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British judges cannot order doctors to treat.

On 3 June 1992 the United Kingdom's Court of Appeal, in a landmark decision, overturned an earlier High Court ruling that had required a London hospital to provide life support for a severely brain-damaged eighteen-month-old child whose doctors were unanimous in believing that such treatment was not appropriate. While the Court of Appeal recognized that its judgment "did not give to doctors any right that they did not previously have," it did break new ground in making explicit that the lower court erred "because it did not adequately take account of the sad fact of life that Health Authorities might find that they have too few resources to treat all the patients whom they would like to treat" (Re J [A Minor] [Medical Treatment]. Court of Appeal: 10 June 1992).

Baby J was born in January 1991. At the age of one month he suffered brain damage as the result of an accidental fall. On examination Baby J was found to be microcephalic, with cerebral palsy, cortical blindness, and severe epilepsy. Medical opinion was in unanimous agreement with Dr. 1, the pediatrician in charge, that J's life expectancy was short and that he was unlikely to develop beyond his present level of functioning. Dr. I ordered that Baby J be provided ordinary resuscitation with suction, physiotherapy, and antibiotics, but that he should not be placed on a ventilator in an ICU even if he became unable to breathe spontaneously.

J's divorced parents and the local health authority, which shares responsibility for Baby J and which had placed him with foster parents, applied to the High Court under the 1989 Children's Act to determine whether Dr. I and others ought to be obliged to provide artificial ventilation in the event of a life-threatening occurrence. The High Court's decision, made despite the lack of any medical evidence favoring such intervention, directed the Health Authority to take such measures. The decision was stayed pending the Authority's appeal.

In overturning the High Court's ruling, the Court of Appeal's Lord Donaldson, the Master of the Rolls, found the High Court judgment to be wholly inconsistent with the law. It declared that the court's exercise of its power to protect the interests of minors "should not require a medical practitioner or Health Authority to adopt a course of treatment which in the bona fide clinical judgement of the practitioner was contraindicated." The physician's duty, "subject to obtaining any necessary consent, was to treat the patient in accordance with his own best clinical judgement." Lord Justice Balcombe, concurring, said that he "could conceive of no situation where it would be [proper] to order a doctor to treat a child in a manner contrary to his or her clinical judgement."

Lord Donaldson further ruled that the High Court's judgment had erred in not taking into account that under conditions of scarcity "it was then [the Health Authority's] duty to make choices." The High Court, he declared, "had no knowledge of the competing claims to a Health Authority's resources and was in no position to express any view as to how it should deploy them."

The Court of Appeal judgement emphasized that if circumstances changed, any decision as to whether to use mechanical ventilation ought to be made in the light of those changed circumstances. "That is what clinical responsibility is all about. So long as those with parental responsibility consent to J being treated by the medical staff of the Health Authority, he must be treated in accordance with their clinical judgement.
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Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Author:Kessel, Ross
Publication:The Hastings Center Report
Date:Jul 1, 1992
Words:584
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