Re T (an Adult) (Consent to Medical Treatment)

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS, LORD JUSTICE BUTLER-SLOSS, The Master of the Rolls, LORD JUSTICE STAUGHTON
Judgment Date30 Jul 1992
Neutral Citation[1992] EWCA Civ J0730-8
Docket Number92/0761

[1992] EWCA Civ J0730-8

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(MR JUSTICE WARD)

Royal Courts of Justice

Before:

The Master of the Rolls

(Lord Donaldson)

Lord Justice Butler-Sloss

Lord Justice Staughton

92/0761

Re "T."

MR JAMES MUNBY Q.C. and MR CHRISTOPHER BUTLER (instructed by The Official Solicitor) appeared for the Appellant.

MR ALLAN LEVY Q.C. and MR PETER RANK (instructed by The Smith Partnership) appeared for the Respondent (Plaintiff).

MR RICHARD DANIEL Q.C. (instructed by Messrs Hatchett Jones & Kidgell) appeared for the Respondent (Second Defendant).

MR DAVID STEMBRIDGE Q.C. and MR. STEPHEN OLIVER-JONES (instructed by the Solicitors to the Health Authorities) appeared for the Respondents (First and Third Defendants).

THE MASTER OF THE ROLLS
1

This appeal is not in truth about the "right to die". There is no suggestion that Miss T. wants to die. I do not doubt that she wants to live and we all hope that she will. This appeal is about the "right to choose how to live". This is quite different, even if the choice, when made, may make an early death more likely. It is also about whether Miss T. really did choose and, if so, what choice she made.

2

The public importance of these questions cannot be doubted, but this is nothing to do with Miss T. as a private individual. She is unconscious and her privacy should be respected. Those who are looking after her have a difficult task and it should not be made more difficult by being harassed by requests for information. Miss T. being an adult, it is doubtful whether we have power to make a restraining order of the kind which is often made in the case of children whose medical treatment is in issue before the courts, but I hope and believe that it is in any event unnecessary.

3

The right to choose

4

In recent months we have had to review the law in relation to the medical treatment of children (see Re "R." (A Minor) (Wardship: Consent to Treatment) [1992] Fam. 11 and In re "J." (C.A. transcript 10th July 1992)). These decisions have no application to adult patients. An adult patient who, like Miss T., suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered. The only possible qualification is a case in which the choice may lead to the death of a viable foetus. That is not this case and, if and when it arises, the courts will be faced with a novel problem of considerable legal and ethical complexity. This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent (Sidaway v. Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1985] A.C. 871, 904F-905A).

5

But just because adults have the right to choose, it does not follow that they have in fact exercised that right. Determining whether or not they have done so is a quite different and sometimes difficult matter. And if it is clear that they have exercised their right of choice, problems can still arise in determining what precisely they have chosen. This appeal illustrates both these problems.

6

The role of consent

7

The law requires that an adult patient who is mentally and physically capable of exercising a choice must consent if medical treatment of him is to be lawful, although the consent need not be in writing and may sometimes be inferred from the patient's conduct in the context of the surrounding circumstances. Treating him without his consent or despite a refusal of consent will constitute the civil wrong of trespass to the person and may constitute a crime. If, however, the patient has made no choice and, when the need for treatment arises, is in no position to make one—e.g. the classic emergency situation with an unconscious patient—the practitioner can lawfully treat the patient in accordance with his clinical judgment of what is in the patient's best interest.

