Skeleton Argument

IN THE SUPREME COURT OF THE UNITED KINGDOM ON APPEAL FROM THE COURT OF APPEAL BETWEEN:

Appellant    LS

-AND-

Respondent    Z Hospital NHS Trust

Skeleton argument on behalf of the appellant

Introduction

1. This is an appeal by the appellant, LS, against the decision in the Court of Appeal giving the respondent, Z Hospital NHS Trust, permission to perform the heart transplant.
2. The appellant asks the court to overturn this decision for the following reasons:
   1. The decision in Re W (A Minor) (Medical Treatment: court jurisdiction) [1993] Fam 64 should be overruled
   2. The heart transplant would be against the best interests of our appellant
   3. The heart transplant would be an infringement of the appellant’s rights protected under article 8 of the European Convention on Human Rights

Statement of the issues

3. The main issue in the case of the appellant is whether the right to respect of his private life under Article 8 of the Convention would be violated if the heart transplant were to happen.
4. The secondary issues are therefore considering whether the parents have a right to override a refusal of consent (or if the appellant’s consent is valid alone) and whether the authority relied on in the Court of Appeal can be overruled.

Brief overview of the facts

5. The appellant, hereafter referred to as LS, is sixteen years of age and has suffered a defect of the heart since birth – meaning he has had to endure painful treatment and surgical interventions to keep him alive. With one year remaining to live, LS has refused a heart transplant to prolong his life because he considers the quality of life after the operation to be unsatisfactory.
6. His parents, however, are in favour of him receiving the transplant. So, the respondent, Z Hospital NHS Trust, has applied to this court for an order permitting them to carry out the transplant, contrary to the appellant’s wishes.

First Submission

7. The Court of Appeal used the case of Re W[1] as the authority to argue that parents/ guardians and the court can override the child’s decision to refuse treatment where the treatment is in the child’s best interest. The case, involving a child of sixteen years of age (like in the current appellant’s case) who refuses consent to being transferred to a specialised treatment unit for anorexia nervosa.
8. The claimant was, by the standards set out in the Mental Capacity Act 2005 section 1(2)[2], sufficiently competent to make the decision. This was effectively vetoed by the relevant guardian, meaning the consent became valid.
9. I would submit that the Family Law Reform Act 1969 was not correctly applied in this case. Section 8(1)[3] provides that ‘the consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age’. If this statute had been correctly applied to the case, W would have held the rebuttable right to refuse medical treatment – as an adult of her competence would similarly possess.
10. The primary authority supporting an adult’s right to refuse life-prolonging treatment is Re B (Adult: Refusal of Medical Treatment) [2002] 2 All England Reports 449. The claimant effectively refused life-sustaining treatment, and recovered an actionable battery for damages.
11. Following the weight awarded to this precedent, the Court in Re W[4] should have respected the claimant’s wishes to not be transferred to the treatment unit, instead of moving her against her will.
12. This level of consideration was classified as ‘Gillick competent’ in Gillick v West Norfolk & Wisbeck Area Health Authority[5] where Lord Scarman stated that “the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”[6]
13. Therefore, being sixteen years of age and deemed as competent should have made her guardian’s consent void – meaning said authority should be rendered void and overturned.
14. My learned friend may seek to persuade the court that Re W may be distinguished because refusal of treatment requires a different capacity to consent to treatment, as the appellant with anorexia nervosa was not refusing all treatment whereas our appellant LS is. But this argument can be diminished by taking a purposive approach to interpreting the statute.
15. Section 1(3) of the Children Act 1989, which the Court relied on in this case, aims to give more weight to the wishes of each individual by placing emphasis on consent rather than the medical opinion. The purpose of being able to override a refusal of treatment is to do so for the benefit of the child and their wellbeing. But this must be balanced against the autonomy of the individual and their immediate wishes. Subsections b) and f) respectively give importance to emotional needs and how capable her guardians are of meeting her needs.
16. Nowhere in this statute is there a mention of exceptions for refusal of life-saving treatment. This suggests the purpose of the statute is absolute autonomy to the competent individual, regardless of the succeeding effects. Henceforth, the freedom to consent implies no extra capacity is needed for refusal.

Second Submission

17. The opposition may follow the words of Lord Fraser in Gillick[7] saying “in the overwhelming majority of cases, the best judges of a child’s welfare are his or her parents”.[8]
18. Even in the circumstances of Re W not being overturned and parents/guardians maintaining the ability to veto the refusal of treatment, my second submission would argue that this veto would not be in the best interests of the appellant.
19. A conflict exists between the wishes of LS and the general interest in keeping him alive. The Mental Capacity Act 2005 establishes that a patient must be able to balance information to make their decision[9].
20. In making his decision, LS has considered the lowered quality of life that taking immunosuppressants forever would cause: namely the extensive side effects of increased vulnerability to STDs, kidney issues, weakened bones (osteoporosis) and an increased risk of certain types of cancer. The ability to contemplate the potential effects of his decision and weigh them against each other proves that he possesses the mental capacity required.
21. Taking these drugs would also alienate the appellant from the lifestyle of a regular teenager, as drinking alcohol and smoking (even passively) could cause damage to the transplanted heart.
22. LS has contemplated this lifestyle against his current endurance of regular painful treatment and personally refused a transplant as he does not wish to live with these restrictive effects.
23. Because his decision has been made in light of his experiences, and based on his ideology of a satisfactory quality of life, I submit that the appellant’s wishes should be given more weight – and that it would be wrong for others to dictate this pivotal outcome.
24. Lord Donaldson endorses this prioritisation in Re T (Adult: Refusal of medical treatment)[10] by saying the ‘right to live his own life how he wishes, even if it will damage his health or lead to his premature death’ should override ‘society’s interest in upholding the concept that all human life is sacred’.[11]

