Law Hospital NHS Trust v Lord Advocate and Another
| Jurisdiction | Scotland |
| Judgment Date | 22 March 1996 |
| Date | 22 March 1996 |
| Docket Number | No 33 |
| Court | Court of Session (Inner House - Full Bench) |
FULL BENCH
Lord President (Hope), Lord Clyde, Lord Cullen, Lord Milligan and Lord Wylie
Administration of justice—Courts of law—Court of Session—Jurisdiction—Whether competent for Court of Session, in exercise of parens patriae grant authority to have life sustaining treatment of patient inpersistent vegetative state stopped—Whether competent to declare that discontinuation would not constitute delict or crime—Court of Exchequer (Scotland) Act 1856, secs 1 and 19—Court of Session (Scotland) Act 1988, Sched 2.1
Administrative law—Hospital—Medical profession—Professional practice—Patient in persistent vegetative state—Whether competent to switch off life support machine where death would inevitably result within 10 to 14 days—Whether termination of life sustaining treatment constituted delict or crime—Whether legislation required.
Crime—Whether discontinuance of life sustaining treatment of patient in persistent vegetative state constituted crime—Whether civil wrong
Practice—Declarator—Discontinuance of treatment for patient in persistent vegetative state and on life support machine—Whether competent for civil court to grant declarator that termination of life sustaining treatment not unlawful under criminal law—No contradictor—Whether live issue for debate—Whether declaratory process be used when alternative process available—Discretion of the court—Court of Exchequer (Scotland) Act 1856, secs 1 and 19—Court of Session (Scotland) Act 1988, Sched 2
Practice—Jurisdiction—Parens patriae—Whether Court of Session retained parens patriae jurisdiction—Whether petition be by way of application to Outer or Inner House—Court of Exchequer (Scotland) Act 1856, secs land 19—Court of Session (Scotland) Act 1988, Sched 2
Reparation—Negligence—Professional negligence—Medical profession—Discontinuance of life sustaining treatment for patient in persistent vegetative state—Whether duty of care existed to maintain treatment—Whether discontinuance of treatment constituted wrong in civil or criminal law—Whether legislation required
Section 1 of the Exchequer Court (Scotland) Act 1856 provided that: “The whole power, Authority and Jurisdiction at present belonging to the Court of Exchequer in Scotland, as at present constituted shall be transferred to and vested in the Court of Session and the Court of Session shall be also the Court of Session in Scotland.” Section 19 provided that the duties of the Court of Exchequer in regard to the appointment of tutors-dative were to be performed by the Inner House. That section was repealed by Sched 2 of the Court of Session Act 1988 and was not re-enacted.
A patient suffered from irreversible damage to the cerebral cortex and fell into a persistent vegetative state in 1992. Permanently insensate, the patient remained alive only because feeding and hydration were provided to her artificially and because of the nursing care she received in a hospital. Medical experts opined that her case was useless and there was no useful avenues of treatment to explore. The patient was unable to consent to treatment ceasing and her family agreed with the experts that the treatment should stop. The
hospital thereafter brought an action concluding for declarator that the cessation of treatment was lawful and would not constitute a delict or crime. The Lord Advocate appeared as defender in the public interest along with the family members and the curator ad litem to the patient. The Lord Ordinary (Lord Cameron of Lochbroom) reported the matter to the Inner House as he doubted the competency of the procedure. The defenders argued (a) that the proposed declarator was unnecessary because the Court of Session retained a jurisdiction on behalf of the Sovereign asparens patriae to authorise treatment or the withdrawal of treatment on behalf of a person who was incapable of giving authority; (b) that the process was incompetent as the declarator lacked a contradictor, and (c) that the declarator was too wide as it sought a declaration as to whether or not the proposed conduct was a crime which would amount to an intrusion by the Court of Session into criminal law which was the exclusive province of the High Court of Justiciary.Held (by a court of five judges) (1) that there was no doubt that a medical practitioner who acted or omitted to act with the consent of his patient of full age and capacity required no sanction or other authority from the court, for the consent rendered lawful that which would otherwise be unlawful; but (2) that where capacity to consent was lacking, the question whether it would be lawful to cease to pro vide or to withhold treatment could not be left to doctors but was a matter for the courts as Parliament had not declared on it; (3) that the law became relevant to the process of decision-taking because a breach of duty was a delict which might give rise to a liability of damages