Pater Knows Best: Withdrawal of Medical Treatment from Infants in Scotland

Abstract The cases of Charlie Gard and Alfie Evans placed the withdrawal of treatment from terminally ill infants at the forefront of medical law and ethics. In the medico-legal context, Scottish court procedures materially differ from those in England. This article considers these differences in light of the possibility that a similar case might soon be called before the Scottish courts. The Court of Session would then be required to consider whether to utilise its parens patriae jurisdiction to consent to the withdrawal of treatment as if it were the parent of the infant. The operation of this jurisdiction is such that the outcome of any Scottish case cannot be said to be certain, as the Scottish courts are bound to pay more heed to parental autonomy than their English counterparts do.


Introduction
The cases of Charlie Gard 1 and Alfie Evans 2 placed the question of withdrawing treatment from terminally ill infants at the forefront of medical law and ethics. 3 Though the law might have been 'compassionately and correctly applied' in these cases, 4 this ostensible clarity did not prevent protracted litigation, 5 nor an outpouring of strong public feeling. 6 Both cases commanded no more than hair-splitting, 18 but in theoretical terms the gulf between Scots and English law is vast. 19 The greatest consequence of Scotland's continued recognition of the parens patriae jurisdiction is that, while in England and Wales the courts 'can only issue a declarator as to the legality of a proposed course of conduct', 20 in Scotland the Court of Session can refuse treatment 'on behalf of the incapax'. 21 Ultimate parental authority, therefore, is vested not in the parents, but rather in the judiciary. 22 As 'the contentious aspect of the case[s of Gard and Evans] is the issue surrounding parental autonomy', 23 it follows that the Scottish courts are placed in an awkward position. While the courts in England and Wales may legitimately say that they do no more than declare the conduct of the clinicians lawful in cases concerning the withdrawal of medical treatment, to achieve the same ends in such cases the Scottish courts must go further and expressly rule that the views of any child's parents are subordinate to those of the court. This paper does not propose to determine whether this is ethically justifiable; rather, it asks whether, due to the differences in the law, and conscious of considerations of public policy and public perceptions concerning the importance of parental authority and autonomy, the Court of Session might decide a case such as Gard or Evans differently.

A. The Factual Background
Charlie Gard had been diagnosed with a rare disease 24 which had rendered him severely disabled. His prognosis was described as dire and against this backdrop, his parents accepted that his life at present was not worth sustaining unless there was some available treatment. Contrary to medical advice, they wished to take him abroad for entirely experimental and untested therapy, which even the consultant in question viewed as extremely unlikely to trigger any improvement, and as only holding out a theoretical possibility of working. 18 As Laurie observed in his 1999 article (n 11), while Scots law would appear to formally require the court to be called upon in each and every case to consent (or refuse) on behalf of each and every incapax, this does not happen in practice; in the 10th edition of Mason and McCall Smith's Law and Medical Ethics (published in 2016), Laurie and his co-editors note that the consequences of Law Hospital were such that 'decisions could be made on medical grounds and independently of the courts': see Laurie, Harmon and Porter (n 9) para 15.125. 19 Indeed, it has been observed that one cannot simply 'assume that the conception of best interests offered by the English courts is suitable in a legal system such as that of Scotland which purports to exercise the parens patriae jurisdiction' (Laurie (n 11) 104), however much commonality may be assumed in practice. 20 Laurie (n 11) 101. 21 Laurie (n 11) 101. 22 In an (admittedly) English case (though the principle is, it is submitted, identical in Scotland now as it was in England then), Lord Esher MR described parens patriae jurisdiction as 'a paternal jurisdiction' which allows the court to 'supersed[e] the natural guardianship of the parent': see R v Gyngall [1893] 2 QB 232, 239. 23 Gillett (n 6); Gillet is speaking only of the case of Gard, but it is submitted that his statement may be read as equally applicable to Alfie Evan's situation. 24 Infantile onset encephalomyopathic mitochondrial DNA depletion syndrome, or MDDS.

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Oxford Journal of Legal Studies VOL. 40 Alfie Evans was diagnosed with a progressive neurological condition and a similar prognosis to Charlie. His doctors had determined that there was no longer any viable treatment to improve his condition or halt his decline, and sought a declarator from the court that it was no longer lawful to continue ventilation, as it was not in his best interests. His parents wanted to take him abroad, to be able to continue life support for longer, followed ultimately by taking him home to die within their own timeframe. Francis J heard the case of Great Ormond Street Hospital v Yates and others, 25 and set out a clear statement about the court's involvement in such cases: Some people might ask why the court becomes involved at all, why should the parents not be the ones to decide? A child's parents having parental responsibility have the power to give consent for their child to undergo treatment, but overriding control is vested in the court exercising its independent and objective judgment in the child's best interests. 26 In asserting that 'best interests' is the only test to be applied here, the judge used well-established case law 27 to reinforce the need for the court to make an objective assessment of what is in the child's best interests, balancing the competing factors and using a 'balance sheet approach' where appropriate. 28 He also highlighted the dicta on best interests in Aintree University Hospital NHS Foundation Trust v James, 29 on withholding or withdrawing treatment from an incompetent adult patient. There it was emphasised that, under section 1(5) of the Mental Capacity Act 2005, the assessment of best interests is based on whether it is in the patient's best interests to be given the treatment, not whether it is in their best interests for it to be withdrawn. This relies on the nature of consent in these cases. The court consents on behalf of the incompetent patient, and if the treatment is not in that patient's best interests, there can be no question of the court consenting to that treatment. Thus, continuing that treatment becomes unlawful, 30 as there is no basis on which the court can rest its consent. It should be noted here that the language used bears out the reality of the position of the English courts; that they are declaring the doctors' proposed course of action to be lawful, rather than imposing their own decision as to treatment.
