ANALYSIS:DEVELOPMENTS IN medical science and technology make it possible to prolong the lives of those suffering from severe injuries far beyond what was previously possible. However, at a certain point the question can arise as to what the purpose of the treatment is, and whether it is in the best interests of the person concerned.
This was considered at length by the Supreme Court in 1995, when the family of a woman who had suffered severe brain damage 23 years earlier during a routine operation obtained the court’s permission to have her artificial feeding withdrawn. In that case the hospital opposed the application.
This case is different, in that here the parents oppose the hospital’s application not to persist with invasive treatment of their young son if he suffers an acute deterioration in his condition. In both cases the person at the centre of the matter is a ward of court, so it is up to the court to decide. However, as Mr Justice Nicholas Kearns pointed out, it does so taking into careful account the views of the parents and the doctors involved.
The courts’ attitude to these issues has evolved over the past few decades. In a 1981 English case cited by Mr Justice Kearns, a doctor was charged with attempted murder when he ordered that a baby born with Down’s syndrome should receive nursing care only, as the parents did not want the child to survive. He was acquitted.
Since then, however, the principle of the best interests of the person involved, not the wishes of parents or anyone else, have come to be at the centre of the consideration by the courts.
In 1989 the English House of Lords stated in a case concerning a child with very limited life expectancy that the easing of the child’s suffering, rather than the prolongation of life, should be the objective of treatment, and highly invasive and distressing treatment should not be attempted.
In this case Mr Justice Kearns also stressed that the dominant and paramount consideration in such cases should be the best interests of the child. He said this gave rise to a balancing exercise taking into account a number of circumstances, including the pain and suffering the child can expect if he survives; the longevity and quality of life he can expect; the inherent pain and suffering involved in the treatment; and the views of the child’s parents and doctors.
The court should ask what the ward would choose if he was in a position to do so, not imposing its own views on the quality of life the child would enjoy but determining his best interests from his point of view. This involves the court attempting to put itself in the position of a person suffering from the disability.
This case, more than most, illustrates the difficult balancing exercise required of the courts when faced with issues of life and death.