time his breathing stopped. In assessing where J's best interests lay, the Court of
Appeal considered the distress and hazardous nature of reventilation, the risk of
further deterioration if J was subjected to it, and his extremely unfavourable
general prognosis. Because J's disabilities seemed to make his life intolerable the
court was prepared to spare him further invasive medical intervention.
The judgment, and others like it, can be criticised for the importance which was
attached to the medical opinions about the baby. Psychologists, physiotherapists,
teachers and respite centre staff are among the professionals who could, better
than doctors, illuminate whether a disabled child might learn to interact with
others, or at least to derive some satisfaction from his or her life. But unless such
professionals are already involved with the young patient, they are unlikely to have
the opportunity to give evidence to the court. Potentially valuable insights are thus
neglected, and an incomplete assessment becomes the basis for the court's
decision.
The judges inRe Jruled that there is no need to involve the courts where family
and professionals agree that treatment should be withheld from a child. However,
in the more recent case ofRe C a baby)41996), the High Court suggested that the
issue of referral to court should be decided in the context of each specific situation.
Such a selective approach may fail to meet the requirements imposed by Article 2
of the European Convention on Human Rights. As was explained at the start of this
chapter, our domestic law is now expected emphatically and transparently to
protect life. This surely must entail that the decision to let a child die rather than
`inflict' treatment should go to court for an assessment of where the child's best
interests lie. Furthermore, explicit criteria will need to be devised to guide decision
making where a child's life is at stake.
10.1. 3Family disputes about treatment
Where adults share parental responsibility for a child, does the consent of just one
of them, acting independently, protect the team treating the child? The answer
provided by the Children Act 1989 in section 247) is affirmative. Nevertheless, in
1999 the Court of Appeal ruled that there were some decisions which should not
be acted upon unless everyone with parental responsibility agreed [7]. Examples
given were sterilisation and circumcision, rather than any treatments likely to
apply in the case of critically ill children. Unfortunately, the judgment did not spell
out in exactly which other circumstances one consent only would be inadequate.
Caution suggests that for irreversible procedures, particularly controversial ones,
the consent of all who share parental responsibility should be obtained.
Proceeding on the basis of just one consent where there is conflict may anyway
seem so invidious that going to court becomes preferable. It is at least an option
available to `piggy-in-the-middle' professionals seeking to respect the position of
the dissenting adult. The latter, under Article 8 of the European Convention, in any
case has the right to participate in the decision [8]. Because medical treatment
disputes are regarded as complex, they must be referred to the High Court 4Re R a
minor) blood transfusion)41993)) rather than the Family Proceedings or County
Court.
The Critically Ill Patient 197