Third Submission

25. The last submission argues that if the Z Hospital NHS Trust were to perform the heart transplant, this would amount to a breach of LS’s rights under Article 8 of the European Convention on Human Rights. The rights under the Article protect respecting his ‘private and family life, his home and his correspondence’[12], of which the first is most relevant to LS.
26. Any interferences by the state, or any sector within it such as the National Health Service, must be ‘in accordance with the law’[13], correspond to a legitimate aim of the ECHR and be ‘necessary in a democratic society’.[14]
27. The first requirement can be satisfied if the precedent used as authority in the Court of Appeal decision, Re W[15], as overturned as in the first submission. The most likely aim to be relied on is the ‘protection of health’; the heart transplant must be proportionate to achieve this.
28. On the face of it, the protection of health may correspond to preserving LS’s physical wellbeing by prolonging his life through the transplant and the immunosuppressants to follow. However, the mental element of health cannot simply be ignored in such a sensitive case. Although the transplant would likely prevent his heart failing, it will indefinitely trigger more long-term issues of psychological wellbeing, like feeling as though his parents have made life decisions for him[16] or the damaging effects of alienation during his teenage years as mentioned above.
29. This principle can be applied in the content of a democratic society in two ways.
    1. Firstly, the concept of a democracy revolves around the choice of the people, and decisions not being dictated by a closed minority. This would require a direct connection between the implemented changes (in this case, the heart transplant) and those who voted for them. This principle supports the above point that LS’s parents are not the recipient of the heart transplant or its repercussions, so should not be able to overrule the opinion of the individual that is.
    2. Alternatively, the necessity in a democratic society could be in response to a pressing need which must be ‘proportionate to the legitimate aim pursued’.[17] Where a fundamental right is invoked by the applicant, there lies a burden on the state to prove the ‘pressing social need’ for limiting it. Following the aim of protection of health, the court should consider the extensive consequences of the heart transplant against the aim that the Convention rights are trying to achieve. In recent cases concerning Article 8 rights, it has been noted that ‘the very essence of the Convention is respect for human dignity and human freedom’[18], particularly giving weight to personal autonomy and bodily integrity[19]. In such sensitive cases, the aim of protection of health in the public interest cannot justify forceful intervention on an individual’s autonomy. This balance has been considered and decisively tilts in favour of the appellant. Risking such detrimental to LS’s integrity and will to make his own decisions would not be proportionate to the importance of protecting his health, even if it results in his subsequent death.

Conclusion

30. The appellant invites the Court to uphold his appeal for the following reasons:
    1. The Family Law Reform Act 1969 was incorrectly relied on in the authority used in the Court of Appeal. If correctly applied, the appellant in Re W’s refusal of consent would be deemed as ‘effective as it would be if he were of full age’[20], therefore overruling the Court’s decision.
    2. The heart transplant, although life-sustaining, would not be in the best interests of the appellant.
    3. The protection of health as a legitimate aim is not sufficient to justify an interference to the appellant’s rights under Article 8 of the Convention, therefore constituting a violation.

Bibliography

Cases

• Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112
• Goodwin v UK [2002] 35 EHRR 18
• Handyside v UK [1976] ECHR 5
• Olsson v Sweden (No 1) [1988] 11 EHRR 259
• Pretty v UK [2002] 35 EHRR 1
• Re B (Adult: Refusal of Medical Treatment) [2002] 2 All England Reports 449
• Re E (A Minor) [1990] 9 BMLR 1
• Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810
• Re T (Adult: Refusal of medical treatment) [1992] 4 All ER 649
• Re W (A Minor) (Medical Treatment: court jurisdiction) [1993] Fam 64
• The Queen on the application of Sue Axton v The Secretary of State for Health (The Family Planning Association: intervening) [2006] EWHC 37 (Admin)

Statutes

• Children Act 2004
• Family Law Reform Act 1969
• Mental Capacity Act 2005

Journal Articles

• Cave E ‘Adolescent consent and confidentiality in the UK’ (2009) European Journal of Health Law 16(4)
• Devereux JA, Jones DPH and Dickenson DL, ‘Can Children Withhold Consent to Treatment?’ [1993] BMJ 396

Books

• Elliston S, The Best Interests of the Child in Healthcare (Abingdon, New York: Routledge Cavendish, 2007)

[1] Re W (A Minor) (Medical Treatment: court jurisdiction) [1993] Fam 64

[2] A person must be assumed to have capacity unless it is established that he lacks capacity.

[3] Family Law Reform Act 1969

[4] Above 1

[5] [1986] AC 112

[6] Ibid

[7] Above 5

[8] Above 7 page 173E

[9] Mental Capacity Act 2005 s3(1)c

[10] [1992] 4 All ER 649

[11] Ibid

[12] ECHR Article 8(1)

[13] Article 8(2) ECHR

[14] Handyside v UK [1976] ECHR 5

[15] Above 1

[16]Emma Cave ‘Adolescent consent and confidentiality in the UK.’ (2009) European Journal of Health Law., 16(4)pp. 309-331.

[17] Olsson v Sweden (No 1) [1988] 11 EHRR 259

[18] Goodwin v UK [2002] 35 EHRR 259 para 90

[19] See Pretty v UK [2002] 35 EHRR 1

[20] Above 3 section 8(1)