and a deliberate omission which caused death might also expose the medical practitioner to the allegation that his conduct was criminal and a prosecution might follow on the ground that his conduct amounted to murder or at least to culpable homicide; (4) that the criminal law was ill-suited to control the conduct of doctors in the exercise of their skill and judgment, especially when they had acted in accordance with proper professional practice, but the threat of a criminal sanction and of the devastating effects which that might have on the accused and his family was a real one so that the medical profession was entitled to look to the courts in Scotland to provide to doctors, by declaration, clear rulings as to whether the course they proposed to adopt was or was not lawful; (5) that although there was no live controversy in the case between the pursuers and any other party about the legal consequences of the withdrawal of treatment, its purpose was to give guidance and reassurance to the pursuers and to the patient's medical practitioner about the legal consequences of terminating the treatment insofar as competent for the court to give, and there was no doubt that there was a live practical issue for them in the case for it had been made clear that without that guidance and reassurance they would not feel able to discontinue the treatment in light of the risks they would otherwise be exposed to, which were too great and were not diminished as the curator ad litem had sworn in his affidavit that it was in the patient's best interests that the patient's treatment and care should continue, so that it was competent for the Lord Ordinary to grant declarator in the special circumstances of this case albeit that such an action would be inappropriate in all future cases where the parens patriaejurisdiction of the Court of Session was available to be exercised; but (6) that it was not competent for the Court of Session to declare that a proposed course of action was or was not criminal, for it was undesirable for that court to define what did or did not amount to criminal conduct unless that was essential in order to decide an issue which a party had an interest to raise in that court and any such declarator would not be binding on the High Court of Justiciary or the Lord Advocate who would be entitled in the public interest to bring the matter before the criminal courts irrespective of the views of the Court of Session; (7) that it was for the High Court of Justiciary to define what conduct was or was not criminal under the law of Scotland, as that was the supreme court of criminal jurisdiction in Scotland from whose decisions no appeal to the House of Lords was competent, unlike an appeal to the court from the decisions of the Court of Session; so that (8) the declarator had to be amended to make it clear that the declaration was to be given in regard to the civil law consequences only, some other solution requiring to be found as to how the reassurance in regard to the criminal consequences of that conduct could be given to the pursuers and the medical practitioner; (9) that it was competent to apply to theparens patriae jurisdiction of the Court of Session for authority to discontinue treatment for patients in a persistent vegetative state, as that jurisdiction which was transferred to and vested in the Court of Session by sec 1 of the 1856 Act was not abolished by the repeal of sec 19 by the 1988 Act; and, in any event, an application to the nobile officium of the Court of Session could have the same result if the jurisdiction had been abolished; (10) that the test to be applied was whether the proposed course was in the best interests of the patient, and the decision whether an application would be necessary where it was intended to withdraw treatment had to rest in each case with those responsible for carrying the intention into effect, having regard in particular to the views of the patient's relatives and any statements of policy which might be issued by the Lord Advocate although neither the wishes of the family nor the burden or continued care should predominate over the primary consideration of the position of the patient; (11) (per the Lord President (Hope)) that applications to the parens patriae jurisdiction of the Court of Session should normally be made by petition and these petitions should, in the absence of any practice direction or rule of court to the contrary, be dealt with as petitions to the Inner House but, in the circumstances, the Lord Ordinary would be authorised to exercise the jurisdiction on behalf of the court; (12) that the question for the Lord Ordinary was whether he should grant a declarator as to the civil law consequences of the proposed conduct (which would be unnecessary in future cases) and whether, in the exercise of the power given to him by the Inner House, he should authorise what was proposed to be done, the test for each branch of the question being the same, being whether it was in the best interests of the...
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