Judge refuses to rule in case of dying boy

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A MOTHER lost her legal battle yesterday for a declaration that doctors had no right to go against her wishes by refusing her severely disabled child potentially life-saving treatment without first obtaining the backing of the courts.

A judge said the "blunt tool" of judicial review was not the right mechanism for dealing with such a sensitive problem and that any ruling risked unduly restricting doctors faced with a rapidly changing clinical position.

Carol Glass and her family were involved in an incident with doctors and police at St Mary's Hospital, Portsmouth last October after 15 relatives fought to resuscitate her 12-year-old son, David, who was close to death.

The doctors said he should have been allowed to die with dignity. However, David recovered from his ordeal and returned home.

The case is one of the worst examples of the breakdown of communication between doctors and patients and the hospital trust was criticised by the British Medical Association yesterday for acting without court backing. In a statement the BMA said decisions about when to withdraw treatment for dying children were among the most difficult faced by doctors and parents and every effort should be made to achieve consensus. Where this was impossible, further advice, including reference to the court, should be sought.

Dr Michael Wilks, the chairman of the BMA's ethics committee, said: "There does seem to have been a significant degree of avoidable communication difficulty ... further efforts could probably have been made."

At the High Court in London, Mrs Glass's lawyers said the Portsmouth Hospitals NHS Trust had acted unlawfully when it decided her brain- damaged child should be allowed to die with dignity and to administer the painkiller diamorphine.

Mrs Glass asked the court to declare that the trust could not act contrary to her wishes and unilaterally decide to "allow nature to take its course", and that it was bound by law to obtain guidance from the courts.

But Mr Justice Scott Baker said that since David was no longer a patient the court should not intervene. In a clear signal that parents cannot over-rule the decisions of doctors, he added: "It would be very difficult to frame any declaration in any meaningful terms in a hypothetical situation which did not unnecessarily restrict the proper treatment by the doctors in an ongoing and developing matter."

Without blaming either side, he said it was regrettable that the issue had not been taken to the Family Division of the High Court at the time to obtain a ruling as to what was in David's best interests.

He said David would receive any future treatment at Southampton General Hospital and if difficulties arose in the future, it would be "at least desirable" that the matter be referred to the High Court's Family Division "before the situation becomes acute.

"It is a very said case and no one who had heard the facts and background could doubt the devoted care of the Glass family for David," he said.

"I expressly make no findings or observations about where any fault lies for the events that occurred last October, nor am I in any position to express any view about any aspect of the doctors' clinical judgement." He refused leave to appeal.

After the hearing Mrs Glass, 37, said she was disappointed by the judge's decision. "I will never let this matter drop until someone is prepared to make a decision on how far doctors can go," she said.