Tuesday, 11 November 2008

Have a heart for the vulnerable

The case of Hannah Jones raises some interesting questions. She is thirteen years old and has a serious heart complaint which is likely to lead to her death within a short period of time. Only one course of treatment is possible, a heart transplant. No one knows whether a suitable donor heart could be found while she is strong enough to receive it, nor whether the transplant would succeed. What is certain is that a successful transplant would give greater life expectancy but a lifetime of anti-rejection drugs and regular hospital visits, possibly including further surgery from time to time. In fact a donor heart was available last year, and I will return to that fact a little later.

If Hannah were aged over eighteen the story would attract no attention. She would be responsible for deciding whether to put herself forward for a transplant and her decision would be final. Because she is a child the decision, in law, is not for her to take. It is at this point that things become messy. The general rule is that it is for her parents to take the decision because they are responsible for her care. In the days before raffia cardigan wearing social workers, any perceived failure of Hannah's parents to act in her best interests could lead to local worthies raising the matter in the courts and Hannah being made a Ward of Court so that a judge could review the evidence and decide whether he should overrule her parent's choice. Wardship is an ancient area of law and grew up to reflect the fact that some people make patently and dangerously wrong decisions which put their children at risk. The court has long had the power to step in to protect the vulnerable from the stupidity and misjudgment of others.

In passing it is worth noting that the wardship jurisdiction was invented by the courts themselves when they felt they had to act. It is by no means unique in this respect. There is a massive body of law known as "Equity" which was invented piecemeal over many decades to provide a framework of rights and responsibilities because people were acting so unfairly towards others that the courts felt the need to step in. More recently, Judicial Review developed to provide a check against the arbitrary or irrational exercise of powers by local authorities and other public bodies.

The staunchest libertarians might find it difficult to accept the right of the State, through the courts, to invent interventionary powers of this kind. No doubt they would applaud Judicial Review because it gives a remedy for the little man against the State, but both Wardship and Equity involve the State interfering in relationships between individuals without any democratic mandate at all. These jurisdictions grew up to prevent one person acting in a manifestly unfair way towards another. At the margins everyone has different views of what is fair and unfair but the core concepts are embedded in our culture, such as it being unfair to gain a commercial benefit by misleading someone or to cause a child to suffer avoidable pain. If no one else steps in to uphold the common standard, the courts will sometimes do so and will always try to give a remedy where they feel "no, you just don't treat someone like that".

So, what has this got to do with Hannah Jones? When an apparently suitable donor heart was available in the summer of 2007 she decided she did not want a heart transplant. She discussed it with her parents and they agreed with her decision. The choice she faced was one nobody would wish for - to die soon or to live longer but with great uncertainty and with the risk of constant intrusive medical procedures. I know little about her parents but have seen nothing to suggest that their decision to reflect their daughter's wishes and refuse consent to a transplant was anything other than rational, fair and balanced. Had this happened a hundred years ago the matter might well have come in front of the Wardship judge just so that he could be satisfied the decision was taken after considering all relevant circumstances, but there would have been no prospect of him overturning the parents' decision once he saw that they were sensible people who reached what they believed to be the right decision for their child. After all, Wardship was all about stepping in to protect a child in danger, not to substitute a judge's opinion for a fully considered parental decision.

Of course we are not living in 1908 but in 2008 and oh how things have changed. The old Wardship jurisdiction is no more (I believe it still exists in some very limited circumstances but is hardly ever used) and has been replaced by child care proceedings. Every local authority spends a fortune each year on social workers, counsellors, advisors and all the other paraphernalia of the modern welfare State. When Hannah's parents informed the hospital that they did not wish to use the donor heart that had become available the child care team span into operation, threatening to remove their daughter from their care unless they submitted her to the transplant. They started court proceedings to seek to enforce their opinion of what was best for Hannah and only after nine months did they capitulate and accept their approach was doomed to failure.

The news reports do not tell us how the local authority came to its decision but they don't need to because the procedure it always the same. Dozens of meetings would have been convened at which the case was discussed among social workers, doctors and lawyers. Dozens of reports and memoranda would have been drafted and considered in which the substance of the decision about Hannah's heart transplant would have been secondary to the desire of the child care "professionals" to have their chosen course of action upheld. Legal advice would have been received from the Council's own in-house child care lawyers and from one or more external independent solicitors and barristers. The cost to the local authority in terms of fees paid to outside advisors and salaries to the staff involved would have been hundreds of thousands of pounds.

It is easy to scoff at this and consider it all to be a total waste of time and money, but that would be to overlook the need to do exactly what the old Wardship judges did - oversee the way the vulnerable are treated by those responsible for their care. All we have to do is change the facts a little and assume Hannah's parents are thick, pie-munching, welfare-sucking crack addicts and she herself had a "don't care" attitude to it all. The picture then is of a thirteen year old with no view of her own and a decision being taken on her behalf by people who would not appear capable of reaching a considered opinion. No rational person could criticise a local authority for using its supervisory powers to take the matter to court and seek a ruling which did take everything into account.

The problem, of course, is that the supervisory powers of local authorities seem to have become something else. Instead of stepping in only where parents cannot cope or cannot act responsibly, their presumption seems to be that their opinion is the default position and should be given preference to all other views. I know not whether there is any hope of this arrogant approach changing in the future, somehow I doubt it because every bureaucracy is self-perpetuating and breeds an inflated sense of its own importance and worthiness.

What should not result from this case is calls for local authorities powers in this field to be reduced or abolished. The problem is not in the existence of the powers but in the way they are used and that is always subject to the ultimate decision of a judge. The current system is not infallible. There should, in my view, be far greater review by the courts at an early stage so that a wrong-headed approach by local authority employees does as little damage as possible. Nine months is far too long to take to conclude that people like Hannah Jones' parents are perfectly capable of reaching a decision which, it must be stressed, is their responsibility. But one bad case does not justify dismantling a system of protection which has been in place for centuries.

1 comment:

wonderfulforhisage said...

Congratulations on a fine post.