The Judge Who Agonised All Night

THE JUDGE WHO AGONISED ALL NIGHT THE JUDGE WHO AGONISED ALL NIGHT By Ch. Irshad Ahmed [Additional Secretary, Ministry of Law and Justice, Islamabad,] Who was the judge? The judge was Sir Alan Hylton Ward of Family Division of the High Court of England. He said: " I confess to having agonised all night to reach my conclusion"; and after reaching the conclusion the judge expressed a general thanks to all counsel but special thanks to the Official Solicitor and to Mr. Michael Nicholls of his department "for the rapid response to my cry for help ...." (See In re T.(Adult: Refusal of Treatment) 1992 3 WLR 782 at p. 792; (1992) 4 All ER 649). What agonised the judge all night and why he was crying for help? He was an out and out judge. It was not his personal problem. He was concerned with a situation giving rise to a conflict between two interests, that of a patient and that of the society in which the patient lived, the patient's interest consisted of his right of self determination his right to live his own life how he wished even if it will damage his health or lead to his premature death. Society's interest in upholding the concept that all human life is sacred and that it should be preserved if at all possible. It is well established that in the ultimate the right of the individual is paramount. The legal position is firm that an adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather another of the treatments being offered. This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non‑existent. It was so held by the House of Lords in Sidaway v. Board of Governors of the Bathlem Royal Hospital and The Maudsley Hospital 1985 A.C. 871; (1985) 1 All ER 643. In a Canadian case reported Malette v. Shulman (1990) 67 DLR (4th) 321, the Court had upheld an award of twenty thousand dollars to a patient who had been given a blood transfusion in order to safe her life but against her known wishes. There an unconscious patient was brought to a hospital who was carrying card that she is a Jehovah's Witness (Christian fundamentalist sect who believe that taking of blood transfusion was not moral) and as such would not like to take blood transfusion. The hospital authorities, notwithstanding the patient's wishes, decided to give a blood transfusion in order to save her life. The patient sued the hospital for damages. The judge said: "At issue here is the freedom of the patient as an individual to exercise her right to refuse treatment and accept the consequences of her own decision. Competent adult, as I have sought to demonstrate, are at liberty to refuse medical treatment even at the risk of death. The right to determine what shall be done with one's own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self‑determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority". On. the face of the above law Judge Ward was approached by the father of a woman named T. asking for a declaration that it will not be unlawful for the hospital to give blood transfusion to T. notwithstanding that she has been expressing that she does not want a blood transfusion. Divulgence to T.'s history would be appropriate to evaluate the difficulty of the circumstances in which the judge was called upon to give the decision. T.'s parents separated in 1975 when she was 3 years old. There were many reasons for their separation, but one was undoubtedly the fact that, whereas T.'s mother was a fervent Jehovah's Witness her father emphatically rejected that faith. On Wednesday July 1, 1992 when T was 34 weeks pregnant, she was involved in a road traffic accident. She went to hospital where she complained of pain in her right shoulder and in the right side of her chest. She was not initially X‑rayed because of her pregnant condition, but she was advised to rest and to take an analgesic. She returned to the hospital in the early hours of Saturday July 4, complaining of increased chest pain. She was X -rayed and was diagnosed as suffering from pleurisy or pneumonia. She was prescribed antibiotics and analgesics including pathidine, which is a narcotics drug, and she was given oxygen. It is at this point that timings become important. T. was admitted to the ward at 6‑10 a.m. and was given 50 mg of pathidine together with antibiotics at 6‑55 a.m. At that time she was very breathless, was expectorating dirty coloured sputum and complaining of severe chest and shoulder pains. Later during the morning she had a lung scan which did not reveal any abscess but showed a picture which was consistent with pneumonia. Shortly after 1‑00 p.m. T. was given another doze of pathidine. At 6‑30 p.m. T.'s mother arrived at the hospital. T.'s father arrived at the hospital at 8‑30 a.m. on Sunday July 5. He observed that his daughter was heavily sedated and that her breathing was extremely laboured. T s father was anxious as to any complication which might arise from her mother's religious belief, spoke to a doctor who told him that T. did not require a blood transfusion at that stage. At 5‑00 p.m. T told the staff nurse that she did not want a blood transfusion as she used to be a Jehovah's Witness and she still maintained some beliefs including that taking of blood transfusion was not permissible under the beliefs. At 10‑40.p.m. T. went into labour, and the doctors decided that she should be transferred to maternity. In the maternity unit a decision was made that delivery should be by Caesarean section. T. told the midwife and doctor F. that she did not want blood transfusion. The Caesarean section was performed in the early hours of Monday July 6, but unfortunately the baby was stillborn. That night T.'s condition deteriorated and she was transferred to intensive care unit. She also developed an abscess in her lungs. The situation was such that, given a free hand, the doctor would unhesitatingly had administered a blood transfusion, but they felt inhibited from doing so in the light of T.'s wishes. T. was put on a ventilator and