The Case of Re B (A Minor

received relaxant drugs or alternatively should have been warned of the risks. Not having received this, he took the case to court.

The judges decided that the claimant is not negligent simply because their doctor shares a different opinion and that is not for a judge to decide which of two different approaches to treatment is correct and should be left for medical professionals. As they had collectively decided that the doctor was not in breach of duty, the House of Lords composed the Bolam Test "a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. This emphasised the importance of consulting medical professionals and also helped shaped medical negligence law.

By Keira Cummings, Year 12 North London Collegiate

The case of Re B (a Minor) referred to a child born with Down’s Syndrome and an intestinal blockage that was likely to cause death if the obstruction was not relieved. An operation was required for the child’s survival; however, the child may have died within a few months of the operation or lived another 20 or 30 years. The parents refused to consent to the operation, believing it to be kinder to the child to die than live as physically and mentally disabled. The child was made a ward of court by a local authority,

which, as defined by Thomson Reuters Practical law, is “a child under the supervision of and protected under the inherent jurisdiction of the High Court.” A surgeon decided that the wishes of the parents should be upheld and therefore the authority sought an order allowing other named surgeons to carry out the operation. The question of the case was based on the welfare of the child; would it be in the best interests of the child to undertake the surgery, rather than whether the wishes of the parents should be respected. The court ruled in favour of the NHS appeal, stating that if the surgery were a success, the child would be able to live the average life span of a person with Down’s Syndrome.

The judges presiding over the case were Dunn LJ and Templeman LJ, who both sympathised with the difficult decision the parents had had to make. However Templeman stated that the decision was now in the hands of the court and was “whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die, or whether the life of this child is still so imponderable that it would be wrong for her to be condemned to die.”

This case has been cited in several others such as Re A (Minors) (Conjoined Twins: Medical Treatment); also Re A (Children) (Conjoined Twins: Surgical Separation) CA 22 September 2000. This case considered twins born conjoined and medically both were unable to survive as one was dependent on the vital organs of the other. The doctors requested the court’s approval to separate the twins, which would lead to the death of one. The parents, who were devoutly Roman Catholic, resisted this. The court’s opinion was that the views of the parents were lesser than the duty of the court to protect the child, so therefore the choice had to be based on the

doctrine of necessity. The requirements for the doctrine of necessity are, according to Sir James Stephen, “(i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided.”

Another is that of Re J (a Minor) (Wardship: Medical Treatment) CA 1 October 1990, which involved a severely epileptic premature child who had suffered severe and permanent brain damage at birth. His life expectancy was undetermined, although certainly short, and he was not expected to live past late adolescence. The question was whether, if he suffered the need to go on a ventilator, as he had previously had to, the medical staff would re-ventilate him if he stopped breathing. Lord Donaldson of Rymington MR, the presiding judge for the case, referred to Re B, stating that it comes “very near to being a binding authority for the proposition that there is a balancing exercise to be performed in assessing the course to be adopted in the best interests of the child.” However, he disagreed that Templeman LJ’s distinction on the matter being based on the words “demonstrably so awful” should be used as a general measure in all cases.