Court upholds mother's right to let child die Parent's right to refuse surgery for child upheld

His life will be short but happy, says judge

A mother's battle against an order to submit her seriously ill baby to a liver transplant won the backing of the Court of Appeal yesterday, in a test ruling over a parent's right to refuse surgery for a child.

Lady Justice Butler-Sloss, sitting with Lord Justices Waite and Roch, said the child's future treatment "should be left in the hands of his devoted parents" as they overruled a judge's order that the mother return from abroad with the 18-month-old toddler for the operation.

Although the case involved the special circumstances that the child was on the other side of the world, the chairman of the British Medical Association's medical ethics committee, Dr Stuart Horner, told BBC Radio Four's The World Tonight, that he was "perplexed" by the decision. "From a medical point of view I think the balance of advantage lay with the operation proceeding...After a few days of intensive care the child could have looked forward to a very bright future."

The dilemma arose after doctors diagnosed that the child, who was born with biliary atresia, a life-threatening liver disorder, would not otherwise live beyond the age of two and a half. But the parents, both health-care professionals, unmarried but in a stable relationship, believed their son would have months of pain after an operation which he might not survive and which would not necessarily prolong his life.

The mother's decision not to allow the operation was influenced by earlier unsuccessful treatment when the baby was a few weeks old which had caused him, the court said, "pain and distress". She later took him abroad against a doctor's advice.

A hospital factsheet had highlighted the complicated nature of the surgery, and that a family's decision not to go ahead would be "respected". But the child's consultant paediatrician warned the mother, who is 27, that legal advice would be sought if she did not consent. When a liver became available for transplant, doctors contacted the local authority which began proceedings under the Children Act. After a hearing where the mother gave evidence by video link, Mr Justice Connell ruled that the refusal of consent was "unreasonable" and that the mother must fly back to Britain for the operation.

What the court called a "desperately difficult" decision comes amid concerns by some lawyers and campaigners that the principle of consent is coming under increasing challenge by the medical profession.

But Lady Justice Butler-Sloss said that while there was a "very strong presumption" in favour of prolonging life, "the best interests of this child require that his future treatment should be left in the hands of his devoted parents."

Lord Justice Roch described the case as "desperately difficult", but said the views of the parents should be accorded weight and respect: "At present the evidence indicates that this child has a happy and secure life with his parents ... It is true that life will be a very short life which will end when the child is still a baby, but at a time before the child van become aware of the significance of his condition. I do not consider that it is in the child's best interests to disrupt his present life

Jocinta Peak, the mother's solicitor, said: "This is a very important decision. The Court of Appeal has emphasised that each case must be considered on its merits."

Lady Justice Butler-Sloss said the parents might want to reconsider now that the pressure of the court case was over, but that would be a matter for them. The court refused leave to challenge its ruling in the House of Lords and the Official Solicitor, appointed to represent the child, will now have to consider whether to petition the law lords for permission to appeal.