8

There seems to be a view in the medical profession that in such emergency circumstances the next of kin should be asked to consent on behalf of the patient and that, if possible, treatment should be postponed until that consent has been obtained. This is a misconception because the next of kin has no legal right either to consent or to refuse consent. This is not to say that it is an undesirable practice if the interests of the patient will not be adversely affected by any consequential delay. I say this because contact with the next of kin may reveal that the patient has made an anticipatory choice which, if clearly established and applicable in the circumstances—two major "ifs"—would bind the practitioner. Consultation with the next of kin has a further advantage in that it may reveal information as to the personal circumstances of the patient and as to the choice which the patient might have made, if he or she had been in a position to make it. Neither the personal circumstances of the patient nor a speculative answer to the question "What would the patient have chosen?" can bind the practitioner in his choice of whether or not to treat or how to treat or justify him in acting contrary to a clearly established anticipatory refusal to accept treatment but they are factors to be taken into account by him in forming a clinical judgment as to what is in the best interests of the patient. For example, if he learnt that the patient was a Jehova's Witness, but had no evidence of a refusal to accept blood transfusions, he would avoid or postpone any blood transfusion so long as possible.

9

Miss T.'s history

10

Miss T.'s parents separated in 1975 when she was three years old. No doubt there were many reasons, but one was undoubtedly the fact that, whereas Mrs. T. was a fervent Jehova's Witness, Mr. T. emphatically rejected that faith. Initially Miss T. continued to live with her father, but six months later she was removed by her mother without her father's consent. In the ensuing proceedings custody of Miss T. was granted to her mother, which is not altogether surprising as she was still very young and was a girl. However the custody order expressly forbade Miss T. being brought up as a Jehova's Witness, the intention being that she should make her own decision when she was old enough to do so. This requirement was only partially met. Miss T. was never accepted into that faith by baptism or otherwise and therefore, as the sect has asserted in a statement to the press, "T. is not and never has been one of Jehova's Witnesses". On the other hand Mrs. T. quite clearly sought in all other respects to bring Miss T. up with a view to her becoming a Jehova's Witness.

11

In 1989, when Miss T. was 17 or 18, she moved from her mother's home to live with her paternal grandmother. A year later she met and began to live with C., who was the father of her baby who was later to be stillborn. During this period, and particularly very recently, Miss T.'s close relationship with her father which had existed when she was much younger was revived. According to her father they discussed the beliefs of the Jehova's Witnesses in May or June of this year and she informed him that she was not a Jehova's Witness. Mr. T. has also said in an affidavit that "there has never been anything whatsoever in [Miss T.'s] actions which led me to believe that she wished to become a Jehova's Witness".

12

On Wednesday 1st July, when Miss T. was 34 weeks pregnant, she was involved in a road traffic accident. She went to hospital where she complained of pain in her right shoulder and in the right side of her chest. She was not initially X-rayed because of her pregnant condition, but was advised to rest and to take an analgesic. She returned to the hospital in the early hours of Saturday 4th July complaining of increased chest pains. She was X-rayed and diagnosed as suffering from pleurisy or pneumonia. She was prescribed antibiotics and analgesics including Pethidin, which is a narcotic drug, and given oxygen. It is at this point that timings become important.

13

The hospital's patient assessment form contains the entry: "Religious beliefs and relevant practices. Jehova Witness ( Ex) but still has certain beliefs and practices". Whilst this may have been entered initially, this is not certain as the writing is not the same as some other entries such as that of Miss T.'s name and the name of the consultant. Miss T. was admitted to the ward at 6.10 a.m. and given 50 mg. of Pethidin together with antibiotics at 6.55 a.m. At that time she was very breathless, was expectorating dirty coloured sputum and complaining of severe chest and shoulder pains. Later during the morning she had a lung scan which did not reveal any abscess but showed a picture which was consistent with pneumonia. No alteration was therefore made in her treatment.

14

Shortly after 1 p.m. Miss T. was given another dose of Pethidin. At 6.30 p.m. Miss T.'s mother arrived at the hospital accompanied by C. Later that night, according to information given by the hospital to Miss T.'s father, Miss T. received more Pethidin.

15

Miss T.'s father arrived at the hospital at 8.30 a.m. on Sunday 5th July. He observed that his daughter was heavily sedated and that her breathing was extremely laboured. The nursing staff told her father that she had had no rest during the night and was in considerable pain. She was receiving oxygen and had to be raised every 30 minutes to enable her to clear sputum from her lungs, a process with which the father assisted. Miss T.'s father was anxious as to any complications which might...

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