Report No. 196

Court's power to review the decision of the decision maker

The next question according to Ward LJ is whether the role of the Court is of a reviewer or a decision maker? In Re T: (Wardship: Medical treatment) 1997(1) All ER 906 (CA), the Court of Appeal went by the parents' refusal to the liver transplant of the patient: (Butler-Sloss, Waite, Rock L.J.J). Waite LJ stated in that case that the "scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is particularly irreconcilable with principles of child health and welfare widely accepted by the generality of mankind, and that, at the other end lie highly problematic cases where there is genuine scope for a difference between the parent and the Judge.

In both situations, it is the duty of the Judge to allow the Court's opinion to prevail in the perceived paramount interest of the child concerned but in cases as the latter end of the scale, there must be a likelihood (though never, of course, a certainty) that the greater the scope for genuine debate between one view and another, the stronger will be that inclination of the Court to be influenced by a reflection that in the last analysis, the best interests of every child include an expectation of difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its case has been entrusted by nature."

After thus referring to Waite LJ's observations, Ward LJ then considered two questions finall.- (1) What weight is to be given to parents wishes, (2) How the balance is to be struck: Ward LJ ultimately concludes: (p 41)

"I am in no doubt at all that the scales come down heavily in Jodie's favour. The best interests of the twins is to give the chance of life to the child whose actual bodily condition is capable of accepting the chance to her advantage even if that has to be at the cost of the sacrifice of the life which is so unnaturally supported. I am wholly satisfied that the least detrimental choice, balancing the interests of Mary against Jodie and Jodie against Mary, is to permit the operation to be performed".

Ward L.J. said that a declaration will be granted as above, provided it is lawful according to criminal law.

Then Ward LJ took up criminal law and agreed with Brooke LJ's separate opinion in the same case as to why doctors could not be found fault with on the criminal side if the twins were separated. He went into the definition of murder, the meaning of 'intention', the 'doctrine of double effect' (the act which produces a bad effect is nevertheless morally permissible if the action is good in itself), killing, unlawfulness, doctrine of necessity, policy of the law, legal duties; offending the sanctity of life principle, and concluded (pp 41-46)

"For these reasons, very shortly expressed, I conclude that the operation which I would permit, can be lawfully carried out"

Then Ward LJ considered the Human Rights Act, 1988 (which was yet to come into force) and the judgment of the European Commission Paton vs. United Kingdom (1980)3 EHRR 408, which construed Article 2 and he stated that the action proposed complied with that Act too.

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