Medical Treatment — Pragmatism and the Search for Principle
| Date | 01 November 1993 |
| Author | Nigel Lowe,Satvinder Juss |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01912.x |
| Published date | 01 November 1993 |
November
19931
Re
W
(A
Minor)
Such a position appears to have been adopted by Lord G~ff.~~ As Professor Birks
has said:
The Courts must give priority to the rule of law, not to expedient measures to meet fiscal
inconveniences; the legislators have the means, compatibly with the rule
of
law and subject to normal
political pressures, to provide for what is expedient.60
It is worthy of note that by section
53(4)
of the Finance Act 1991, Parliament has
barred all other building societies from taking the same point which the Woolwich
did.
So
much for the fear
of
fiscal disruption to the public purse.
Medical Treatment
-
Pragmatism and the Search for
Principle
Nigel Lowe* and Satvinder
Juss**
The
Background
In
Re
W (A
Minor) (Medical Treatment:
Court’s
Jurisdiction),’
the Court of
Appeal had to decide whether the High Court had power under its inherent
jurisdiction to make an order sanctioning the medical treatment of a 16-year-old
child (‘W’) contrary to her express wishes.
W had an unfortunate history. After the death of her parents she was received
into Local Authority care. Her first fostering placement was disastrous and she
was referred to a family consultation clinic. Within 16 months her foster mother
had surgery for cancer and shortly after that her grandfather, to whom W was
greatly attached, died. Later that year, W (then 14) began to develop signs of
anorexia nervosa. Her condition deteriorated. She was eventually admitted to a
specialist clinic where she had to be fed by nasogastrict tube and have her arms
encased in plaster.2 The consultant in charge of W’s case suffered a heart attack
and he felt that the responsibility for W’s treatment should either be removed from
him or shared.
It was against this background that the local authority sought leave under
s
lOO(3) of the Children Act 198g3 to make an application for the exercise by the
59
loc
cit
at
172E.
His Lordship felt that ‘common justice’ required tax paid pursuant to an unlawful
demand to be repaid, ‘unless special circumstances or some principle of policy requires otherwise’:
loc
cit
at
172C.
60
Birks, ‘The English Recognition
of
Unjust Enrichment’
(1991)
LMCLQ
472,
505.
*Professor of Law, Cardiff Law School.
**Lecturer in Law, Cardiff Law School.
1
[1992] 4
All ER
627
(CA). For comments on this case, see also John Eekelaar, ‘White Coats or
Flak
Jackets? Doctors, Children and the Courts
-
Again?’
(1993) 109
LQR
182- 187;
Hazel Houghton-
James, ‘The Child’s Right to Die’
[1992]
Fam Law
550-554;
and Rosy Thornton, ‘Minors and
Medical Treatment
-
Who Decides?’
[1993]
CLJ
33- 37.
For other cases concerned with the court’s
powers to override a child’s refusal of medical treatment, see
Re
R
(A
Minor) (Wardship: Medical
Treatment)
[1992]
Fam Law
11
(CA),
Re
E
(A
Minor)
(1990) 9
BMLR
1
per
Ward
J,
and
South
Glamorgun County Council
v
Wand
B
[1993]
1
FLR
574
per
Douglas Brown
J.
2
Lord Donaldson MR was at pains to stress that, contrary to press reports, W consented both to the
insertion and use of the tube and to the encasement (done to prevent her giving way to a compulsive
wish to injure herself by picking at her skin).
3
s
lOO(3)
states that:
‘No
application for any exercise of the court’s inherent jurisdiction with respect to
children may be made by a local authority unless the authority have obtained the leave of the court.’
865
0
The Modern
Law
Review Limited
1993
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