Glass v. The United Kingdom

Applicants, a severely handicapped child and his mother (and legal proxy) Ms. Glass, claimed an Article 8 violation (right to respect for private life) when Ms. Glass’ objection to a course of medical treatment was overruled by the medical staff.

As a legal proxy, the mother gave authorization to the doctors at St Mary’s Hospital to administer diamorphine to her son but subsequently revoked it. Ms. Glass claimed the decisions to administer diamorphine to her child and to place a DNR notice in file notes without her knowledge interfered with her and her son’s rights under Article 8. She contended that, regarding circumstances involving disagreements between a severely disabled child’s legal proxy and doctors, the task of balancing fundamental rights should be a judicial function and is ultimately inappropriate and unreasonable to be left to doctors.

The government claimed the actions taken by the hospital staff were fully in line with Article 8 citing the nature of the emergency that confronted the hospital staff made them necessary, claiming that exceptional circumstances relieved them of the obligation to seek the consent of a parent before treating a child. The government pointed out that Ms. Glass had previously agreed on the course of action to be followed in the event of a future emergency. The Government claimed that it was not practical for the Trust to seek the intervention of the courts with respect to Ms. Glass’ opposition to the administration of diamorphine to her son given that the latter’s condition was critical and given that the doctors’ duty to act in the first applicant’s best interests required them to react swiftly. Furthermore, the Government claimed that any application to the High Court would have offered no remedy as the High Court would not have ordered the doctors to provide treatment they did not consider clinically appropriate and would not have regarded Ms. Glass’ views as determinative.

The Court considered that the decision of the authorities to override Ms. Glass’s objection to the proposed treatment in the absence of authorization by a court resulted in a breach her son’s right to respect for his private life, particularly his right to physical integrity. While Ms. Glass had given doctors authorisation to pursue a particular course of treatment, it was clear that, when confronted with the reality of the administration of diamorphine to her son, Ms. Glass expressed her firm opposition.

The Court stressed that its function was not to question the doctors’ clinical judgment, the appropriateness of proposed treatment, nor was its function to speculate as to the outcome of an application by the Trust to the High Court for authorization to pursue the proposed treatment.

Finding an interference with the exercise of an Article 8 right, the Court then considered the “necessity” requirement of this interference under Article 8 para. 2. The Court stressed that the United Kingdom’s existing regulatory framework is predicated on the duty to preserve the life of a patient, save in exceptional circumstances and prioritizes the requirement of parental consent and, save in emergency situations, requires doctors to seek the intervention of the courts in the event of parental objection.

The Court distilled the applicants' contention to an assertion that the dispute between them and the hospital staff should have been referred to the High Court and that the doctors treating the first applicant wrongly considered that they were faced with an emergency.

The Court did not accept the Government’s claim the exigencies of the situation were such that diamorphine had to be administered to Ms. Glass’ son as a matter of urgency in order to relieve his distress and that it would not have been practical in the circumstances to seek the approval of the court. Furthermore, the Court stated that the situation could not be isolated from earlier discussions between hospital staff and Ms. Glass about her son’s condition and its treatment in the event of an emergency. The doctors own records indicate there were fundamental disagreements between Ms. Glass and the attending doctors. At this point, the Trust should have actively sought to defuse the situation in anticipation of any further emergencies by petitioning an intervention by the High Court.

The Court stated that even if the serious nature of the first applicant's condition resulted in an emergency situation in which an application by the Trust to the High Court was not realistic, the Trust's failure to make a High Court application at an earlier stage contributed to this situation. Furthermore, the Court was not persuaded that the emergency situation precluded the Trust from making a High Court application - a procedure that could be involved at short notice - when Ms. Glass’ opposition became clear as the doctors and officials used the limited time “to impose their views on [Ms. Glass]” and even summoned the presence of a police officer. Finally, the Court confirmed that Ms. Glass clearly withdrew her consent to administer diomorphine and that staff should have respected her change of mind.

The Court did not examine separately Ms. Glass’ complaint regarding the inclusion of the DNR notice in her son’s case notes without her consent and knowledge.

"70. The Court notes that the second applicant, as the mother of the first applicant – a severely handicapped child – acted as the latter's legal proxy. In that capacity, the second applicant had the authority to act on his behalf and to defend his interests, including in the area of medical treatment. The Government have observed that the second applicant had given doctors at St Mary's Hospital on the previous occasions on which he had been admitted authorisation to pursue particular courses of treatment (see paragraphs 15, 17 and 66 above). However, it is clear that, when confronted with the reality of the administration of diamorphine to the first applicant, the second applicant expressed her firm opposition to this form of treatment. These objections were overridden, including in the face of her continuing opposition. It considers that the decision to impose treatment on the first applicant in defiance of the second applicant's objections gave rise to an interference with the first applicant's right to respect for his private life, and in particular his right to physical integrity (on the latter point, see, mutatis mutandis, X. and Y. v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Pretty v. the United Kingdom, no. 2346/02, §§ 61 and 63, ECHR 2002-III, Y.F. v. Turkey, no. 24209/94, 22 July 2003, § 33). It is to be noted that the Government have also laid emphasis on their view that the doctors were confronted with an emergency (which is disputed by the applicants) and had to act quickly in the best interests of the first applicant. However, that argument does not detract from the fact of interference. It is, rather, an argument which goes to the necessity of the interference and has to be addressed in that context." Page 17-18.