paralysing drugs were administered. She remained sedated and in critical condition throughout Tuesday July 7. If T. was to survive the possibility could be seen only through blood transfusion. On Wednesday July 8, TA father decided to seek assistance of the Court by way of a declaration that it will not be unlawful for the hospital to administer blood transfusion to T. The TA father's request for assistance was placed before Judge Ward. This was at about 3‑00 p.m. He made immediate inquiries by telephone but felt that there was insufficient evidence to justify his intervention. However, the judge thought that the situation was grave. It so happened that Mr. Allen Levy, a barrister, was appearing before the judge in another case. Judge knew that Mr. Levy had very great experience of cases of this type. Judge Ward suggested to TA father to consult Mr. Levy. It is highly unusual for a judge to suggest a litigant to consult a particular lawyer, but the judge went unusual in view of the gravity of the situation. In the result Mr. Levy, his junior and their instruction solicitor together with T.'s father attended at the judge's lodging shortly after 11‑00 p.m. The judge took evidence on telephone from doctor `F. The doctor informed the judge that T. was under the influence of narcotic drug pathidine and was not fully compos mends; that she was not fully rational in making an assessment of her medical treatment being unaware how critical her condition was. On the basis of the above evidence the judge ruled: "I considered at 1‑30 a.m. that I had no option but to grant the interlocutory relief that was sought by way of declaration that in the circumstances which were prevailing it would not be unlawful for the hospital to administer a blood transfusion to T. despite the absence of her consent because that appeared manifestly to he in her best interest". Thereupon T. received a blood transfusion. The matter again came before the Judge Ward on Friday July 10, for a full hearing. The question before the Judge was whether he could declare that it would not be unlawful for the hospital to administer a blood transfusion to T. in spite of the fact that she had not consented to it. This was the situation which agonised the judge all night and he had been crying for help to balance the conflicting interest of an individual and of the society in which the individual lives. The judge ultimately concluded that T. never wanted to die and had never refused for blood transfusion in the circumstances in which she was placed of which she would have never thought of. The judge said: "I find that her refusal does not cover the emergency which has now arisen which was outside her contemplation and the contemplation of others at the time she expressed her opposition to a blood transfusion. I find that the refusal she then gave to the administration of blood was refusal which took no account of the likely change in her circumstances. I do not find that the refusal as made evinced a settled intention on her part to persist in that refusal even if it is injurious to her health and when the best intersects for her, health require that blood be transfused to her. Given that she is now at this moment incapable of giving or refusing a consent to the treatment which it is necessary in her interests, perhaps to save her life and certainly to advance her cure, I do not find myself satisfied that the refusal is a continuing one, evincing a settled intention on her part to persist in it and accepting, as I do, the father's evidence that she would rather have blood than die, I declare that it shall be lawful for the hospital, in the circumstances prevailing, to administer blood to her, that being to her best interests." The Official Solicitor being the guardian of individual's rights filed appeal against the judge's decision. The Court of Appeal not only upheld the judge's decision but also added gloss to it perceiving that the appeal had a wider purpose, namely to give guidance to hospital authorities and to medical profession on the appropriate response to a refusal by an adult to accept treatment. The Court of Appeal summarised the guidelines as under:‑‑ "(1) 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. Futhermore, it matters not whether the reasons for the refusal were rational or irrational, unknown or even non‑existent. This is so notwithstanding the very strong public interest in preserving the life and health of all citizens. However the presumption of capacity to decide, which stems from the fact that the patient is an adult, is rebuttable. (2) An adult patient may be deprived of his capacity to decide either by long term mental incapacity or retarded development or by temporary factors such as unconsciousness or confusion or the effects of fatigue, shock, pain or drugs. (3) If an adult patient did not have the capacity to decide at the time of the purported refusal and still does not have that capacity, it is the duty of the doctors to treat him in whatever way they consider, in the exercise of their clinical judgment, to be in his best interests. (4) Doctors faced with a refusal of consent have to give very careful and detailed consideration to what was the patient's capacity to decide at the time when the decision was made. It may not be a case of capacity or no capacity. It may be a case of reduced capacity. What matters is whether at that time the patient's capacity was reduced below the level needed in the case of a refusal of that importance, for refusal can vary in importance. Some may involve a risk to life or of irreparable damage to health. Others may not. (5) In some cases doctors will not only have to consider the capacity of the patient to refuse treatment, but also whether the refusal has been vitiated because it resulted not from the patient's will, but from the will of others. It matters not that those others sought, however strongly, to persuade the patient to refuse, so long as in the end the refusal represented the