R v Portsmouth Hospitals NHS Trust, ex parte Glass
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 21 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0721-15 |
| Docket Number | PTA 1999/6139/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 1999 |
[1999] EWCA Civ J0721-15
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST
(MR JUSTICE SCOTT BAKER)
Royal Courts of Justice
Strand
London WC2A 2LL
The Master of the Rolls
(Lord Woolf)
Lady Justice Butler-Sloss
Lord Justice Robert Walker
PTA 1999/6139/4
MR R GORDON QC and MS B HEWSON (Instructed by Messrs Leigh Day & Co, London, EC1M 4LB) appeared on behalf of the Appellant
MR J L MUMBY QC (Instructed by Messrs Wansbroughs Willey Hargrave, Winchester SO23 9WP) appeared on behalf of the Respondent
Wednesday 21 July 1999
LORD WOOLF, MR: This is an application for permission to appeal which involves difficult and delicate decisions by the court. The applicant, the mother of David Glass who is to have his thirteenth birthday on 23 July 1999, is appealing against a decision of Scott Baker J that it was not desirable for him to give relief on an application for judicial review. His decision fundamentally involved an exercise of his discretion as to what was the right course for the court to take. The application for judicial review was appropriately heard by Scott Baker J since, not only is he a senior judge of the Queen's Bench Division, he is also a judge who has had considerable experience concerning delicate issues such as this when he was a judge of the Family Division.
The position facing the court on this application for permission to appeal is summarised admirably in the skeleton argument of Mr Gordon, who appears on behalf of Mrs Glass. He sets out the situation in brief form. I will take the facts from that skeleton, albeit I appreciate that some of the things stated there may be controversial. For the purposes of this judgment I will assume they are correct.
Mr Gordon explains that David Glass is the mother's youngest child. He is very seriously disabled but, fortunately, not terminally ill. He is dearly loved and cared for most effectively by his mother, Mrs Glass, and her family. The mother wishes her son to live out his natural life span. Apparently, some United States' studies suggest a less than 50\50 chance of David being alive for more than a few years. Morphine, which depresses respiratory functions, was administered to David on 21 October 1998 against the mother's wishes by order of the chief executive officer of the respondent hospital, the Plymouth Hospital Trust, without first obtaining the sanction of the court. The breakdown in mutual trust which this engendered ultimately culminated in violent scenes between doctors and certain family members on the afternoon of 21 October. Mrs Glass was not involved in those scenes.
During this time other family members took it upon themselves to resuscitate David. The doctors later told the police that these actions prevented David from dying. At 18.40 pm an unqualified "Do Not Resuscitate" order was put in David's medical notes without consulting the mother. Should David be readmitted again, active treatment should be confined to those measures that relieve suffering. That does not include any resuscitation. The Trust says that this order was in position for the night and has since lapsed.
David returned home and was treated by his general practitioner, Dr Hughes, successfully. On 23 October an ex parte injunction was made by the Queen's Bench Division preventing some adult members of David's family from assaulting the respondent (the Trust) hospital staff, or its patients, or interfering with David's treatment, or entering upon the hospital save on specified conditions. The mother may attend David while he is an in-patient. Three other defendants may visit him there and all the defendants may attend hospital for treatment for themselves following a medical referral or emergency admissions.
By letter dated 23 November 1998 the respondent hospital told David's MP that:
"David is dying, albeit that this is in the sense of terminally ill rather than immediate."
Despite this letter, and despite predictions by various hospital personnel in July and October last year that David was dying, David has not died. That is how the mother sets out the position in summary terms. As I have already indicated, not all she says would be accepted by the other parties to this decision.
A letter dated 5 November 1998 was written by the Trust indicating that its paediatric staff no longer felt confident that they could give David the care which he deserves. The letter stated:
"Unfortunately the Trust believe that all we could offer David would be to make his remaining time as comfortable as possible and take no active steps to prolong his life. This obviously means withholding or giving treatment with which you may not agree."
