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  • Print publication year: 2005
  • Online publication date: August 2009

14 - Treating the preterm infant – the legal context

Summary

Introduction

The delivery of a preterm infant can produce some of the most difficult practical challenges in obstetric and paediatric practice, amply illustrated by other chapters in this book. However, these practical challenges must at the same time proceed with consideration for the perhaps even greater challenge of deciding whether what can be done, should be done. Ordinarily, as explained in the previous chapter, decisions about acceptable medical care are expected to be taken in partnership between patients and their healthcare team, with patients setting limits on the care that they would find acceptable and that which they do not feel would be appropriate for them. Where decisions must be made on behalf of others, in this case premature babies, deciding what interventions should be attempted and when treatment should be discontinued needs the utmost care and transparency, since we cannot appeal to respecting the autonomous wishes of the individual as the touchstone for commencing or ceasing treatment.

When making such decisions, there is an inevitable tension between the desire to do everything possible to save the life of a vulnerable new person and the equally strong desire to avoid causing pain and distress or allowing suffering to continue without prospect of improvement. The way in which these sometimes opposing convictions are resolved is through attempting to weigh up the relative burdens and benefits of treatment to the child and reaching a conclusion on what course of action will cause the child the greatest benefit or the least harm.

REFERENCES
Bartholomew, W. (1978) The child-patient: do parents have the “right to decide”? In Spicker, S. F., Healy, J. M. Jr and Engelhardt, T. Jr, eds., The Law-Medicine Relation: a philosophical exploration. Proceedings of the eighth trans-disciplinary symposium on philosophy and medicine held at Farington, Conneticut, 9–11 1978. Dordrecht: Reidel pp. 272–8.
British Medical Association. (1999) Withholding and Withdrawing Life-Prolonging Medical Treatment: Guidance for Decision Making. London: BMJ publishing.
British Medical Association(2000) The Impact of the Human Rights Act 1998 on Medical Decision Making. London: BMJ publishing.
British Medical Association(2001) Consent, Rights and Choices in Health Care for Children and Young People. London: BMJ publishing.
Cohen-Mansfield, J., Rabinovich, B. A., Lipson, S.et al. (1991) The decision to execute a durable power of attorney for health care and preferences regarding the utilization of life-sustaining treatments in nursing home residents. Arch. Int. Med. 151, 289–94.
Davies, M. (1996) Textbook on Medical Law, 2nd edn. London: Blackstone Press.
Davis, A. (1994) All babies should be kept alive as far as possible. In Gillon, R., ed., Principles of Health Care Ethics. London: John Wiley & Sons, pp. 629–
Department of Health. (2001a). Reference Guide to Consent for Examination or Treatment. London: Department of Health.
Department of Health(2001b). Seeking Consent: Working with Children. London: Department of Health.
General Medical Council. (2000). Priorities and Choices. London: General Medical Council.
General Medical Council(2002). Withholding and Withdrawing Life Prolonging Medical Treatment. London: General Medical Council.
Gunn, M. J. and Smith, J. C. (1985). Arthur's case and the right to life of a Down's Syndrome child. Crim. L. R. 705–15.
Harris, J. (1994) Not all babies should be kept alive as far as possible. In Gillon, R., ed., Principles of Health Care Ethics. London: John Wiley & Sons pp. 643–55.
House of Lords Select Committee on Medical Ethics (1993–94). Select Committee on Medical Ethics: Report Together with Oral and Written Evidence, Volume II – Oral Evidence. London: HMSO.
Kennedy, I. and Grubb, A. (2000) Medical Law, 3rd edn. London: Butterworths.
Kuhse, H. and Singer, P. (1985). Should the Baby Live? The Problem of Handicapped Infants. Aldershot: Oxford University Press.
McHaffie, H. E. (2001) Withdrawing treatment from infants: key elements in the support of families. Journal of Neonatal Nursing 7(3), 85–9.
