UK: Human Rights - Resuscitation of a Disabled Child

In Glass -v- The United Kingdom, the court was faced with unusual facts. DG was born in 1986 and is physically and mentally disabled. He lived with his mother and required considerable care from her and from health professionals from time to time.

In July 1998 he required treatment for an upper respiratory tract obstruction for which he was admitted to a NHS hospital. In the course of his treatment and in the knowledge that he might die, the paediatricians took the view that he required diamorphine to alleviate his distress and possibly assist his breathing. A decision was made that he would not be resuscitated in the event that he arrested.

There was a factual dispute about whether his mother had agreed with the treatment course in the past but, in the event, it was plain that she did not agree to the administration of diamorphine when the decision was made to administer it. Her wishes were overridden, diamorphine was administered and DG recovered.

The case was argued under Article 8 of the Convention on Human Rights which provides:-

1. "Everyone has the right to respect for his private and family life …
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …"

The European Court of Human Rights (ECHR) concluded that:-

• The decision to impose treatment on DG in defiance of his mother’s objections gave rise to an interference with DG’s right to respect for his private life and in particular his right to physical integrity.

• In the circumstances, the onus was on the NHS Trust to take the initiative by bringing the matter before the court.

• There was a breach of Article 8.

• Compensation of EUR 10,000 was awarded to DG and his mother.

The issues had previously been before the English courts. The mother had made an application for Judicial Review to the High Court which was dismissed by Mr. Justice Scott Baker. The mother appealed and the Court of Appeal dismissed the appeal saying:- "Where there is conflict of a grave nature about the medical treatment of a child, the desirable way forward is to bring the matter before the Court. In that way the particular problem will be given an answer which reflects the view of the Court as to the best interests of the child, taking into account the natural concerns and responsibilities of the parent, the views of the doctors, and advice from the Official Solicitor and others. The answer given in relation to a particular problem dealing with a particular set of circumstances is a much better answer than an answer given in advance."

Some practical lessons may be learned. There was no dispute that a NHS Trust was a public body. However, a General Practitioner making decisions on life preserving or life threatening NHS treatment may also be challenged in the courts under Article 8 on the ground that he is a "public body" when making such decisions.

Secondly, in describing the regulatory framework in the United Kingdom, the ECHR found that it "prioritises the requirement of parental consent and, save in emergency situations, requires doctors to seek the intervention of the Courts in the event of parental objection". In describing matters in that way the ECHR may have attributed greater weight to the wishes of a parent than has been generally understood by the English courts.

Thirdly, it is plain, if it was not plain before, that those responsible for administering treatment in these circumstances must take the initiative and make an application to the court so that the court balances the competing interests and decides whether it is in the child’s best interests to have the treatment proposed or not.

Fourthly, the ECHR was not impressed with the claim that the treatment was urgent and necessary, and such that an application could not first have been made to the court, when the possibility of dispute had been foreseen by the doctors.

Finally, the facts pre-dated the introduction of the Human Rights Act 1998. However, the decision does not represent a radically different approach to that which would be taken by a domestic court adjudicating on the issue in accordance with established legal principles.

© RadcliffesLeBrasseur

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