[2004] EWHC 1879 (Admin, Justice Munby), judgment 30 July 2004.CrossRefGoogle Scholar

MrMoon, Angus, Barrister, London, personal communication, 24 August 2004 (quoted with his permission).Google Scholar

The General Medical Council is reportedly considering an appeal: see BBC News, “Patient Wins Right-to-Life Ruling,” <http://news.bbc.co.uk/1/hi/health/3938879.stm> (last visited September 13, 2004).+(last+visited+September+13,+2004).>Google Scholar

Justice Munby emphasised that he was considering artificial feeding and hydration, “which is relatively simple and straight-forward and a routine staple of day-to-day medical practice in hospitals up and down the land” (see paragraph 29). He said the case was “not…about the prioritisation or allocation of resources…[or] distributive justice” (paragraph 27); “experimental or untested forms of treatment” (paragraph 28); nor “treatment with significant cost implications” (paragraph 29).Google Scholar

This is the common law meaning of “autonomy” in relation to medical treatment, in my view. Note, however, that in Burke, supra note 1, Justice Munby regards “the right to be protected from treatment” as one of the “dignity interests” protected by Article 8 of the Convention and adds the “right to be protected…from a lack of treatment, which will result in one dying in avoidably distressing circumstances” as another such interest (see paragraph 213(i) [emphasis added]). Justice Munby says that “The personal autonomy protected by Article 8 means that in principle it is for the competent patient, and not his doctor, to decide what treatment should or should not be given” (paragraph 213(n) [his emphasis]); in the context of this paragraph, this might mean that the patient can decide which one of the options available he or she will agree to undergo – see references to autonomy taking second place to “sanctity of life,” paragraph 213(m)-(o). In paragraph 51, Justice Munby cites Lord Hoffmann’s discussion of “autonomy” in Airedale NHS Trust v Bland [1997] AC 789, 826: “respect for the individual human being and…his right to choose how he should live his own life.”. Again, this is in contrast to “sanctity of life” – an argument that autonomy “trumps” sanctity of life in that a competent patient’s refusal overrides the doctor’s obligation to keep the patient alive: cf Burke, paragraphs 16–17. However, in other parts of the judgment, he gives “autonomy” a broader meaning: see text to notes 43–46 below.Google Scholar

American health lawyer, Professor Robert Schwartz argues this with good examples in “Autonomy, Futility and the Limits of Medicine,” Bioethics News 12 (1993): at 32; see also, Skene, L., Law and Medical Practice, 2nd Ed. (Sydney: LexisNexis, 2004): At paragraphs 2.120 ff.Google Scholar

Quoted by the European Court of Human Rights, 4th Section in Case of Glass v The United Kingdom, 18 March 2004, paragraph 45.Google Scholar

See also, in Re J (A minor) (Wardship: Medical Treatment) [1992] 4 All ER 614 at 625; [1993] Fam 15 at 29, Lord Donaldson at 26, 28; Lord Justice Leggatt at 31. All judges mentioned as a relevant factor that a hospital’s resources are limited and the court does not know of competing claims for them; see Justice Munby in Burke, supra note 1, paragraph 187 for other reasons for the decision in Re J.Google Scholar

See Re J (a minor) (medical treatment) [1990] 3 All ER 930, in which the court would not order intensive care for a child who suffered severe brain injury after a fall and the mother’s application was refused; Re C (A minor) (1997) 40 BMLR 31, where Orthodox Jewish parents believed that life should always be preserved, the court would not order that treatment be given; A National Health Service v D [2000] 2 FLR 677 at 686, in which the English High Court accepted unanimous medical opinion from three paediatricians that mechanical ventilation and the processes of intensive care were not in the best interests of a 19-month-old child who was severely disabled (he had irreversible and worsening lung disease, heart failure, hepatic and renal dysfunction; life expectancy one year at most). The court made the declaration (at 678) that was sought by the NHS Trust responsible for the child’s care, and also by the Official Solicitor, but opposed by the parents: In the event of the child suffering “a respiratory and/or cardiac failure and/or arrest,” it would be lawful to treat him with only palliative care.Google Scholar

Grubb, A., “Incompetent Patient (Child): Withholding Treatment and Human Rights,” Medical Law Review 8 (200) 8 Med Law Review 339. Professor Grubb emphasised that “the judge was entitled to reach his conclusion even though the parent disagreed”: id at 340, citing Re T (A minor) (Wardship: Medical Treatment) [1997] 1 All ER 906, [1997] 1 WLR 242; (1996) 35 BMLR 63 (CA).Google Scholar

Supra note 1, paragraph 191; see also note 47 below.Google Scholar

That is, an examination of the case of “unreasonableness” of the decision of a kind recognised in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 as a basis for judicial review of administrative action.Google Scholar