Charlie's parents, however, appealed 31 on the grounds that the judge had failed to appropriately balance the benefits and burdens, and also that, where parents proposed alternative viable treatment, the court could only overrule if 25 Above n 1. 26 Great Ormond Street Hospital (n 1) para 36. As is demonstrated later, overriding control is not vested in the Scottish courts in the same manner as in the English courts. 27  it would be likely to cause significant harm to the child, and that the usual best interests test did not apply in this context. However, not all cases involve factors which can be so balanced; 32 since there was no longer any treatment which could offer any benefit, there was simply nothing which required to be balanced against the burdens of continued treatment. The case of Alfie Evans and his parents' determined attempts to secure continued treatment has a lengthy judicial history. The case came to court following irreconcilable differences between the hospital (proposing withdrawal of futile treatment and provision of palliative care only) and his parents (proposing relocation to another facility and continued treatment). Hayden J, in the High Court, 33 relied on a legal framework for decision making which he described as both easy to state and hard to apply: in making these decisions, the best interests of the child are 'the lode star which guides the Court's approach'. 34 He concluded that 'the continued provision of ventilation, in circumstances which I am persuaded is futile, now compromises Alfie's future dignity and fails to respect his autonomy. I am satisfied that continued ventilatory support is no longer in Alfie's best interests.' 35 Since it was no longer lawful for it to be continued, it would be both lawful and in his best interests for him to be extubated and given palliative care. Subsequent hearings drew no more favourable conclusions in the Court of Appeal, the Supreme Court or the European Court of Human Rights. 36 The case returned to the High Court, but only to determine an appropriate end of life plan, which Hayden J endorsed. At the same time, he also dismissed a habeus corpus application, and a subsequent further appeal to the Supreme Court and application to the European Court of Human Rights were rejected, as were subsequent separate applications for leave to appeal by both parents. 37 B. 'Significant Harm' and the Relevance of Parental Autonomy An argument based on significant harm was raised de novo on appeal in Gard. 38 It relied on the concept of parental autonomy and the right of parents to make treatment decisions for their child. It was argued that if parents proposed a viable alternative treatment, then it must be preferred unless it was likely to cause significant harm to the child. This significant harm test comes from In Re King, 39 where the parents put forward a different type of radiotherapy treatment from that proposed by the hospital. They removed their child from the hospital and headed to Spain, where they were arrested and the child 32 ibid 10. 33 Alder Hey (n 2). 34 Alder Hey (n 2) para 47. 35

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Oxford Journal of Legal Studies VOL. 40 was returned to the UK and made a ward of court. Baker J held that parents have responsibility for deciding on treatment for their children without interference, unless the child is suffering or is likely to suffer as a result of receiving care which no reasonable parent would give their child. This test is in line with the Children Act 1989, section 31, which applies 'significant harm' as the threshold for placing a child in local authority care.
In rejecting this argument in Charlie's case, it was held that 'the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view'. 40 The court made it clear that In Re King was a very different case, where the parents were proposing other treatment which was on a roughly equal footing with that proposed by the doctors. In such cases, the court could properly allow parental autonomy to take precedence. However, Charlie's parents were not proposing a course of treatment which could amount to a viable alternative, and thus there was no basis for invoking King, or for supplanting the best interests test. 41 The decision that nucleoside therapy was unlawful 'result[ed] from a 100%, child focused, court-led evaluation where the one issue was whether or not the therapy was in the child's best interests'. 42 Alfie's parents, like Charlie's, also attempted to raise an argument based on the significant harm test. Their position was that the 'best interests' of Alfie was not the determining test but that the proper determination was whether their plans to continue treatment elsewhere would be likely to cause him significant harm. This issue had not been raised before Hayden J and relied on an analogy between Alfie's situation and section 31 of the Children Act 1989, which applies a significant harm test in care proceedings as a barrier to overhasty removal of a child from its parents. Significant harm operates as a threshold to justify state interference in what is properly the family domain, but this only applies in care and removal cases, which are of a quite different species. In proceedings related to the withdrawal of treatment from a child, it was found that the 'best interests test' (described as the 'gold-standard test')must be applied. 43 The argument for using significant harm as the appropriate threshold here is put forward at least in part because it is felt that it takes due account of the realm of privacy which exists within the family context, and the extent to which parents are the best arbiters of the wider aspects of decision making for children. This encompasses more than the instant decision; it also includes a breadth of other value decisions which reflect that particular family and its beliefs and values. 44 This is further reinforced for proponents of the significant harm test by the extent to which allowing this greater degree of parental autonomy operates to encourage and entrench the pluralism which exists within our society, and gives effect to the liberal values of freedom of expression, religion and the right to privacy itself. These freedoms and rights are best upheld, it is argued in this context, by leaving decision making within the sphere of the family, and in the hands of those with parental authority over the child. 45 Auckland and Goold cite Goldstein 46 here, asserting that, in situations where reasonable individuals can and do disagree, the existence of that reasonable disagreement between them means there is no objectively right or wrong approach. The assertion is, again, that parents are the best decision makers in these situations, unless their decision would raise a serious risk of significant harm.
Auckland and Goold apply this to Gard, which they classify as a case about balancing the potential harm of undergoing the parents' desired experimental treatment, against the possible benefits Charlie might gain, and that since decisions about what is best for the child often revolve around values, parents (who are said to be best placed to decide which values are of most significance to them as a family unit) are the appropriate decision makers. In adopting this position, the authors also assert that such an approach affords us the means to both recognise and protect differences in views and values, which should be tolerated. 47 However, the countervailing view, and the view expressed by the court in Gard in adhering to the best interests test, is that Charlie's situation is precisely not one in which harm and benefit can be balanced.