When the case came before Scott Baker J, it was substantially common ground that it would not be in David's interest to be treated by the Trust unless he required emergency treatment. Southampton University Hospital Trust had agreed to treat David in the future if he developed any problems requiring hospital care.
A representative of the Southampton Trust said in a letter:
"I feel it is important that any future presenting illness should be discussed in detail with the mother and the appropriate options for treatment considered as would happen with any other child. Decisions in relation to management must be in David's best interest and made in conjunction with the mother."
I have to look at the situation as it was on the ground at the time the case came before the judge:
(1) the general practitioner, Dr Hughes, had the confidence of the mother;
(2) there was an arrangement reached with the Southampton Hospital Trust which took a view which, as I understand it, was a view with which Mrs Glass was happy. However, I do recognise that the Southampton Hospital was not as convenient from her point of view as the Portsmouth hospital.
In his judgment, the judge pointed out that the case involves the inter-relationship of the boundaries of a number of principles. He set those out as follows:
"1. The sanctity of life.
2. The non-interference by the courts in areas of clinical judgment in the treatment of patients."
I would add a qualification to the second statement of "non-interference by the courts". This is where this can be avoided in areas of clinical judgment in the treatment of patients.
"3. The refusal of the courts to dictate appropriate treatment to a medical practitioner."
I add a further qualification and say that this is subject to the power which the courts always have to take decisions in relation to the child's best interests. In doing so, the court takes fully into account the attitude of medical practitioners.
"4. That treatment...
To continue reading
Request your trial
-
CF v Secretary of State for the Home Department and another
...Mayor and Burgesses of the London Borough of Hackney, ex p S (No 2) [2001] EWHC Admin 228. R v Portsmouth Hospitals NHS Trust, ex p Glass[1999] 3 FCR 145, [1999] 2 FLR 905, CA. Roddy (a child) (identification: restriction on publication), Re, Torbay BC v News Group Newspapers[2003] EWHC 292......
-
Re W (A Child) (Medical Treatment: Best Interests)
...Having recorded the arguments addressed to him, and considered the decisions of this court and the ECtHR respectively in R v Portsmouth Hospital NHS Trust ex pate Glass [1999] 2 FLR 905 (hereinafter referred to as Glass I) and Glass v UK [2004] 1 FLR 1019 (hereinafter Glass II) he said: — ......
-
F v Secretary of State for Home Department and Another
...Mr Wise and Miss Foster have sought to found on A v Liverpool City Council [1982] AC 363, R v Portsmouth Hospitals NHS Trust ex p Glass [1999] 2 FLR 905,Re W and B, Re W (Care Plan) [2001] EWCA Civ 757, [2001] 2 FLR 582 (not affected on this point by In re S (Minors) (Care Order: Implemen......
-
Re R (A Child) (IVF: Paternity of Child)
...Ministry of Defence, ex p Smith [1996] QB 517, [1996] 1 All ER 257, [1996] 2 WLR 305, CA. R v Portsmouth Hospitals NHS Trust, ex p Glass[1999] 3 FCR 145, [1999] 2 FLR 905, CA; affg (1999) 50 BMLR Roy v Kensington and Chelsea and Westminster Family Practitioners Committee [1992] 1 AC 624, [1......
-
Demonstrably Awful: The Right to Life and the Selective Non‐Treatment of Disabled Babies and Young Children
...(Child In Care: Medical Treatment) [1992] 3 W.L.R. 507; [1992] 4 All E.R.614; Rv. Portsmouth Hospitals NHS Trust, ex parte Glass [1999] 2 F.L.R. 905, 50B.M.L.R. 269 and A NHS Trust v. D & others (2000) 55 B.M.L.R. 19; Glass v. UK(2004) 9 March 2004; No. 61827/00.24 [1990] 2 W.L.R. 140; [199......