Re B (A Minor) (Wardship: Medical Treatment)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE TEMPLEMAN,LORD JUSTICE DUNN
Judgment Date07 August 1981
Judgment citation (vLex)[1981] EWCA Civ J0807-1
Docket Number81/0363
Date07 August 1981

[1981] EWCA Civ J0807-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

On appeal from Mr Justice Ewbank

Royal Courts of Justice

Before:

Lord Justice Templeman

Lord Justice Dunn

81/0363

Re B (A Minor)

MISS A. RYAN (instructed by Mr C.T. Mahoney) appeared on behalf of the Local Authority.

MR ROGER GRAY Q.C. and MR C. CUNNINGHAM (instructed by Mr J.R.K. Hughes) appeared on behalf of the Parents.

MR HENRY TURCAN (instructed "by the Official Solicitor) appeared on behalf of the guardian ad litem.

LORD JUSTICE TEMPLEMAN
1

This is a very poignantly sad case. Although we sit in public, for reasons which I think will be obvious to everybody in court, and if not will be obvious in the course of this judgment, it would be lamentable if the names of the parents of the child concerned were revealed in any way to the general public. The press and people who frequent these courts are usually very helpful in referring to names by initials, and I do think that this is a case where nothing ought to be leaked out to identify those concerned with the case.

2

It concerns a little girl who was born on the 28th July 1981. She was born suffering from Down's syndrome, which means that she will be a mongol. She was also born with an intestinal blockage which will be fatal unless it is operated upon. When the parents were informed of the condition of the child they took the view that it would be unkind to this child to operate upon her, and that the best thing to do was for her not to have the operation, in which case she would die within a few days. During those few days she could be kept from pain and suffering by sedation. They took the view that would be the kindest thing in the interests of the child. They so informed the doctors at the hospital, and refused to consent to the operation taking place. It is agreed on all hands that the parents came to that decision with great sorrow. It was a firm decision, they genuinely believed in the best interests of this child. At the same time it is of course impossible for parents in the unfortunate position of these parents to be certain that their present view should prevail. The shock to caring parents finding that they have given birth to a child who is a mongol is very great indeed, and therefore while great weight ought to be given to the views of the parents they are not views which necessarily must prevail.

3

What happened then was that the doctors being informed that the parents would not consent to the operation contacted the local authority who very properly made the child a ward of court and asked the judge to give care and control to the local authority and to authorise them to direct that the operation he carried out, and the judge did so direct. But when the child was moved from the hospital where it was horn to another hospital for the purposes of the operation a difference of medical opinion developed. The surgeon who was to perform the operation declined to do so when he was informed that the parents objected. In a statement he said that when the child was referred to him for the operation he decided he wished to speak to the parents of the child personally and he spoke to them on the telephone and they stated that in view of the fact that the child was mongoloid they did not wish to have the operation performed. "I decided therefore to respect the wishes of the parents and not to perform the operation, a decision which would I believe (after about twenty years in the medical profession) be taken by the great majority of surgeons faced with a similar situation".

4

Therefore the local authority came back to the judge. The parents were served in due course and appeared and made their submissions to the judge, and in addition inquiries were made and it was discovered that the surgeon in the hospital where the child was born and...

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