Organ Donation in UK Law

6. No minor of whatever age has power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor and a fortiori a consent by the court. Nevertheless such a refusal is a very important consideration in making clinical judgments and for parents and the court in deciding whether themselves to give consent. Its importance increases with the age and maturity of the minor.

The Defendant suggests that in practice she does not apply the policy as rigidly as might appear to be the case on its face. In particular, in her Detailed Grounds, her Detailed Grounds Addendum and her letter of 3 January 2018 she said that the policy operated in ways that were different in practice. Nevertheless, the difficulty is that the policy as promulgated on 30 October 2017 says what it says on its face.

I do not accept Mr Quintavalle's argument that I should undertake a best interests analysis. There is no statutory definition of death, presumably at least in part because it is often hard for law to keep up with developments in medical science. The test for whether a patient is dead is in the first instance one for medical professionals. When the patient is in the tragic situation of someone like Midrar the relevant clinical tests are those set out in the 2008 Code, in particular section 6.

In contrast to the statute itself, the Mental Capacity Act 2005 Code of Practice does speak of applications to court in cases such as the present, but is contradictory in what it says about them. Paras 5.33 and 5.36 speak in terms of an application being made if there is any doubt or dispute about the doctor's assessment of the patient's best interests.

Cases of clinical negligence present particularly difficult problems. The factual background of cases can be very different and often quite complex. The nature and timing of the "event" to which the breach of duty gives rise will vary from case to case. The claimant did not observe the occurrence of the heart attack or death.