In rejecting this 'balancing' approach, the court made it clear that they could not balance the potential benefits of the experimental treatment against the potential burdens, because the experimental treatment was incapable of achieving any improvement in Charlie's condition, and therefore all that remained was the burden imposed on him by continued life support. This conclusion then justified the court in taking decisional authority away from the parents and using the best interests test to set out what the court determined to be the appropriate course of action. Auckland and Goold also raise cases of factual disputes between parents and doctors as a situation where the significant harm test should be employed in place of the best interests test, unless and until the parents' decisions risk significant harm to the child. 48  take for their children, but that in most cases these are not sufficiently serious to justify overriding the privacy otherwise afforded to the family. While this argument may hold for many situations, and may also hold for situations involving disputes as to which of two broadly equal treatments should be undertaken, it cannot hold for cases such as Gard, where the errors of fact disputed before the High Court related to the parents' belief in the potential efficacy of an experimental treatment which was unsupported by the scientific evidence. Their error here would not be something which would have minimal impact on their child's life, as continuing life support in order to move Charlie so he could begin the experimental treatment would have harmed him as it would have amounted to futile treatment, with unknown risks and side effects, which had no prospect of offering any benefit.
Gollop and Pope put forward some contrary views, to counter suggestions that the significant harm test would provide a better outcome in these cases. 49 Referencing R (A Child), 50 which involved the local authority using care proceedings and the significant harm test as it appears in section 31 of the Children Act 1989, they highlight the potential 'chilling effect' of the significant harm test. In R, the child's mother had ultimately refused consent for antibiotics to be administered, which precipitated the care proceedings. In setting out their case under section 31, the local authority had pulled together every instance of disagreement between her and the doctors, and every refusal she had made up to that point, to strengthen their case. Gollop and Pope contend that this poses real risks for parents, were the significant harm test to be adopted into medical decision-making cases, as it might well leave parents feeling they cannot stand up for what they believe to be in the best interests of their child, for fear that each time they do so, it would be reported to the local authority under the guise of safeguarding the child, and that parents would therefore effectively build a case against themselves as having caused significant harm.
Within the relevant English and Welsh legislation, conceptions of parenthood are founded on the parents' normal rights (and duties) to care for and decide for their children, to protect their welfare and interests, and involve a blend of rights over, balanced by responsibilities for, the child. 51 In the face of any challenge to this parental authority, whether that comes from doctors holding contrary views as to treatment (and, by implication, what treatment is or is not harmful 52 ) or the court stepping in to determine the child's best 49 Katie Gollop and Sarah Pope, 'Charlie Gard, Alfie Evans and R (A Child): Why a Medical Treatment Significant Harm Test Would Hinder not Help' <http://www.transparencyproject.org.uk/charlie-gard-alfie-evansand-r-a-child-why-a-medical-treatment-significant-harm-test-would-hinder-not-help/> 50  interests, it is understandable that this affront to parental control could become a battleground, but it is important here to remember that none of the arguments put forward in favour of the best interests approach above, and in both Gard and Evans, involve the complete elision of parental views. Those views are important for many reasons, not least some of those highlighted by Auckland and Goold in favour of the significant harm test (the wider familial context, beliefs and values), but the 'gold standard' of the best interests test demands a child-centric approach, which has to mean that parental views become part of the overall picture, rather than determinative of the decision to be made. Recognition of the fact that parents will not find this an easy position to accept is implicit in Francis J's judgment in Gard, where he concludes with a plea for some form of mediation to attempt to avoid adversarial proceedings. 53 The debate concerning 'significant harm', in this context, affords little guidance to Scots lawyers. The direction in which English law has developed is not mirrored in Scotland, despite the view that medical law permeates the jurisdictional border intact. The legislative basis for the 'significant harm' test, section 31 of the Children Act 1989, does not apply in Scotland and it cannot be presumed that, in the absence of comparable legislation, the Scottish courts would develop Scots law in lockstep with England. 54 Nevertheless, the concept of 'best interests' does indeed operate in Scots law in like manner to English, as indicated by the case of Finlayson, Applicant. 55 In this case, the parents of a nine-year-old haemophiliac child had refused consent to the standard treatment for that disease. The court overruled the decision of the parents on the grounds that this refusal of treatment was not in the 'best interests' of the child; such a refusal of treatment was deemed likely to cause unnecessary suffering and/or seriously impair the child's health or development.
The context of Findlayson is quite different to that of Gard and Evans, however. Primarily, this case was concerned with aspects of social work and care proceedings under a Children's Hearing-the adjectival law governing which is quite distinct from the laws of procedure that would govern any case concerning the withdrawal of medical treatment from a patient in Scotland. 56 Although the case invoked the 'best interests' test, ultimately the judgment contains no further discussion of parental autonomy or the right of the court to intervene. The importance of the concept of 'parental autonomy' in cases involving children cannot be overstated; as discussed below, in most Western jurisdictions, 57 the law takes the principle of 'patient autonomy' as a principal 53 Great Ormond Street Hospital (n 1) para 130. 54 See Children Act 1989, s 108 (11). 55 1989 SCLR 601. 56 For one thing, the case was decided by a sheriff (who lacks parens patriae jurisdiction) rather than a senator of the College of Justice sitting in the Court of Session; any case concerning the withdrawal of medical treatment would be heard by the latter, rather than the former. 57 See n 58 below.

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Oxford Journal of Legal Studies VOL. 40 starting point in medico-legal matters and, where the patient themself lacks capacity to make decisions, the law must make provision to determine who (or which body) ought to be empowered to make decisions on behalf of the incapax. As will be seen in what follows, the decision of the court under parens patriae in Scotland would involve taking a significantly different approach to the relative standing of clinicians and parents.

C. Decision Making: The Principle of Autonomy v Best Interests
Cases such as Gard and Evans show how theoretical niceties can become infinitely more difficult in practice, particularly in cases involving heightened emotions. However, those theoretical niceties require some discussion in the context of understanding the court's role and approach to decision making. Decision making falls into two broad camps: one based on the exercise of autonomy by a competent adult and one based on the application of the best interests test for those who are, or have always been, incompetent. Both have generated significant case law and resulted in the spillage of a good deal of academic ink. And yet, human experience, and the frontiers of medical innovation, continue to generate novel issues to trouble courts and commentators.
