Law Hospital NHS Trust v Lord Advocate and Another
| Jurisdiction | Scotland |
| Judgment Date | 22 March 1996 |
| Date | 22 March 1996 |
| Court | Court of Session |
Inner House of the Court of Session
Before the Lord President (Lord Hope of Craighead), Lord Wylie, Lord Cullen, Lord Clyde and Lord Milligan
Scots law - medical treatment - court's power as parens patriae to allow treatment to be discontinued
The Court of Session had power, in the exercise of the Sovereign's authority as parens partiae, to authorise a medical practitioner to discontinue life-sustaining treatment that was being provided to a patient who was permanently unconscious and insensate. Whether or not such authority should be granted depended upon whether or not it was in the best interests of the patient that his or her life be prolonged by the continuance of the treatment.
The Inner House of the Court of Session, sitting as a court of five judges, so held: (i) giving guidance to the Lord Ordinary (Lord Cameron of Lochbroom) in an action of declarator brought by the Law Hospital NHS Trust against the Lord Advocate and the curator ad litem to X, a patient at the hospital, which, after evidence had been heard and findings in fact had been made by the Lord Ordinary, had been reported by him to the Inner House, and (ii) returning the cause to the Lord Ordinary with an instruction to put it out by order for a discussion as to further procedure in the light of the ruling of the Inner House.
Miss Lynda Clark, QC and Mr Jonathan Brodie for the pursuers; Lord Mackay of Drumadoon, QC, Lord Advocate and Mr Gerard Moynihan for the Crown; Mr Colin McEachran, QC and Miss Nikola Stewart for the patient's curator ad litem.
THE LORD PRESIDENT said that the patient had been in a persistent vegetative state for at least three years. There was no prospect of any improvement in her condition.
She remained alive only because feeding and hydration were provided to her artificially and because of the nursing care that she continued to receive. Her consultant physician and three consultant neurologists considered her position to be hopeless and that there were no useful avenues of treatment to explore.
Her next of kin had agreed that life-sustaining and medical treatment should be discontinued. The patient herself, however, was unable to give her consent.
Function of the court
A medical practitioner who acted or omitted to act with the consent of his patient required no sanction from the court. The patient's consent rendered lawful what would otherwise be unlawful.
The problems arose where the patient was not of full age or lacked capacity to consent to what was being proposed. The question whether it would be lawful to cease to provide treatment could not be left to the medical profession, for it was a matter for the law, and had to be decided by the courts so long as there...
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