UK: Life or Death Cases

Last Updated: 17 March 2005
Article by Steven Janisch

Dame Elizabeth Butler-Sloss, President of the Family Division of the High Court, recently addressed a conference on Withholding Treatment. She said that the law had a crucial role to play in resolving difficult decisions where patients, families and doctors did not agree on what would be in the best interests of a critically ill patient. It was often the role of the law to set limits on what was appropriate. She explained that, at the end of the day, it is for the judge to say whether the proposed management of the case is lawful and for the doctors to go away and decide what to do. In her words, "the buck stops with the doctors and not with the judge".

There have been three recent high profile cases, involving a terminally ill man and two seriously ill babies. In July, Mr Justice Munby allowed Mr Leslie Burke the right to decide for himself whether he should receive artificial nutrition and hydration after his congenital degenerative brain condition had deteriorated to the extent that he could no longer give or withhold consent. He considered that there was a strong legal presumption in favour of life. Treatment should only be withdrawn if certain criteria were met, in particular that it would be intolerable for treatment to continue.

In October, Mr Justice Hedley ruled that Charlotte Wyatt should not be revived if she stopped breathing again. Charlotte had chronic respiratory and kidney problems, coupled with the most profound brain damage that left her blind, deaf and incapable of voluntary movement or response. In making his ruling, the judge agreed with the views of Charlotte's doctors as to what was in her best interests and did not accept her parents' submissions.

Dame Elizabeth herself presided over the case of Luke Winston-Jones, who suffered from Edwards's syndrome, a rare genetic disorder. She gave permission for Luke's doctors to withhold treatment by mechanical ventilation if his condition deteriorated. That moment arrived on 12 November and Luke died. His mother has now made a formal complaint to the police about the refusal of the doctors to carry out procedures that the family believe would have prolonged Luke's life.

These cases show how difficult it is to apply the established legal principles to individual cases. Even if the principles are clear, the way in which they are applied may be vigorously disputed by the interested parties.

In the case of withholding treatment from a child, the guiding principle is the child's best interests. The court requires the fullest possible medical evidence as to the nature of the underlying condition, the present state of health of the individual and the prognosis if each of the available treatment options is followed. It is very important for the doctors to work in partnership with the parents of a terminally ill baby and to keep them fully informed and enlist their consent at every turn. As well as being good practice, this approach acknowledges that they hold parental responsibility by virtue of sections 2 and 3 of the Children Act 1989. It includes the right to consent to or refuse treatment on the child's behalf. No one else has that right except the court where its jurisdiction has been invoked.

If there is no unanimity between the doctors as to the way ahead, the court will examine the options and seek to resolve the impasse. The aim is to establish what is in the best interests of the child. The concept of best interests encompasses medical, emotional and all other welfare issues. It therefore goes far wider than purely medical issues.

In a case in 1991, the Court of Appeal said that there is without doubt a very strong presumption in favour of a course of action which will prolong life, but it is not irrebuttable. Account has to be taken of the pain and suffering and quality of life the child will experience if life is prolonged and what is involved in the proposed treatment itself. There will be cases where it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit.

Where children are concerned, the law places final responsibility on the judge because the court is discharging its historic duty of overseeing the best interests of those who cannot make decisions for themselves. In exercising this jurisdiction, the court has the power to override the views of the parents as to what is best for their child. (There is no equivalent power in the case of an adult patient.)

In both Charlotte's and Luke's cases, the judges came to the conclusion that further aggressive treatment, even if necessary to prolong life, would not be in the best interests of the patient. It was recognised that the child might die earlier than otherwise would have been the case but the moment of death would be only slightly advanced.

Having reached its decision, what form of relief does the court grant? There will not be an injunction or a positive declaration. The court’s order does not relieve the doctors of the right or responsibility for advising or giving the treatment they and the parents think right in the circumstances. All the court did in Charlotte Wyatt’s case was to authorise them not to send the child for artificial ventilation or similar aggressive treatment. The case of Luke Winston- Jones illustrates that the parents may still be distressed at the eventual outcome, despite the best efforts of the court to examine all the evidence dispassionately.

Medical staff and their employing trusts will continue to need experienced legal advice in steering a course through the minefield these cases represent. 

Originally published in January 2005.

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.