Download Judicial Precedent in Cases of Seriously Ill Newborns: Consent and Law Evolution and more Lecture notes Law in PDF only on Docsity! The doctrine of judicial precedent with special reference to the cases concerning seriously ill new born infants. Christopher Stone November 2009 Introduction The doctrine of precedent will be illustrated by examination of the common law telating to seriously ill infants. Childhood illness is an emotive subject; that which constitutes a ‘serious’ illness is open to subjective interpretation but will be taken as one that is life-threatening, either immediately or over a more protracted time scale, but with the same inevitable outcome. ‘Infancy’ is medically defined as the first year of life while ‘new born’ relates to the first 24 hours of life. The discussion that follows need not be so constrained; where a case in early childhood contributes to the discussion it will be cited. First, consideration will be given to the rules of precedent and its context within the wider system of U.K. law, E.U. law and the European Convention of Human Rights (ECHR). The doctrine of precedent In deciding matters of common law, the judiciary look to previous cases to determine what the law is — the doctrine of stare decisis (Latin: to stand by things decided). Landmark cases set a precedent for subsequent determinations and are recorded in the form of law reports. Where similarity exists to the prevailing conditions the precedent may be followed; where there is little similarity the material facts of the case must be distinguished in order to set the precedent aside. The ratio decidendi is central to this process, for it identifies the material facts upon which the judgement is based and is indicative of the scope of application of the precedent to subsequent cases. Judicial review according to precedent, along with statute, forms a binding legal authority. Persuasive authority includes obiter dicta, legal articles, legislative papers and decisions made in other jurisdictions. Obiter dicta, comments made ‘in passing’ during judicial review, are viewpoints on legal principle and are not constrained by the facts of the case. The more senior the judge, the more persuasive the obiter becomes. Stare decisis can be applied ‘vertically’ whereby precedent established in a higher court is binding upon those of lower ranking according to the hierarchical, ‘pyramidal’, organisation of U.K. courts, thereby enabling them to overrile decisions made in previous cases. It follows that precedent set in the Supreme Court is binding upon all other courts. A higher court may reverse or overturn a decision made in a lower court in consideration of a particular case, if that earlier decision were found to be defective ona matter of law. Stare decisis may also be applied ‘horizontally’ such that precedent set in one court is binding upon all other courts of similar ranking. Occasionally, higher courts (the Court of Appeal and the Supreme Court) may find an exceptional reason to depart from their own previous decisions. ’” The sovereignty of Parliament Common law continually evolves through the doctrine of precedent, but it cannot override statute. Parliament is not bound by precedent so is unaffected by its own previous decisions or those of the courts. The exception is where UK statutory law is in conflict with EU law, in which case EU law must be observed’. Convention rights The Human Right Act 1998* obliges the judiciary to interpret the common law such that it is in alignment with the ECHR*. Where there is debate over withholding life saving treatment, the child has a right to life under article 2; where treatment is non- consensual article 3 may be engaged, hence the importance of establishing next the law on consent. Precedent and consent for the medical treatment of minors Under the Children Act 1989 the parents of a child have the right to consent to treatment on behalf of their child ‘for the purpose of safeguarding or promoting the child’s welfare’®. Only one parent need provide consent’ but the law requires that parents should consult over broadly-defined ‘important’ treatment decisions*? Certain treatments are permitted only with the consent of the court, exercising its juwisdiction of parens patriae '°"', Where the parents and doctors disagree over what treatment is in the child’s best interests the court may be called upon to decide’. Occasionally the parents’ view may be upheld by the court to prevent treatment!?. If competent, that is to say fully understanding of the treatment and its consequences, a minor can consent to treatment as in Gillick v West Norfolk and Wisbech AHA \*. Here the obiter of Lords Templeman and Scarman enable doctors to provide treatment without parental consent if that treatment would indisputably save the life of the child, where the opinion of the parents cannot be sought or where, if sought and refused, there is insufficient time to make the child a ward of court. This ‘defence of | Young v Bristol Aeroplane Co. Ltd [1944] 1 KB 718. 2 Rv Howe [1987] AC 417. 3 European Communities Act 1972. 4 Human Rights Act 1989. 5 European Convention on Human Rights 1950. © Children Act 1989, s3(5). ” Children Act 1989, s3(7). 8 Re J(A Minor) (Prohibited Steps Order: Circumcision) [2000] 1 FLR 571. ° Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148. '° Re F (Mental Patient: Sterilisation) [1990] 2 AC 1. " Re D (A Minor) (Wardship: Sterilisation) [1976] 1 AN E.R. 326. ” Family Proceedings Rules 1991 Order 1991 SI 1247. 8 Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242. \4 Gillick v West Norfolk and Wisbech AHA [1986] AC 112. Table of Cases A, Re (Children) (Conjoined twin: surgical separation) [2001] Fam 147. Airedale NHS Trust v Bland [1993] AC 789. An NHS Trust v MB [2006] EWHC 507 (Fam). B, Re (A Child ) (Medical Treatment) [2008] EWHC 1996 (Fam). B, Re (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421. C, Re (A Minor) (Medical Treatment) [1998] FLR 384. C, Re [1996] 2 FLR 43. C, Re (Welfare of Child: Immunisation) [2003] EWCA Civ 1148. D, Re (A Minor) (Wardship: Sterilisation) [1976] 1 All E.R. 326. E, Re (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386. F, Re (Mental Patient: Sterilisation) [1990] 2 AC 1. Gillick v West Norfolk and Wisbech AHA [1986] AC 112. J, Re (A Minor) (Prohibited Steps Order: Circumcision) [2000] 1 FLR 571. J, Re (A Minor) (Wardship: Medical Treatment) [1990] 3 All ER 930. K, Re (A Child) (Withdrawal of Treatment) [2006] EWHC 1007 (Fam). L, Re (A Child) (Medical Treatment: Benefit) [2004] EWHC 2713 (Fam). National Health Service Trust vD [2000] 2 FLR 677. Portsmouth NHS Trust v Wyatt [2004] EWCA 2247 (Fam). RvHowe [1987] AC 417. T, Re (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242. Young v Bristol Aeroplane Co. Ltd [1944] 1 KB 718. Table of Statutes Children Act 1989 $3(5). $3(7). European Communities Act 1972. European Convention on Human Rights 1950. Article 2 Article 3 Human Rights Act 1989. Table of Statutory Instruments Family Proceedings Rules 1991 Order 1991 SI 1247. Bibliography V Harpwood. Modern Tort Law. (7 Ed. Routledge Cavendish, London 2009). J Hering. Medical Law and ethics. (2"' Ed. Oxford University Press, Oxford 2008). E Jackson. Medical Law: Text, Cases and Materials. (2"' Ed. Oxford University Press, Oxford 2010).