Kennedy, I. and Grubb, A., Medical Law, (3rd Ed, London: Butterworths 2000): 19. The cases include R v North Derbyshire HA, ex parte Fisher [1997] 38 BMLR 76 (plaintiff sought new and expensive drug, Beta interferon for multiple sclerosis); North West Lancashire Health Authority v A, D and G [1999] Lloyd’s Rep Med 399 (CA) (three transsexual men living as women sought judicial review of the health authority’s refusal to fund gender reassignment surgery for them); and R v North and East Devon HA, ex p Coughlan [1999] Lloyd’s Rep Med 306 (CA) (disabled woman claimed health authority should honour its promise that she could remain “for life” at nursing home); these cases are all discussed by Skene, L., supra note 6, paragraphs 2.121–2.126. The notion of a prescribed decision making process “enforced” by the courts may be compared with the facts and outcome in Northridge v Central Sydney Area Heath Service, (2000) 50 NSWLR 549.Google Scholar

Justice Dyson included resource allocation as a matter for clinicians to decide: R v North Derbyshire HA, exporte Fisher [1997] 38 BMLR 76 at 91–92.Google Scholar

Or human rights legislation; but, as Justice Michael Kirby observed, Australia has “neither a general statute of human rights, nor a constitutional charter of rights, nor access to a regional court of human rights to uphold the principles of liability that conform to general rules protective of human rights”: Justice Kirby, M, Occasional Address, Melbourne, 19 November 2002, referring to Osmond v The United Kingdom [1999] 1 FLR 193; Human Rights Act 1998 (UK). Note that the ACT recently passed the Human Rights Act 2004 (ACT). Australia does have legal obligations under international treaties but, in my view, courts would be reluctant to use these as a basis for assisting patients in asserting a right to treatment.Google Scholar

In Australia, for example, a hospital would have a defence to an unlawful discrimination claim if it could show that it acted “reasonably,” given a patient’s condition and prognosis, or even the demands of other patients on its resources. Also, an Australian court is unlikely to order the service to be provided even if the patient is successful; the remedy will probably be compensation for unlawful discrimination: Pearce v South Australia Health Commission (1996) 66 SASR 486; Re McBain: Ex parte Australian Catholic Bishops Conference; Re McBain: ex parte Attorney-General (Cth) (2002) 209 CLR 372.Google Scholar

Lord Justice Butler-Sloss said in Re MB (Medical treatment) [1997] 2 FLR 426 at 439: “Best interests are not limited to best medical interests”; Justice Munby in Burke, supra note 1, paragraphs 90, 93: “it is for the patient (or the judge if the patient is incompetent) to decide the patient’s best interests, not the doctor”.Google Scholar

“Demonstrably awful” was the term used by Lord Justice Templeman as justifying withholding of life-sustaining treatment: Re B (a minor) (wardship: medical treatment) [1990] 3 All ER 927 at 929; [1981] 1 WLR 1421 (CA).Google Scholar

A National Health Service v D, supra note 9 at 687; cf the Disability Rights Commission’s concerns quoted by Justice Munby in Burke, , supra note 1, paragraph 35.Google Scholar

Grubb, A., “Commentary on R v Portsmouth NHS Trust ex parte Glass” Med Law Rev 8 (2000): 126–7. After Justice Munby’s judgment in Burke, Bert Massie, Chairman of the Disability Rights Commission which supported the case, reportedly said: “Until now doctors had the power to refuse or withdraw life-prolonging treatment and to disregard a disabled person’s wishes based, in some cases, on a set of assumptions that disability equals a poor quality of life”: Press Association, “Terminally Ill Man in Right to Life Victory,” The Guardian, 30 July 2004: <http://society.guardian.co.uk/print/0,3858,4982688-105965,00.html.> (last visited September 13, 2004).Google Scholar

[1999] 2 FLR 905; [1999] Lloyd’s Rep Med 367 (CA).Google Scholar

Id. at 908; he added, that “in doing so [that is, in intervening], the court takes fully into account the attitude of medical practitioners.”Google Scholar

Supra note 7.Google Scholar

Supra note 1.Google Scholar

Id., paragraph 3.Google Scholar

Id., paragraph 2.Google Scholar

Id., paragraphs 5, 48–9.Google Scholar

Id., paragraph 24: Withholding and Withdrawing Life Prolonging Treatments: Good Practice in Decision Making, August 2002, later called “Guidance” (Justice Munby’s term), appended to the judgment in Burke. There was extensive consultation before the GMC published the Guidance: Burke, paragraphs 7–8.Google Scholar

Id, supra note 28, paragraphs 32, 38 and 81.Google Scholar

Id, supra note 28, paragraph 32, quoted by Justice Munby, Burke, Supra note 1, paragraph 10 (his emphasis).Google Scholar

Id., paragraph 38, quoted by Justice Munby, supra note 1, paragraph 11 (his emphasis).Google Scholar

