C was born at 26 weeks gestation and weighing 458 grammes. She was placed in an incubator and never left hospital. It was the unanimous view of the doctors that she would probably never do so. She suffered from brain damage, respiratory difficulties and poor kidney function.
The relevant NHS Trust sought a declaration which would permit them to discontinue invasive and aggressive treatment. The parents resisted the application contending that it was their duty to maintain C’s life as she was not yet ready to die. The Trust was granted the declarations and the parents’ appeal was dismissed by the Court of Appeal. However, the case was remitted back to the judge to determine whether there had been changes to C’s condition significant enough to warrant reconsideration by the Court.
On this review, the court found that C still had gross irreversible brain damage and the gravest chronic lung disease. There was some real progress with the practical effect that C could leave the ward and even briefly the hospital building. The Trust sought a declaration, which would in the event of an irreconcilable difference of opinion in treatment between the clinical team treating C and her parents, give the final decision to the clinical team.
The High Court held that any decision to grant the declaration sought by the Trust would be a novel development. The court noted the conflict between the treatment team and the parents and the concern should a declaration not be made. It examined the duty of the treating clinician to act in the best interests of the patient where she was not competent to make such a decision for herself. The difficulty arose where there was a difference of opinion between the clinician and the parents as to where C’s best interests lay. There were four potential areas for disagreement:
(i) treatment advocated by a doctor such as a blood transfusion which if refused by parents, would be an affront to conscience
The majority of disagreements would fall into (ii) and (iii). All the clinicians agreed that in those circumstances they would in the last resort accommodate the views of the parents.
However it was acknowledged that a doctor could not be required contrary to his conscience. A case would fall into category (iv) where a clinician concluded that a requested treatment was inimical to the best interests of the patient and that his professional conscience, intuition or hunch confirmed that view. In those circumstances he might refuse to act and could not be compelled to do so, though he should not and should not prevent another from so acting, should that clinician feel able to do so.
That described the position in which the Trust would find itself in the event that no declaratory relief was granted. There would be significant difficulties in framing a declaration of the type sought by the Trust.
Firstly, a declaration on an issue which was not easily defined would put the matter beyond question.
Secondly, it did not protect staff in a way that a declaration might.
Finally, it did not remove the prospect of litigation and the need for the Trust to return to court in the event of a gradual deterioration of C’s health.
Nor could a declaration of this sort prevent the parents from referring the matter back to court.
The only declaration that could be made was one which committed a treatment veto to the treating clinician. The court could not see how such a declaration could be made in view of the present circumstances and that at the time no further declaratory relief was necessary.