Health - 1990

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This page lists 4 cases, and was prepared on 28 October 2012.

In re C (A Minor) (Wardship: Medical Treatment) [1989] 2 All ER 782 CA; [1989] 3 WLR 240; [1990] Fam 26
1990 FD	Children, Health	Casemap 1 Cites 1 Citers

Malette -v- Shulman Jobes, In re (1990) 67 DLR (4th) 321; (1987) 529 A 2d 434
1990 Robins JA	Health, Human Rights	Casemap 1 Citers
	"The right to determine what shall be done with one's own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority."

In re J (a Minor) (Wardship: Medical treatment) (1991) Fam 33; [1990] 3 All ER 930; [1991] 2 WLR 140; Times, 03 October 1990; [1992] 1 FLR
1 Oct 1990 CA Lord Donaldson of Lymington MR	Health, Children	Casemap 1 Cites 1 Citers
	J was born at 27 weeks', weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop serious spastic quadriplegia, would be blind and deaf and was unlikely ever to be able to speak or to develop even limited intellectual abilities. It was, however, likely that he would feel pain to the same extent as a normal baby. His life expectancy was uncertain but he was expected to die before late adolescence, although he could survive for a few years. He had been ventilated twice for long periods when his breathing stopped, that treatment being both painful and hazardous. The medical prognosis was that any further collapse which required ventilation would be fatal. However he was neither on the point of death nor dying. The question thus arose as to whether, if he suffered a further collapse, the medical staff at the hospital where he was being cared for should re-ventilate him in the event that he stopped breathing. Held: The court could, exercising its wardship jurisdiction, authorise the withholding of medical treatment from a child which would result in the child's life being threatened, provided that any continued life for the child with treatment would be intolerable. The court identified three preliminary steps. The first was that welfare is the court's paramount consideration. "Secondly, the court's high respect for the sanctity of human life imposes a strong presumption in favour of taking all steps capable of preserving it, save in exceptional circumstances. The problem is to define those circumstances. Thirdly, and as a corollary to the second principle, it cannot be too strongly emphasised that the court never sanctions steps to terminate life. That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life." (Taylor LJ) and "I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child. I say "to that child" because the test should not be whether the life would be tolerable to the decider. The test must be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable." Lord Donaldson of Lymington MR: "Re B seems to me to come 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. This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but even excepting the 'cabbage' case to which special considerations may well apply, it is not irrebuttable. As this court recognised in In re B., account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself. B was probably not a borderline case and I do not think that we are bound to, or should, treat Templeman LJ's use of the words 'demonstrably so awful' or Dunn LJ's use of the word 'intolerable' as providing a quasi-statutory yardstick. … we know that the instinct and desire for survival is very strong. We all believe in and assert the sanctity of human life. As explained, this formulation takes account of this and also underlines the need to avoid looking at the problem from the point of view of the decider, but instead requires him to look at it from the assumed point of view of the patient. This gives effect, as it should, to the fact that even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's, and mankind's, desire to survive. I make no apology for having spent time on the generality of the problem which faces doctors and the court in cases of this nature. The Official Solicitor invited us to do so and if we can succeed in achieving any degree of clarification, it will be worthwhile in terms of assisting those who have to make these very difficult decisions at short notice and in distressing circumstances. However, I now turn to the instant appeal. The issue here is whether it would be in the best interests of the child to put him on a mechanical ventilator and subject him to all the associated processes of intensive care, if at some future time he could not continue breathing unaided."

