to the Canadian case in Mrs. E vs. Eve 1986 (2) SCR 388, as one where the parens patriae jurisdiction was held by L'a Forest J (p 410) as being available for a Court under its inherent powers, to permit non therapeutic sterilization of persons mentally incompetent, (referred to in In re B (A Minor) (Wardship: Sterilisation): 1988 (1) AC 199 (at p 211).

In Ireland, in 'Ward of Court, In the matter of a' (1995(2) ILR M 401 too, the Court could hold that a Judge of the High Court could exercise his parens patriae jurisdiction, (as exercised by the Lord Chancellors of Ireland prior to 1922 and now vested in the President of the High Court) to give consent on behalf of a ward in persistent vegetative state. It is not the practice in Scotland to treat persons of unsound mind as wards of Court.

Finally, the Lord President held that an application can be presented to the Outerhouse by the Area Health Authority or NHS Trust in whose care the patient was for the time being, or by any relative of the patient within the meaning of section 1 of the Damages (Scotland) Act 1976. Application would be seeking treatment withdrawal. The Lord Advocate, the Area Health Authority or NHS Trust and relatives of patients have to be heard. Medical reports, proposed treatment or proposals for discontinuance of medical support should be sought for.

In view of the advice given by BMA guidelines on Treatment Decision for Patients in Persistent Vegetative State (July, 1993), the life prolonging treatment must continue until the patient has been insentient for at least 12 months. Details of PVS and the treatment must be given. Advance directives of patient, if any, should be stated, whether it is in writing or not. It must be prayed that a curator ad litem be appointed to protect the patient's interests.

Case should be heard in chambers without intimation on the notice boards, unless public interest requires. There is no need to seek a declaration. The Court's parens patriae jurisdiction can be invoked. At least two medical reports are necessary on the patient's condition, and the application must specify the treatment proposed or to be discontinued to allow the patient to die in dignity. (Lord Clyde, Lord Cullen, Lord Milligan wrote separate judgments. Lord Wylie agreed with the Lord President).