Determining an appropriate course of action in the case of a terminally ill infant, whose parents and doctors fundamentally disagree, will present such an issue for the Scottish courts when it (inevitably) arises this side of the border. A fundamental aspect of medical law revolves around the definitions of both the process of decision making and the identity of the decision maker. Recognising the value of the concept of 'autonomy', in common law and civilian jurisdictions alike, competent adults are recognised as holding the right to be the sole arbiter of treatment decisions. 58 'Autonomy' finds its first expression (as autos nomos, or self-rule) as a political concept applied to the independent city states within Ancient Greece, 59 and has a significant role in, among others, Kantian conceptions of free will and moral agency, 60 but this lies outside our present scope. In bioethics, autonomy has often been viewed as sitting at the apex of four principles in Beauchamp and Childress's concept of principlism. 61 While it is often viewed as primus inter pares, 62 the authors were clear that no single principle overrides the others. 63 That caveat aside, it 58 The principle of autonomy can be seen to be woven through the fabric of the law in many Western jurisdictions and it has a significance far beyond that noted in the commonly cited Anglo-American cases. In Spain, for instance, the courts have recognised that a non-pecuniary (yet nevertheless compensable) harm is inflicted where a doctor proceeds without obtaining the 'informed consent' of their patient: is clear that autonomy has developed a strong position in modern healthcare and ethics, and has driven a discourse with the individual/patient as decision maker. Autonomy is therefore often defined as the ability to exercise free choice over the course of one's decisions and one's body. This requires that the individual has the capacity to make meaningful choices, and is free from external influences which impact that choice. To be autonomous, actions must be voluntary. This involves a level of freedom from influence which withstands the pressures that others might bring to bear on the individual. Beauchamp and Childress offer a three-condition approach to autonomy which requires that the individual is capable of an intentional act, has a substantial degree of understanding (because requiring perfect understanding would rob most of us of autonomy most of the time), and a lack of external influences or internal mental conditions which would otherwise limit that voluntary choice. 64 Thus, the ability to be self-determining feeds directly into legal conceptions of capacity.
In England and Wales, the Mental Capacity Act 2005 defines incapacity as the inability to make a decision because of mental impairment or dysfunction, and, further, as a state in which the individual cannot understand, retain, use or weigh information in order to come to a decision, or as an inability to communicate that decision. 65 The Adults with Incapacity (Scotland) Act 2000 defines incapacity as an inability to act, or make, communicate, understand or retain a memory of a decision. 66 The principle of autonomy in its guise as a right to self-determination also infiltrates established human rights, and statements are made within Strasbourg jurisprudence in the context of the interpretation of the right to respect for one ' It should not be forgotten that every patient has a right to bodily integrity. This encompasses the right to determine what medical procedures will be accepted and the extent to which they will be accepted. Everyone has the right to decide what is to be done to one's own body. This includes the right to be free from medical treatment to which the individual does not consent. 70 In England, the importance of capacity finds expression in Re T (adult: refusal of medical treatment), 71 where the hospital was granted an order to give a blood transfusion to a patient who had refused such treatment in writing, prior to deteriorating to the point where emergency intervention was necessary. The court found that she had refused treatment under the influence of her mother. It was therefore able to find that her refusal of treatment was not a genuine exercise of her autonomy, and that her medical condition rendered her incapable of making a valid refusal of life-saving treatment.  73 He went on to state that 'Prima facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death'. 74 This reasoning was echoed in Ms B v An NHS Hospital Trust, 75 which involved a request from a patient, who had the requisite 'capacity', to withdraw ventilation, even though such would almost certainly lead to her death. Lady Butler-Sloss affirmed that 'Unless the gravity of the illness has affected the patient's capacity, a seriously disabled patient has the same rights as the fit person to respect for personal autonomy'. 76 Lord Goff stated, in relation to a competent adult's refusal of treatment, that the doctors must follow the individual's wishes, no matter how unreasonable the refusal.
To this extent, the principle of the sanctity of human life must yield to the principle of self-determination and, for present purposes perhaps more important, the doctor's duty to act in the best interests of his patient must likewise be qualified. 77 69  Thus, medical practitioners are obliged to respect any decision to refuse treatment made by competent patients, even where that decision seems unusual, if not downright bizarre, to others, 78 and even if it will precipitate their death.
While the principle of autonomy may justify the legal position as expressed in Ms B, it provides little guidance in cases concerning decision making for individuals who lack capacity. Infant children clearly lack decision-making capacity 79 and so, in such cases, the assumption is that the parents (biological or legal) will share a decision-making role with the child's clinical team and jointly make decisions with that team on the basis of the 'best interests' of the child. 80 This forms a necessary exception to the modern pendulum swing towards individual patient autonomy and leaves decision making for children and others who lack capacity firmly within traditional paternalism. The basis for subsequent court intervention in such cases arises solely where clinicians and parents cannot agree on a course of action. Given the nature of these cases and the reasonably urgent time frame involved, there is generally a pressing need for 'a' decision to be made.
Lord Donaldson's decisions resonate through the English case law of the 1990s. In Re C (a minor) (withdrawal: medical treatment), 81 the court, concurring with his judgment, allowed the hospital to withdraw treatment, based explicitly on considerations of that child's welfare, well-being and best interests. Little over a year later, in Re J (A Minor) (Wardship: Medical Treatment), 82 Lord Donaldson noted that 'there will be cases in which . . . it is not in the best interests of the child to subject it to treatment which will cause it increased suffering and produce no commensurable benefit'. 83 His Lordship went on to set out several key points for consideration in cases of this kind: that there was a presumption in favour of life, but that it must be considered from the assumed position of the patient; that decision making is a cooperative effort between doctors and parents (or courts, in cases of wardship), where all decisions must be made in the 'best interests' of the child; and that no decision taken on the basis of 'best interests' should be considered as one designed to bring about death, other than as a side effect.
