Mother to challenge ventilator decision Disabled girl's treatment may become
test case
Clare Dyer, legal correspondent
Saturday July 12, 2003
The Guardian
The mother of a disabled 10-year-old girl won the right yesterday to mount a
high court challenge to a hospital's alleged "unlawful refusal" to resuscitate
her daughter when she experienced severe breathing difficulties.
The case, in which the disability rights commission is expected to intervene
to make submissions, could become a test case for the rights of the disabled
to have the same life-preserving treatment as the able-bodied.
Mr Justice Newman said the case of N, who suffers from epilepsy, asthma and
developmental delay, raised fundamental questions over human rights and it was
in the public interest for a hearing to take place.
He gave the mother of N, from east London, permission to seek judicial review
of an alleged refusal at the Royal London hospital, Whitechapel, to
resuscitate N in October 2002 after a chest infection developed into pneumonia and she
suffered severe breathing difficulties.
In a statement before the court, the mother said she was told there would be
"no point" in putting her daughter on a ventilator because the same thing
would only happen again.
Meanwhile a "crash team" had resuscitated the child and put her on an adult
ventilator. It was eventually agreed that she should be allowed to remain on
the adult ventilator and the specialist would do her best to find somewhere that
would treat her.
"However, she said that she would make it clear that this should only be done
for 48 hours and then the ventilator would be turned off. If N was unable to
breathe without assistance at this point then no further assistance would be
given and I would have to say goodbye to N."
Eventually a place was found for N at Guys hospital, where she was ventilated
for two weeks, remaining in hospital for about three months.
George Hugh-Jones, for Barts and the London NHS trust, said the facts of the
case were in dispute. But if there had been a "do not resuscitate" decision,
the child had suffered no harm and the case should not proceed to a full
hearing because it was now "academic".
But the judge said, in the new era of human rights, "part of the integrity of
society" depended on the right to have a declaration by the court if one's
rights were infringed. "Wherever there is an infringement found to a right, harm
has been done," he added.
Richard Stein, of Leigh, Day & Co, solicitors for N and her mother, said:
"The judge recognised the very important principles in this case relating to
questions of whether or not disabled children should face treatment different from
that given to other children, purely because of their disability."
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