patient's independent decision. If, however, his will was overborne, the refusal will not have represented a true decision. In this context the relationship of the persuader to the patient for example, spouse, parents or religious adviser will be important, because some relationships more readily lend themselves to overbearing the patient's independent will than do others. (6) In all cases doctors will need to consider what is the true scope and basis of the refusal. Was it intended to apply in the circumstances which have arisen? Was it based upon assumptions which in the event have not been realised? A refusal is only effective within its true scope and is vitiated if it is based upon false assumptions. (7) Forms of refusal should be redesigned to bring the consequences of a refusal forcible to the attention of patients. (8) In cases of doubt as to the effect of a purported refusal or treatment, where failure to treat threatens the patient's life or threatens irreparable damage to his health, doctors and health authorities should not hesitate to apply to ‑ the Courts for assistance." Court of Appeal's decision is reported In re: T.(Adult: Refusal for Treatment) (1992) 3 WLR 782; 1992 4 All ER 469. How the Judges are caring in human relations. MR. JUSTICE MUHAMMAD ILYAS, ACTG. CHIEF JUSTICE OF LAHORE HIGH COURT Mr. Justice Muhammad Ilyas was born on Ist October, 1931 in Village Chak Fazil, District Gujrat. Graduating from Zamindara Col lege, Gujrat, he got admission in the Punjab University Law College, Lahore from where he got LL.B. degree in 1951, securing not only first position in the University but also setting up a new record of marks in recognition of which he was awarded Univer sity Gold Medal. After practicing law for about two years he appeared in the Provincial Civil Service (Judicial Branch) Competitive Examination in 1952. Here again he stood first among the candidates. Since he was below the age prescribed for the post of Civil Judge, the relevant service rule was relaxed to accommodate him in view of his outstanding academic achievements. He, thus, became the youngest ever Civil Judge of the world which fact has gained him an entry in the Guinness Book of Records. In 1957 he was the only judicial officer to be selected from the whole of the then West Pakistan to attend a course of legal studies at the Stanford University in the U.S.A. where he was trained, inter alia, in legislative drafting. During his brilliant career extending over five decades he has held several high judicial posts and other offices of great import both at the Provincial and Federal levels including posts of District and Sessions Judge, Special Judge (Anti‑Corruption), Chairman, Federal Service Tribunal, Joint Secretary to the Government of Punjab and Officer on Special Duty in Lahore High Court. At the crucial time when the present Constitution (1973) was to be framed, his services were requisitioned by the Federal Government for assisting the National Assembly in that onerous task and also to draft different sets of rules of business envisaged by the new Constitution. For this purpose he worked as Additional Secretary in the National Assembly Secretariat. In 1978 he was appointed Judge of the Lahore High Court and in due course of time he became senior puisne Judge and acted as Chief Justice on a number of occasions. In 1992 he was appointed as a Judge of the Federal Shariat Court from where he was elevated as a Judge of the Supreme Court of Pakistan on 15th June, 1994. He is the first ever Judge of the Federal Shariat Court belonging to the subordinate judiciary who has been directly appointed as a Judge of the Supreme Court. As a Judge of the Supreme Court of Pakistan he is now acting as a Chief Justice of the Lahore High Court since 27th of June, 1994. True to his stamp and tradition of being the first in most of the things, he is the first member of the former P.C.S. (Judicial) to hold the office of Chief Justice of High Court. His outstanding achievements have also been befittingly recorded in the world famous book "Men of Achievements" published by the International Biographical Society, Cambridge, U.K. Mr. Justice Muhammad Ilyas has been a devoted worker in the Pakistan Movement. He is an acknowledged writer and renowned poet of Naatia.Kalam. His book on poetry "Shin‑e‑do‑Karim" has been published and five more books are under print. MR. JUSTICE ABDUL MAJID KHANZADA, JUDGE, SINDH HIGH COURT Mr. Justice Abdul Majid Khanzada was born on 12‑10‑1936 at Tijira (India). After graduating from University of Sindh he studied law at the University of Karachi. He joined the legal profession in 1962 and except for a short spell of time, when he was appointed ambassador of Pakistan to Libya, he has been an active and enthusiastic member of the Bar. He was elected to various offices at Hyderabad Bar Association including office of Joint Secretary, General Secretary and for three terms as its Vice‑President. During his long professional career spreading over more than three decades, he made himself known as an intelligent, hardworking and conscientious lawyer. Due to his winning habits and pleasant personality he soon endeared himself both to the Bench and the Bar. In his towering versatility, he is an example to others. In addition to his devotion to his profession he had the occasion to be a member of the Provincial Assembly of Sindh in 1977 and had the distinction of having been appointed as Ambassador of Pakistan at Libya in 1989‑90. In social field also he did not lag behind and was thrice elected as President of Dialdas Club, a prestigious Citizens' Club and Social Organisation at Hyderabad. He was also elected as Member Executive Committee of Hyderabad Gymkhana from 1985 to 1989. He is Chairman of Pakistan Khanzada Welfare Society and Chairman of Managing Committee of the Hospitals run by the said Society. The fact that he was Secretary Bazm‑i‑Adab Government College, Hyderabad shows the many‑sidedness of his personality.