The English courts have deliberately left the definition of 'best interests' unclear. 84 Although it has been emphasised that no attempt should be made to 78  lay out specific criteria for the determination of 'best interests', it has been recognised that the determination of 'best interests' must be judged from the assumed perspective of that child (or other incapax person), with a strong but rebuttable presumption in favour of life. In making any decision to withdraw or continue treatment of children, the courts have emphasised that the welfare of the child is key. The pattern developed by the courts in cases of this kind is brought out in An NHS Trust v MB. 85 There is no role in such cases for either substituted judgment or assessments of what the reasonable doctor or parent would do. 86 All cases stand on their own facts. The views of doctors and parents must be carefully considered, but are not relevant to the test, centred as it is on the patient's 'best interests'. What constitutes the child's 'best interests' is determined by the court, using its own objective judgment, with 'best interests' being understood in its widest sense, including medical, emotional, sensory and instinctive 87 considerations. The court in MB recognised that taking a 'balance sheet approach' can help; this involves looking explicitly at the relative benefits and burdens of the treatment, while simultaneously acknowledging that there can be no computational basis for assessing their relative weights. 88 The importance of finding the balance between benefits and burdens is well illustrated by An NHS Trust v A and B and another, 89 involving a dispute between doctors and parents over the continued treatment of a severely braindamaged infant, for whom there was no possible treatment and for whom death was inevitable. The Trust had made an application to the court for a declaration that it would be lawful and in his best interests for him not to be ventilated and resuscitated, and for his treatment to be limited to palliative care. His parents wanted further trials of drugs to combat his seizures, along with continued ventilation and CPR. The medical evidence was clear that there was no possible benefit from any further drug treatment, and that reventilating and resuscitating him caused pain and distress. Relying on Re T (Wardship: Medical Treatment), 90 Russell J determined that it was within the power of the English courts to overrule the parents in accordance with the guidelines set out in Portsmouth NHS Trust v Wyatt, 91 which focus on an objective assessment of best interests, balancing welfare in the widest sense with the presumption in favour of life, looking from the assumed position of the 85 MB (n 27) para 16. 86 This common law position stands in contrast to the position under Scots law, which-due to the operation of parens patriae and in line with the explanation of that jurisdiction discussed in Gyngall (n 22)-must explicitly substitute its judgement for those of the doctors or parents should a dispute ultimately lead to a petition to the jurisdiction of the Inner House. 87  patient. In balancing the burdens of his untreatable seizures, and the pain and distress involved in his ultimately futile current treatment, against the minimal level of comfort he appeared to derive from contact with his parents, Russell J concluded that it was in the child's best interests, and lawful, for the treatment to be withdrawn, and for his life to come to as comfortable an end as possible.
It should be noted that there is an evident reluctance by the courts to rule against the decision of a doctor, if to do so would require them to treat their patient contrary to their clinical judgment, as can be seen from Re J (a minor) (child in care: medical treatment). 92 The net effect of this judgment must be that, while the explicit position is that the court decides, there are few instances where the doctor's decisions are not, in reality, determinative. A reluctance to decide a case so as to force a doctor to treat against his clinical judgment must surely mean that medical considerations carry greater weight. If, for example, medical considerations determined that treatment was not in the child's best interests, but non-medical factors on the balance sheet indicated that continued treatment would be in the child's best interests, the authority of Re J would demand that the balance be reversed in favour of the doctor's assessment, because to do otherwise would require the courts to force the doctor to treat the child against his clinical judgment. In Scotland, however, these matters are dealt with by parental fiat. The doctor's role is to persuade the parents of the efficacy of his proposed course of action. The 'parents' may be the biological or legal parents, failing whom the court, acting as parens patriae.
Due to these differences in procedural law, the hands of the Scottish courts are more constrained than those of the English courts. In Scotland, it might not be possible for the Court of Session to give effect to the will of the doctors because the court must do more than simply declare their proposed course of conduct lawful. As is elucidated below, since the court must act as though it were the patient or the parent of the patient, the Scottish courts are obliged to give due consideration to the subjective will of the patient (if such can be determined): thus, it might be concluded that Scots law gives more weight in these circumstances to parental autonomy than would be the case south of the border. Oxford Journal of Legal Studies VOL. 40 law that governs the English High Court. 93 Indeed, the substantive law of Scotland, and the rationale underpinning it, also differs from the positions expressed by Francis J and Hayden J in Gard and Evans. It is not competent for a physician to seek a declarator from the Outer House of the Court of Session that their proposed course of conduct is lawful. Rather, the physician must directly petition the Inner House of the Court of Session to use its inherent parens patriae jurisdiction and consent on behalf of the patient, as if the court itself were the parent. 94 This parens patriae jurisdiction might apply in cases concerning incompetent adults or infants 95 and has a long history, but has not received much consideration in Scottish legal literature. 96 Historically, the Kings of both Scotland and England held parens patriae jurisdiction over their subjects. 97 The emergence of the parens patriae jurisdiction in Scots law has not been studied in any great detail, 98 but it is clear that by the 16th century the Scottish monarch was expressly given the care of the helpless 'when agnates [ie male lineal blood relatives] fail'. 99 This exercise of parens patriae practically occurred in the appointment of tutors dative, on the authority of the King, through the King's Court of Exchequer. 