Clash of rights between child, doctors and parents

When parents of a premature baby recently challenged doctors plans not to reventilate her if her condition deteriorated, the court had to consider three different circumstances. David Lock, barrister and head of healthcare practice for Mills & Reeve who represented the hospital trust that cared for the baby highlighted the legal and ethical issues involved. Jon Robins reports

The former MP David Lock, an employed barrister and head of the healthcare practice for the law firm Mills & Reeve, talked last week “about the triangle of rights between the child, the clinicians and the parents”. This is the second part of the article in which he talks about the case of Charlotte Wyatt, the premature baby whose parents went to the High Court to challenge doctors’ plans not to reventilate her if her condition deteriorates. Last week he took part in a seminar his firm hosted on the law and childcare.

David Lock represented the hospital trust caring for Charlotte Wyatt, the premature baby whose parents went to the High Court to challenge doctors’ plans not to reventilate her if her condition deteriorates. Adults make their own decisions and even if one course of treatment was plainly far better than another, the law allowed adults of sound mind to be “as foolish as they like concerning their own bodies”, Mr Lock said. But it is a different matter with children.

In the Charlotte Wyatt case, Mr Justice Hedley considered three different circumstances – where parents and doctors agreed on treatment, where they disagreed, but the doctors considered that what the parents want was ethically acceptable, and where they disagreed but doctors consider that what the parents want not ethically acceptable. He said that in the third scenario doctors would not only be legally entitled to refuse treatment “but, I would suggest, they would be professionally obliged to refuse such treatment”.

Mr Lock went on to consider the implications that in the NHS, being a state funded health service, “demand has always and ... will always exceed the NHS’s ability to deliver healthcare”. “A cot in a paediatric critical care unit can only be used by one child at a time and, as we celebrate more and more children surviving from very premature births, so medical progress creates its own increase in demand for critical care facilities,” he said.

What is the approach of the courts? According to Mr Lock “the courts have erected a large ‘Lawyers Keep Out’ sign at the door of the medical rationing debate”. He cited a leading case back in 1995 which concerned child B who wanted the Health Authority to fund novel but potentially life saving treatment for a 16 year old with leukaemia. Lord Justice Bingham said that “difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients”. “That is not a judgment which the court can make,” he added.

In the Charlotte Wyatt case, Mr Justice Hedley considered the European Convention on Human Rights but concluded that the courts had “recognised that in this case at least the convention now adds nothing to domestic law”.

“The worst possible position - as a lawyer - is to think that a decision is being made solely on the basis of the best interests of a child but find that in fact there is a strong but un-stated element of resource prioritisation which is driving the decisions,” Mr Lock said. (31/01/05)

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Case annotations in other services:-
Re Wyatt (a child) (medical treatment: parents’ consent).BLD 0810044137; [2004] EWHC 2247 (Fam)