McHaffie, H. E. in association with Fowlie, P. W., Hume, R., Laing, I. M., Lloyd, D. J. and Lyon, A. J. (2001) Crucial Decisions at the Beginning of Life: Parents' Experiences of Treatment Withdrawal from Infants. Oxford: Radcliffe Medical Press.
Mason, J. K. (1999) Medico-Legal Aspects of Parenthood and Reproduction, 2nd edn. Ashgate: Dartmouth.
Mason, J. K., McCall Smith, R. A. and Laurie, G. T. (2002) Law and Medical Ethics, 6th edn. London: Butterworths.
Royal College of Paediatrics and Child Health. (1997) Withholding or Withdrawing Life Saving Treatment in Children: a Framework for Practice. London: British Paediatric Association (Expected to be replaced by new guidance in the near future).
Royal College of Paediatrics and Child Health 1998 Guidelines for Good Practice: Management of Neonatal Respiratory Distress Syndrome. London: British Paediatric Association (Expected to be replaced by new guidance in the near future).
Royal College of Paediatrics and Child Health, Hodgkin, R. (2000). Advocating for Children. London: Royal College of Paediatrics and Child Health.
Williams, G. (1981) Down's Syndrome and the duty to preserve life. New Law J. 131, 1020.
Cases
A National Health Service Trust v. D and Ors (2000) 55 Butterworths Medico-Legal Reports 19
Airedale NHS Trust v. Bland (1993) 12 Butterworths Medico-Legal Reports 64, HL
Attorney-General's Reference (No.3 of 1994) [1997] 3 All England Law Reports 936
Bolam v. Friern Hospital Management Committee [1957] 2 All England Law Report, (1957) 1 Butterworths Medico-Legal Reports 1, [1957] 1 Weekly Law Reports 582
Bolitho v. City and Hackney Health Authority [1997] 4 All England Law Reports 771, (1997) 39 Butterworths Medico-Legal Reports 1, [1998] Appeal Cases 232, HL
Cruzan v. Director, Missouri Department of Health (1990) 497 United States Supreme Court 261
D v. UK [1997] 24 European Human Rights Reports 423, ECHR
Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 3 All England Law Reports 402, HL
Glass v. UK (2004) 39 European Human Rights Reports 15
Herczegfalvy v. Austria (1992) 15 European Human Rights Reports 437
Kelly v. Kelly [1997] 2 Family Law Reports 828, (1997) Scots Law Times 896 CS (IH).
NHS Trust A v. M, NHS Trust B v H [2001] 2 Weekly Law Reports 942, [2001] 1 All England Law Reports 801, (2001) 58 Butterworths Medico-Legal Reports
Paton v. British Pregnancy Advisory Service Trustees [1979] Queens Bench 276
Pearce v. United Bristol Healthcare NHS Trust (1998) 48 Butterworths Medico-Legal Reports 118, CA
R v. Adams (1957, unreported), discussed by Palmer, H. in [1957] Criminal Law Review 365.
R v. Adomako [1994] 3 All England Law Reports 79
R v. Arthur (1981) Butterworths Medico-Legal Reports 1
R v. Brain (1834) 6 Carrington and Payne 349
R v. Cambridge District Health Authority (1995) 23 Butterworths Medico-Legal Reports 1, CA
R v. Central Birmingham Health Authority, ex parte Walker (1987) 3 Butterworths Medico-Legal Reports 32
R v. Cox (1992) 12 Butterworths Medico-Legal Reports 38
R v. Enoch (1833) 5 Casrington & Payne 329
R v. Gibbins and Proctor (1918) 13 Criminal Appeal Reports 134, CCA
R v. GMC and others ex parte Burke (2004) 79 Butterworths Medico-Legal Reports 126.
R v. Handley (1874) 13 Cox Criminal Cases 79
R v. Woollin [1999] 1 Appeal Cases 82
Rance v. Mid-Downs Health Authority [1991] 1 All England Law Reports 801
Re A (children) (conjoined twins: surgical separation) [2001] 57 Butterworths Medico-Legal Reports 1, CA
Re B (a minor) (wardship: medical treatment) [1981] 1 Weekly Law Reports 1421
Re C (a minor) (wardship: medical treatment) [1989] 2 All England Law Reports 782, CA
Re C (a minor)(medical treatment) (1997) 40 Butterworths Medico-Legal Reports 31, [1998] 1 Family Law Reports 384
In re F (In utero) [1988] Family Division (Law Reports) 122
Re F (mental patient: sterilisation) [1990] 2 Appeal Cases 1
Re J (a minor) (wardship: medical treatment) [1990] 3 All England Law Reports 930, CA
Re J [1991] Family Division (Law Reports) 33 Re J [1992] 4 All England Law Reports 614
Re S (hospital patient: court's jurisdiction) [1996] Family Reports 1
Re T (a minor) (wardship: medical treatment) [1997] 1 Weekly Law Reports 242
Re W (a minor) (medical treatment) [1992] 4 All England Law Reports 627
W v. UK (1987) 10 European Human Rights Reports 29