100 Though the Court of Session could also, by the 18th century, concurrently appoint tutors by exercising its nobile officium 101 (that is, the 'extraordinary equitable jurisdiction of that court' 102 ), as a strict matter of law, 103 appointments of tutors dative were still said to be passed 'by the King alone, as pater patriae'. 104 By the mid-19th century, 'the whole power, authority, and jurisdiction' of the Court of Exchequer in Scotland was transferred to the Court of Session. 105 Since it was already possible for the Court of Session to appoint tutors dative by exercise of the nobile officium even prior to this, it has subsequently been posited that the parens patriae power of this court is now little more than an applied exercise of the nobile officium. 106 In his monograph on the nobile officium, however, Thomson notes that, although this position generally suffices in matters of practice, 107 it remains conceptually clear that parens patriae is of a far narrower remit than the more general equitable jurisdiction of the Court of Session. 108 The conflation of parens patriae and nobile officium is, however, understandable, due to the judgment in Stuart v Moore. 109 In this case, the Lord Chancellor suggested that the Court of Session's nobile officium jurisdiction was conferred upon it by the Sovereign, who stood as parens patriae, 110 and this jurisdiction gave the court a 'duty to take care of all infants who require their protection, whether domiciled in Scotland or not', emphasising that 'the benefit of the infant is the foundation of the jurisdiction, and the test of its proper exercise'. 111 Such does not appear to accurately reflect the nature of the nobile officium, 112 which, as argued before the Inner House the previous year, was invoked in Stuart in a peculiar sense, as a 'jurisdiction that might be exercised to aid in giving effect to the orders of a foreign Court', 113 being that the Court of Chancery was and is foreign to Scotland. 114 Indeed, it appears (as indicated in the English, but not the Scottish, case report) that the Lord Chancellor's judgment was not properly concerned with the nature of the parens patriae jurisdiction of the Court of Session at all, but rather with the more general point that both the Supreme Courts of Scotland and the English Court of Chancery, 'representing the Sovereign as the parens patriae, were bound to assist each other in doing what was necessary to ensure the benefit of the infant [in Stuart]'. 115 The Lord Chancellor appears to have been expressing two distinct points: that the authority of the court descends ultimately from the Sovereign, and a more specific statement about the application of the nobile officium to the case at hand.

The Scottish Legal Position
In the same case, Lord Cranworth more clearly explains the nature of the parens patriae jurisdiction within Scotland. 116 Though he noted that this jurisdiction might sometimes correlate with the nobile officium, as it did in Stuart, 117 it was said that 'the Crown [is] parens patriae, and protector, therefore, of infants who have had the misfortune to lose their parents'. 118 Since the Court of Session was recognised as possessing a nobile officium (ie equitable) jurisdiction which 'corresponds very much to that which exists in the Lord Chancellor in this country [ie in England]', 119 it was possible for the Scottish court to uphold the judgment of the English court by utilising its nobile officium and-in the circumstances of the case, given that the benefit of the infant was paramount 120 and that the House of Lords had ruled that it would be in the interests of the child for the English judgment to be executed 121 -the Supreme Courts of Scotland were obliged to make use of this mechanism. 122 Thus, Stuart recognised that the nobile officium was merely, as an equitable mechanism, one possible means of fulfilling the court's duty to exercise parens patriae jurisdiction; parens patriae and nobile officium cannot be said to be, therefore, one and the same.
Accordingly, it appears clear that the Court of Session presently has parens patriae jurisdiction not as a part of its nobile officium, but rather due to its inheritance of the 'whole power, authority and jurisdiction'-including parens patriae-of the Court of Exchequer in Scotland. 123 Thus, nobile officium follows from the court's authority to enact the decisions of the parens patriae, not vice versa. Though the power of parens patriae over adults was withdrawn in England and Wales by the Mental Health Act 1959, the relevant provisions of this Act did not extend to Scotland. 124 The Mental Health (Scotland) Act 1960 fulfilled much the same role in Scots law, 'sweeping away', as stated in Re: F, 125 all previous 'lunacy' legislation. The Scottish Act, however, did not alter the inherent powers of the Court of Session. 126 Thus, the Scottish courts' exercise of parens patriae jurisdiction was not affected by the 1960 Act and so parens patriae remains of relevance to Scots lawyers today in cases of adult persons of unsound mind, as well as in cases of tutory. 127 The continuing relevance of parens patriae was affirmed in 1996, in Law Hospital NHS Trust v Lord Advocate, 128 where the Court of Session ruled that the jurisdiction extended to incapable adults, as well as those patients who are in a persistently vegetative state (PVS). 129 This decision, in line with the English decision of Airdale NHS Trust v Bland, 130 held that the withdrawal of artificial hydration, nutrition or non-palliative treatment may be in the 'best interests' of a PVS patient. 131 In recognition of this, the court utilised its parens patriae jurisdiction to authorise the withdrawal of treatment and, in doing so, noted that, functionally, 'authorisation in the exercise of [parens patriae] jurisdiction [has] the same effect in law as if consent had been given by the patient'. 132 The court in Law Hospital noted that they 'were not referred to any Scottish case in which the parens patriae jurisdiction [had] been exercised in this way [ie as a means of authorising the withdrawal of medical treatment]'. 133 Similarly, there was 'almost no guidance in the Scottish authorities, such as they are, relating to the exercise of parens patriae jurisdiction with regard to the test to be applied in deciding whether or not a course of conduct should be authorised'. 134 Nevertheless, the Inner House determined that the parens patriae jurisdiction could be utilised as requested by the pursuers 135 and that the test to be applied was, as elsewhere, 136 that of 'best interests'. 137 The language of 'best interests' echoes the opinion in Stuart v Moore that the parens patriae jurisdiction of the Court of Session behoves judges to do what is 'necessary to ensure the benefit of the infant', that being 'the foundation of the jurisdiction'. The idea of the 'benefit of the [incapax]' thus correlates with the concept of 'best interests' as it operates within Common law jurisdictions; indeed, the corpus of authority concerning such was drawn upon by the Inner House in Law Hospital. Accordingly, the decision of the court in Law Hospital merits deeper consideration.