Id., paragraph 81, quoted by Justice Munby, Burke, supra note 1, paragraph 12 (his emphasis).Google Scholar

Supra note 1, paragraph 34.Google Scholar

Id., paragraph 59.Google Scholar

Supra note 20.Google Scholar

Supra note 1, paragraph 213(e).Google Scholar

Id., paragraph 213(d).Google Scholar

Supra note 1, paragraphs 54–56.Google Scholar

[1990] 2 AC 1 (emphasis added).Google Scholar

[1985] AC 871 at p 882 (emphasis added).Google Scholar

[1997] 2 FLR 426 at p 432 (emphasis added).Google Scholar

Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, at p 904 (emphasis added).Google Scholar

Bland, supra note 5 at p 864 (emphasis added).Google Scholar

Sidaway, supra note 42 at p 882 (emphasis added).Google Scholar

(1914) 105 NE 92 at p 93 (emphasis added).CrossRefGoogle Scholar

Supra note 1, paragraph 64 (emphasis added). See also his ultimate conclusion that it is for the patient to decide “where his best interests lie, as to what life-prolonging treatment he should or should not have”: paragraph 116, point (11) (emphasis added).Google Scholar

Supra note 1, paragraph 193. Justice Munby said (at paragraph 191) that he was “prepared to accept…that the court will not grant a mandatory order requiring an individual doctor to treat a patient” but (at paragraph 192) there is “no reason why in principle it should not…grant declaratory relief against him.” The court could then “by appropriate orders ensure that a patient who ought to be treated is, if need be, transferred to the care of doctors who are willing to do so” (paragraph 193). Such a transfer may readily be achieved in the U.K.: paragraphs 189, 193; but perhaps not in other countries where hospitals and the bodies that administer them may not be public bodies subject to judicial review.Google Scholar

Supra note 1, paragraph 198.Google Scholar

In re S (Hospital Patient: Court’s Jurisdiction) [1996] Fam 1 at 18.Google Scholar

Supra note 1, paragraph 82.Google Scholar

Airedale National Health Service Trust v Bland [1993] AC 789; [1993] 1 All ER 82 at 858.Google Scholar

Supra note 1, paragraph 88, citing Brandon, Lord, In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 56.Google Scholar

Supra note 1, paragraph 90; see on best interests generally: paragraphs 88–116. Justice Munby quoted Lord Justice Thorpe’s “balance sheet” approach (in Re A Male Sterilisation (2000) Fam 15 at 30) for determining best interests: Supra note 1, paragraph 114.Google Scholar

(2000) 50 NSWLR 549CrossRefGoogle Scholar

Ibid, paragraph 24. Cf comments of Justice Munby in Burke regarding “routine” treatment: Supra note 4.Google Scholar

In Bland, supra note 51, a unanimous decision of the House of Lords, Lord Goff said (at AC 870) that “if the treatment is futile…it is no longer in the best interests of the patient to continue it”; see also Re BWV [2003] VCAT 121, which was upheld by the Supreme Court of Victoria: Gardner; re BWV [2003] VSC 173 (Justice Morris) paragraph 8: it is lawful to withhold treatment that has “no prospect whatever of improving [a patient’s] condition.”Google Scholar

Re J (a minor) (wardship: medical treatment) [1990] 3 All ER 930 at 939 (Lord Donaldson MR): “… mechanical ventilation is itself an invasive procedure which, together with its essential accompaniments, such as the introduction of a nasogastric tube, drips which have to be resited and constant blood sampling, would cause the child distress. Furthermore the procedures involve taking active measures which carry their own hazards, not only to life but in terms of causing even greater brain damage. This had to be balanced against what could possibly be achieved by the adoption of such active treatment”; see also Grubb, , supra note 10.Google Scholar

Re C (a minor) (wardship: medical treatment) [1990] Fam 26, 1 FLR 252; Re J supra note 8. In Re J, the three judges in the Court of Appeal unanimously decided that it was in the best interests of the child that authority should be withheld for reventilation if he stopped breathing. They posed the question in terms similar to those of Lord Justice Templeman in Re B, supra note 18, (“demonstrably awful”) which were quoted in Re C: would the child’s life, from his point of view, be so intolerable if he were to continue living that he would choose to die if he were in a position to make a sound judgment? In Burke, Justice Munby regarded “intolerability” as the “touchstone” of best interests: paragraph 113.Google Scholar

The Ohio Supreme Court recently ruled that a child should not be taken off life support, as recommended by doctors and the hospital ethics committee: In Re Guardianship of Stein, 2004–Ohio-2948, 9 June 2004. The grounds were the unconstitutionality of overriding the parents’ rights without legal argument by appointing an independent guardian to consent to the withdrawal of life support; and also doubts about whether the child’s best interests would be promoted by his death. Other cases are before the courts in the U.K.; the case of Charlotte Wyatt was heard as this paper went to press: [2004] EWHC 2247 (Fam).Google Scholar