Regina -v- Minister Of Agriculture, Fisheries And Food And Secretary Of State For Health, Ex Parte: Fedesa And Others. (Community Law ) C-331/88; R-88/14; [1990] EUECJ R-88/146; [1990] ECR I-4023
13 Nov 1990 ECJ	European, Agriculture, Health	Casemap 1 Citers
	Europa 1. Community law - Principles - Legal certainty - Protection of legitimate expectations - Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity as to their harmlessness - Infringement - None (Council Directive 88/146) 2. Community law - Principles - Proportionality - Prohibition of an economic activity - Whether disproportionate - Assessment criteria - Discretionary power of the Community legislature in the field of the common agricultural policy - Judicial review - Limits (EEC Treaty, Arts 40 and 43) 3. Community law - Principles - Equal treatment - Harmonization measure applied equally to all the Member States - Differing effects depending on the previous state of national law - Discrimination - None 4. Agriculture - Approximation of laws - Prohibition of the use in livestock farming of certain substances having a hormonal action - Objectives pursued - Choice of legal basis - Article 43 of the Treaty - Misuse of powers - None (EEC Treaty, Arts 39 and 43, Council Directive 88/146) 5. Measures adopted by the Community institutions - Procedure for enactment - Preparatory documents not affected by a procedural defect occurring at the stage of the final decision in the Council leading to annulment by the Court - Adoption of a new measure on the basis of earlier preparatory documents -Legality 6. Measures adopted by the Community institutions - Application ratione temporis - Period for compliance by the Member States with a directive expiring prior to its adoption - Retroactive effect - Permissibility in the light of the objective to be attained and in the absence of any infringement of the principle of the protection of legitimate expectations - Limits -Principle of non-retroactivity of penal provisions (Council Directive 88/146, Art. 10) 1. Having regard to the divergent appraisals by the national authorities of the Member States, reflected in the differences between existing national legislation, of the dangers which may result from the use of certain substances having a hormonal action, the Council, in deciding in the exercise of its discretionary power to adopt the solution of prohibiting them, neither infringed the principle of legal certainty nor frustrated the legitimate expectations of traders affected by that measure. 2. In accordance with the principle of proportionality, which is one of the general principles of Community law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question, it being understood that when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. However, with regard to judicial review of compliance with those conditions it must be borne in mind that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. 3. Although a harmonization measure which is intended to standardize previously disparate rules of the Member States inevitably produces different effects depending on the prior state of the various national laws, there cannot be said to be discrimination where it applies equally to all Member States. 4. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. That was not so in the case of Directive 88/146 prohibiting the use in livestock farming of certain substances having a hormonal action, which was adopted by the Council on the basis of Article 43 of the Treaty alone. By regulating conditions of the production and marketing of meat in order to improve its quality while curbing surplus production, that directive falls within the scope of the measures provided for by the common organization of the markets in meat and thus contributes to the attainment of the objectives set out in Article 39 of the Treaty. 5. The annulment by a judgment of the Court of a Council directive on account of a procedural defect concerning solely the manner in which it was finally adopted by the Council does not affect the preparatory acts of the other institutions. Therefore, these acts need not be repeated when the Council adopts a new directive replacing the one which has been annulled. Changes occurring in the interval in the composition of those institutions are of no effect since they do not affect the continuity of the institutions themselves. Whether or not a subsequent change in circumstances must be taken into consideration is for each institution to assess. 6. By fixing 1 January 1988 as the date of expiry of the period for implementation of Directive 88/146 prohibiting the use in livestock farming of substances having a hormonal action, Article 10 of the directive gives it retroactive effect in so far as the directive was adopted and notified in March 1988. Outside the criminal sphere, such retroactive effect is permissible, since, first, the directive replaced an earlier directive annulled because of a procedural defect, and the Council considered it necessary in order to avoid a temporary legal vacuum during the period between the annulment of one instrument and its replacement by a lawfully adopted text with regard to the existence of a basis in Community law for national provisions adopted by the Member States in order to comply with the directive which was annulled, and, secondly, there was no infringement of the legitimate expectations of the traders concerned, in light of the rapid succession of the two directives and the reason for which the first one was annulled. As regards the criminal sphere, on the other hand, Article 10 of the directive cannot be interpreted as requiring Member States to adopt measures which conflict with Community law, in particular with the principle that penal provisions may not have retroactive effect, which Community law incorporates, as a fundamental right, among its general principles. Nor may it provide a basis for criminal proceedings instituted under provisions of national law which may have been adopted in implementation of the annulled directive and whose sole basis is to be found therein. In relation to an alleged infringement of the principle of legal certainty: " . . . having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion."
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