B. Law Hospital NHS Trust v Lord Advocate
The facts of Law Hospital, at first sight, do not concern withdrawing treatment from a terminally ill infant, although the case nevertheless represents the last word, in Scotland, on the subject of withdrawal of medical treatment from incapable patients. In Law Hospital, it was held that a declarator that the conduct of the physicians would be deemed lawful was thought to be appropriate in the case; 138 however, the court stressed that subsequent complex cases should proceed by petition to the parens patriae jurisdiction of the Inner House, and that declarators in such cases would be inappropriate. 139 There have been no such reported petitions to this court since Law Hospital in 1996, however.
At the time that the Law Hospital case went to court, the patient had been in a persistent vegetative state for four years. 140 All her surviving relatives agreed that treatment should be discontinued. 141 The Lord Advocate did not permitting the withdrawal of treatment on the basis of declarator, had distinct advantages. 157 Procedurally, this was not least because a declarator from the civil court could not lawfully bind either the Lord Advocate or the High Court of Justiciary 158 and, ultimately, because 'the consequences of permitting the civil court to determine directly matters properly falling within the separate jurisdiction of the criminal court could lead to some considerable confusion'. 159 In respect of the criminal dimension of Law Hospital, the Lord Advocate had undertaken to 'make a statement on his policy as to whether or not to prosecute', 160 and this was promptly issued, 161 indicating that, although there was no impetus in the civil law to petition for authorisation in every case, the Lord Advocate would only guarantee that no prosecution would follow where the Court of Session had provided such authorisation. 162 In a paper delivered to the Royal College of Physicians and Surgeons of Glasgow (in an 'unofficial ambience') 163 soon after the policy statement, the Lord Advocate stated that 'it is for doctors and relatives involved in such tragic situations to decide which course of action they should adopt'. 164 Thus, as Laurie, Harmon and Porter observe: both the Lord Advocate and the Lord President of the time agreed that decisions could be made on medical grounds or independently of the courts-but neither gave any guidance as to when it would be either necessary or unnecessary to seek judicial approval. 165 Although prosecutorial policy, if not the letter of the civil or criminal law, 166 became unclear after Law Hospital, no Scottish court to date has prosecuted a physician for withdrawing treatment. This is so despite the fact that, similarly, there has been no reported case concerning a petition to the Court of Session's parens patriae jurisdiction, 167 yet 'if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person's death'. 168 Though the newly reconstituted Scottish Parliament passed the Adults with Incapacity (Scotland) Act in 2000, this did not change the position of the criminal or civil common law on the withdrawal of treatment. 169 Indeed, the (then) Scottish Executive stressed that withdrawal and withholding decisions were outwith the purview of the legislation. 170 The Scottish medical and legal professions have, therefore, operated-in cases concerning both adults and infants-on the basis of a generous interpretation of Law Hospital. As a matter of practice, 'the decision as to whether an application is necessary [rests] in each case with those who will be responsible for carrying that intention into effect' 171 (which in cases concerning PVS patients and terminally ill infants will invariably be the treating clinicians). Thus, treating clinicians-if unopposed by the patient's relatives 172 -in fact have a free hand (on the basis of 'indefensibly vague' limitations) 173 to determine the outcome of such cases.
In Law Hospital, Lord Milligan explicitly called for legislation on this issue, recognising that 'the need for legislation concerning the substance of authorisation is the same in Scotland as in England'. 174 None has been forthcoming from either jurisdiction, despite the re-establishment of the Scottish Parliament just a few years after this case. In the absence of legislation, and any further Scottish case law concerning withdrawal of treatment, the common law as expressed in Law Hospital continues to apply in Scotland. As such, as a matter of public policy rather than of law, it appears that the Scottish medical profession has been granted an exceptional privilege to determine what is in the 'best interests' of those under its care, and to act accordingly, without much legal oversight or interference. This is problematic, not least because the Inner House in Law Hospital expressly refused to rule on the question of criminal culpability. Though it might be hoped that 'good common sense would prevail' in even difficult cases, 175 it seems naive to do nothing more than trust in the wisdom of those who hold high office. The possibility of the Crown Office initiating a prosecution of any physician who has acted without approval from the Court of Session remains open, even if it might be unlikely. Likewise, though private prosecution in Scotland is extremely rare, 176 it cannot be presumed that parents, faced with the prospect of losing a child, 177 might not push for a private prosecution, or (perhaps more likely) for civil redress.

C. Gard, Evans and the Court of Session
But for one complication, 178 at common law, there would have been no justiciable conflict between the physicians and parents in any Scottish analogue to Gard or Evans, since patria potestas was vested in the father in respect of his legitimate children. 179 Patria potestas historically carried with it 'powers of custody, residence, education, general upbringing, religious training, legal representation and medical treatment'. 180 Accordingly, fathers made the ultimate decision as to all medical treatment (and, by inference, withdrawal of treatment). 181 The Scottish courts, then, would have been forced to yield to the expressed wishes of the father; 182 there would have been no scope for the parens patriae jurisdiction to be invoked. 183 In the words of Wilkinson and Norrie, the authors of the leading Scottish text on the law of parent and child: The father, it was held, was the best judge of what was in the interests of the child. The court interfered where the child's welfare was seriously endangered by the father's conduct, not because the law was otherwise neglectful of the interests of the child but because, unless there was clear evidence that the father was abusing his position, interference by the court would be to substitute an inferior for a superior view of where those interests lay. 184 Absent statutory enactment, it is clear that parens patriae jurisdiction could be invoked only 'where agnates fail'. 185 With the introduction of the Guardianship Act in 1973, mothers also acquired patria potestas, 186 but by then the power had been significantly diluted. 187 The power conferred on mothers is nevertheless such that they too would enjoy the normal powers of parenthood, meaning that the parens patriae jurisdiction can only be exercised not simply where agnates fail, but, indeed, where all cognates fail.
