Law Hospital NHS Trust v Lord Advocate [1996] ScotCS CSIH_2 (22 March 1996)

Law Hospital NHS Trust v Lord Advocate [1996] ScotCS CSIH_2 (22 March 1996)

It is competent for the Court of Session to exercise its parens patriae jurisdiction to authorise withdrawal of life-sustaining treatment from a patient in a persistent vegetative state, applying the best interests test. While declarator is inappropriate for future cases where parens patriae jurisdiction is available, it is competent in this case due to its special circumstances, but must be confined to civil law consequences. The court cannot pronounce on criminal law consequences, which remain within the jurisdiction of the criminal courts.

Citation
[1996] ScotCS CSIH_2
Parties
Pursuer: Law Hospital NHS Trust; Defender: Lord Advocate; Patient: Mrs Janet Johnstone
Jurisdiction
Scotland
Judgment Date
22 March 1996
Procedural Posture
Ordinary Action of Declarator / Inner House Appeal for Rulings After Proof Before Answer in Outer House
Outcome
Case remitted to Lord Ordinary with rulings; declarator competent in this case (civil law only); parens patriae jurisdiction available for authorisation of withdrawal of treatment.
Legal Topics
Withdrawal of Life Sustaining Treatment, Persistent Vegetative State, Parens Patriae Jurisdiction, Declarator, Medical Ethics, Competence of Remedies
Medical Law Civil Procedure Public Law Withdrawal of Life Sustaining Treatment Persistent Vegetative State Parens Patriae Jurisdiction Declarator Medical Ethics +1 more

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Parties

Law Hospital NHS Trust

Pursuer

Lord Advocate

Defender

Mrs Janet Johnstone

Patient

Procedural Posture

Ordinary Action of Declarator / Inner House Appeal for Rulings After Proof Before Answer in Outer House

Legal Issues

  1. 1 Is it competent for the Court of Session to authorise withdrawal of life-sustaining treatment from a patient in a persistent vegetative state?
  2. 2 Is an action of declarator an appropriate remedy, or should the parens patriae jurisdiction be invoked?
  3. 3 Can the Court of Session declare proposed conduct as lawful in both civil and criminal law?

Ratio Decidendi

It is competent for the Court of Session to exercise its parens patriae jurisdiction to authorise withdrawal of life-sustaining treatment from a patient in a persistent vegetative state, applying the best interests test. While declarator is inappropriate for future cases where parens patriae jurisdiction is available, it is competent in this case due to its special circumstances, but must be confined to civil law consequences. The court cannot pronounce on criminal law consequences, which remain within the jurisdiction of the criminal courts.

Court Disposition

Case remitted to Lord Ordinary with rulings; declarator competent in this case (civil law only); parens patriae jurisdiction available for authorisation of withdrawal of treatment.

Orders

  • Lord Ordinary authorised to exercise parens patriae jurisdiction and to grant declarator (civil law consequences only) in this case.
  • Declarator must be confined to civil law consequences; amendment required if necessary.