In the case of Regina v C in 1989 a premature baby was severely and irreversibly handicapped; she was also terminally ill. The court was asked in wardship to give directions about her treatment. The court held that she should be treated in accordance with medical advice in a manner which would not prolong her life and which would enable her to die peacefully and with the least amount of pain, suffering and distress. To this end the court approved the withholding of life-saving treatment and artificial hydration and nutrition (unless this would cause her suffering).
In the case of Regina v J (1990) the court was again asked whether it would be lawful to allow a severely physically and handicapped baby to die. In this case, although the child was currently very ill, he was not dying. It was argued that it is never justified to withhold or withdraw life-sustaining treatment, irrespective of the child's quality of life, unless the child is already dying. This view was rejected by the court because to 'preserve life at all costs, whatever the quality of life to be preserved, and however distressing to the child, may not be in the child's best interests'.
It is true that in each case the court was concerned with whether it is lawful to withhold or withdraw life-saving treatment, rather than whether it is lawful to take active steps to accelerate death. Indeed, the court was at pains to emphasise this.
However, the line between taking steps to preserve life and taking steps to end it came perilously close to merging when the court authorised the withdrawal of artificial hydration and nutrition. Babies, through lack of capacity, will always be dependent on others for the preservation of their lives through provision of basic care.
It is suggested that a civil action, similar to wardship, should be made available to doctors who are confronted with an appalling dilemma similar to the one faced by Dr Cox. Apart from being cruel and inappropriate to the circumstances, criminal trials are ill- suited to determining these types of complex issues including when, if at all, it is correct for a doctor to take steps to relieve suffering and accelerate death by acting in a manner which fully accords with his dying patient's wishes.
Reader in Law
University of SheffieldReuse content