By the 1990s, the control granted by patria potestas had entirely ceased to be judicially recognised and the common law had been largely replaced by statute. 188 At present, since 'it would be open to the Court of Session in exercise of its parens patriae jurisdiction to make orders authorising or prohibiting medical treatment', 189 parens patriae now holds supremacy over any residual patria potestas. In a complete reversal of the common law position expressed by Wilkinson and Norrie,190 in the 'rare and exceptional' 191 cases in which parents disagree with physicians as to the question of withdrawing treatment, the view of the father (and mother) may now be expressly deemed to be inferior to that of the court. Thus, were a case akin to Gard or Evans to arise in Scotland, it would be competent for the physicians to petition the Court of Session to exercise its parens patriae jurisdiction and substitute its own decision-which would be, in fact, the decision of the attending physicians-for that of the biological parents.
Since such a case has not yet arisen, the likelihood of the court granting such a petition cannot be definitively known. While, at one time, the Scottish courts were deferential towards decisions made by medical practitioners, 192 which explains in large part the paucity of medico-legal cases, 193 the attitude of judicial submission has softened even in this one-time bastion of medical paternalism. 194 Patients are no longer seen as the passive recipients of medical care, but rather as persons-or, indeed, consumers-holding rights and exercising choice. 195 Thus, it is open to the Scottish courts, in the 21st century, to favour the opinions of the parents of a terminally ill child, in circumstances akin to Gard or Evans, rather than to favour those of the medical professionals.
Since the Scottish courts must arbitrate between the competing views of the physicians and parents before expressly setting down its own view, as parens patriae, of where the 'best interests' of the child lie, they must have greater regard to public policy matters in the parent-child relationship. Unlike in England and Wales, it is not competent for the court to state that it is simply declaring that the physicians' proposed conduct is lawful; the Court of Session must additionally subordinate the will of the parents to its own, should they side with medical opinion. Since 'the contentious aspect of the case[s of Gard and Evans] is the issue surrounding parental autonomy', 196 this places the court in a difficult position; thus, in spite of the fact that they could now do so, the Scottish judiciary might be reluctant to utilise its parens patriae jurisdiction in any case in which the biological parents of the child expressed a contrary will.

Conclusion
Every lawyer is familiar with the 'reasonable person'. It is perhaps reasonable to conclude that 'parents, physicians and other caregivers, intimately connected through the birthing process, are the individuals best suited to make these intensely personal and wrenching decisions' concerning the withdrawal of medical treatment from terminally ill children. 197 The law, though, cannot presume that all parents or persons will behave reasonably under such extraordinarily circumstances. There must be judicial mechanisms in place to arbitrate between competing positions. Though the majority of cases might be practically resolved without recourse to such legal mechanisms-indeed, an additional extra-legal process of physician-parent mediation might prove useful in cases where there is a real danger of a breakdown in communication-it does not follow that there is no need to explore the letter of the law in this area. The law must be equipped to deal with the (understandably, given difficult circumstances) intractable and unreasonable person.
In Scotland, the letter of the procedural law differs materially from that in England, Wales and Northern Ireland. Rather than deciding such cases by way of declarator, the Scottish court, in Law Hospital, expressed that such cases should be decided by petitioning the parens patriae jurisdiction of the Court of Session. This jurisdiction allows the court to substitute its own decision for that of the biological parents. Similarly, though in practice physicians have enjoyed free reign to withdraw treatment if, in their opinion, it is not in the 'best interests' of that patient, it is likewise open to the court to refuse consent to the withdrawal of such treatment. No Scottish physician has been prosecuted for withdrawing treatment in the absence of the consent of the Court of Session. It might be inferred that this is because it is difficult, if not impossible, 198 to prove that a physician, acting with therapeutic intent, exhibited any criminal or culpable mental state. Thus, in the absence of express determination by the courts that the withdrawal of treatment is not in the best interests of the patient, Scottish prosecutors have tended to presume therapeutic motive and abstain from prosecution. Since it is exceedingly difficult to raise a private prosecution in Scotland, it might be concluded that Scottish physicians will not be held criminally culpable for exercising their medical judgment in the absence of an express refusal of consent set out by the parens patriae. It is only if a physician unsuccessfully petitions the Court of Session, 197 Meyers (n 92) 97. 198 See eg HM Advocate v Ross National Archives of Scotland, JC26/1967/117, High Court of Edinburgh trial papers, 24 January 1967.

706
Oxford Journal of Legal Studies VOL. 40 before proceeding to withdraw medical treatment regardless, that the criminal law might come into play. The fact that the Scottish courts must exercise their parens patriae jurisdiction in cases concerning the withdrawal of treatment from a terminally ill infant has not proven problematic in practice, since Scotland has continued to observe its tradition of deciding medical matters privately. 199 However, it is quite possible that the Scottish courts could, as a result of the key procedural difference discussed here, decide a case analogous to Gard or Evans differently from the English courts. This is so since the Scottish courts would be forced to expressly balance the competing interests of the parents and the physicians in deciding whether or not to exercise parens patriae jurisdiction. Since, historically, parens patriae could be utilised only if the incapax had no surviving (or legally recognised) parents, the Scottish courts might be reluctant to employ their parens patriae jurisdiction to unequivocally subordinate the views of the parents to those of the court.
With that said, since parental potestas has largely been replaced by a statutory regime which confers less power on parents than they enjoyed at common law, it is, of course, possible that the Scottish courts would trek a similar tack to the English courts. This does not change the fact that, though they would assess whether or not to do so with reference to the 'best interests' test, they would be forced to arrive at, and state, their conclusion by way of a notably distinct legal process. To speak of the topic of withdrawing treatment from terminally ill infants as a 'UK medical law matter' is, therefore, to err.