Law Hospital NHS Trust v Lord Advocate and Another

Judgment Date22 March 1996
Date22 March 1996
CourtCourt 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

Law Hospital NHS Trust
Lord Advocate and Another

Scots law - medical treatment - court's power as parens patriae to allow treatment to be discontinued

Power to allow discontinuance of treatment of insensate patient

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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6 cases
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    • United Kingdom
    • Court of Session (Outer House)
    • 31 May 2005
    ...[1965] AC 656; [1964] 3 WLR 329; [1964] 2 All ER 999 Law Hospital NHS Trust v Lord AdvocateSCFLR 1996 SC 301; 1996 SLT 848; [1996] 2 FLR 407 Letang v Ottawa Electric Ry CoELR [1926] AC 725 Létourneau v Imperial Tobacco Ltd (1998) 162 DLR (4th) 734 Lewis v University of Bristol [1999] EWCA C......
  • Petitions By Cumbria County Council, Stockport Metropolitan Council And Blackpool Borough Council For The Exercise Of The Nobile Officium In Relation To The Children X, J, L & Y
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    • 19 October 2016
    ...X Cases referred to: Beagley v Beagley 1984 SC (HL) 69; 1984 SLT 202 Law Hospital NHS Trust v Lord Advocate 1996 SC 301; 1996 SLT 848; [1996] 2 FLR 407; (1998) 39 BMLR 166; [1996] Fam Law 670 McLaughlin, Petr 1965 SC 243; 1965 SLT (Notes) 57 Maitland, Petr 1961 SC 291; 1961 SLT 384 R v Kenn......
  • MH v Mental Health Tribunal for Scotland
    • United Kingdom
    • Court of Session (Inner House)
    • 15 March 2019
    ...[2018] 1 Cr App R 1; [2017] EMLR 29; [2017] Crim LR 998 Law Hospital NHS Trust v Lord Advocate 1966 SC 301; 1996 SLT 848; 1996 SCLR 491; [1996] 2 FLR 407; (1998) 39 BMLR 166; [1996] Fam Law 670 Murdoch v Young 1909 2 SLT 450 PW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] ......
  • NHS Trust A v M. NHS Trust B v H
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    • Family Division
    • Invalid date
    ...NZ HC. Herczegfalvy v Austria (1992) 15 EHRR 437, ECt HR. Ireland v UK (1978) 2 EHRR 25, ECt HR. Law Hospital NHS Trust v Lord Advocate [1996] 2 FLR 407, Ct of Sess. Matter of a Ward of Court [1995] 2 ILRM 401, Ir SC. McCann v UK (1995) 21 EHRR 97, ECt HR. Osman v UK [1999] 1 FLR 193, (1998......
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