Scottish Court of Session Decisions

At advising, on 22 March 1996—

LORD PRESIDENT (Hope)—The purpose of these proceedings is to obtain the sanction of the court to the termination of nutrition and hydration and all other life sustaining treatment to a patient at Law Hospital. The patient, Mrs Janet Johnstone, has been in a persistent vegetative state there since 22 January 1992. She has no prospect of recovery and is unable to give a valid consent to the taking of these steps. If the steps are taken the intention is that she should receive medical treatment only for the sole purpose of allowing her to die peacefully and with dignity.

The case raises a number of important and very difficult questions. But there is no dispute about the medical evidence. It is not in doubt that the patient has been in a persistent vegetative state for at least the past three years and that there is no prospect of any improvement in her condition. This is the result of irreversible damage to the cerebral cortex. The function of consciousness has been lost completely and for ever. The patient is wholly unaware of her surroundings. She cannot see, hear, feel pain or pleasure, communicate by word or movement or make voluntary movements of any kind. The brain stem structures are preserved, and so long as this continues she remains clinically alive. The vegetative reflexes which control such functions as breathing, cardiac action and digestion are maintained. Involuntary movements of the eyes and the ability to make sounds give the impression of apparent wakefulness. This is followed by periods of apparent sleep with the eyes closed. But she is now permanently insensate, and she remains alive only because feeding and hydration are provided to her artificially and because of the nursing care which she continues to receive in the hospital. The consultant physician who is in charge of her case considers her position to be hopeless and that there are no useful avenues of treatment to explore. His opinion is supported by that of two consultant neurologists. The consultant neurologist from whom the curator ad litem to Mrs Johnstone has obtained a report is of the same opinion. Her husband and daughter and her two brothers, who are her only relatives, have been consulted and they have all now agreed that life sustaining and medical treatment should be discontinued. The patient herself however is unable to give her consent. This gives rise to problems of medical ethics, law and procedure which these proceedings seek to resolve.

The action has been raised as an ordinary action in the Outer House, and in form it is an action of declarator. The terms of the declarator have been modelled on those of the declarations in Airedale NHS Trust v Bland [1993] AC 789, in which it was held by the House of Lords that the principle of the sanctity of life was not violated by ceasing to give medical care and treatment to a patient who had been in a persistent vegetative state for over three years as a result of serious injury sustained in the Hillsborough football ground disaster, that he had no further interest in being kept alive and that the omission to perform what had previously been a duty would no longer be unlawful. Valuable guidance is afforded by that case about the approach which a court should take, in these difficult and distressing cases, to the issues raised by the fundamental rights of every human being to life and to self determination. The opinions expressed about the legal framework within which these decisions must be taken are also valuable. But the procedural route which had to be followed in that case, of seeking a declaratory remedy, was one which was taken with reluctance by the House of Lords, as the parens patriae jurisdiction of the Court in England had been revoked and was no longer available. If that jurisdiction remains available in Scotland the declaratory remedy will be unnecessary here and it may also be inappropriate. So the question whether it remains available and if so whether it can be invoked in this case must be explored. The extent to which the Court of Session can follow the House of Lords in expressing an opinion about the criminal consequences of discontinuing treatment is another difficult issue which must be resolved in view of the terms of the proposed declarator.

These issues, and the need for more general guidance to be given as to how these cases should be dealt with by the Court in the future, led the Lord Ordinary, before whom the action came by way of proof before answer, after hearing evidence to report the case to the Inner House for certain rulings, including a ruling about the competency of the action. As we considered the case to be one of difficulty and importance we appointed it to be heard by a Court of five Judges. We have now had the benefit of hearing submissions by counsel for the pursuers and for the curator ad litem to Mrs Johnstone and by the Lord Advocate, to whom we are particularly indebted for the care with which he presented his argument in the public interest. As we are agreed that, in the special circumstances of this case, the action is competent the case will be returned to the Lord Ordinary so that he may now take the decision which the Court has been asked to take in the light of the rulings which we have made. It should be understood however, lest there be any misunderstanding about our function at this stage in the proceedings, that this decision must be taken by the Lord Ordinary. Our function is to give the guidance which he needs, in the absence of any reported case in Scotland to which he can refer for authority and of any legislation on these matters, to ensure that his decision is a competent one and that it is made by applying to the facts of this case the correct principles.

It may be helpful if I were to describe at the outset what I consider to be the function of the Court in a case of this kind. It belongs to a group of cases which have been recurring with increasing frequency in recent years where the courts are being asked to give their authority to actions to be taken by medical practitioners which raise acute questions of moral or ethical principle. Medical science has now advanced to such a degree that many techniques are now possible which only a generation ago would have been unthinkable. The ability to prolong life by artificial means has reached such a stage that it is possible to nourish the body and preserve it from disease so that life in the clinical sense may be continued indefinitely. Invasive techniques such as those of sterilisation are also possible without the slightest risk of any other physical injury than that which is to be inflicted deliberately. Where the patient is of full age and capable of understanding and consenting to the procedures which on medical advice are for his or her benefit, or decides to refuse medical treatment, the right of self determination provides the solution to all problems, at least so far as the court is concerned. It is not in doubt that a medical practitioner who acts or omits to act with the consent of his patient requires no sanction or other authority from the court. The patient's consent renders lawful that which would otherwise be unlawful. It is not for the court to substitute its own views as to what may or may not be in the patient's best interests for the decision of the patient, if of full age and capacity.

The problems arise where the patient is not of full age or lacks the capacity to consent to what is being proposed. There is an ethical problem for the medical profession, especially in those cases where the proposal is to cease treatment which sustains life. Invasive techniques plainly cannot be carried out without consent or other authority, but in cases such as the present one no invasive techniques are proposed. Yet the cessation of treatment will bring life to an end, and that conflicts with what many would see as the moral duty to prolong life for as along as possible. The right of the individual to determine his or her own future cannot be exercised by a patient who is insensate, as the patient is in this case. The medical profession can say all that needs to be said about the patient's condition and prognosis and about the consequences if the artificial feeding and other treatment is withheld. It may be that in the past, as Lord Browne-Wilkinson observed in Airedale NHS Trust v Bland [1993] AC 789 at p 880G, doctors exercised their own discretion in such cases, in accordance with medical ethics, where there was a body of informed and responsible medical opinion that to continue the treatment would confer no benefit. But increased awareness of the extent to which views may differ on the morality of such conduct has raised questions about what the law has to say on the matter. It has not been suggested that the court should instruct doctors to do what their own conscience tells them would be objectionable. But the question whether it would be lawful to cease to provide or to withhold treatment cannot be left to the doctors. This is a matter for the law, and it must be decided by the courts so long as there is no declaration on the matter by Parliament.

The law must be guided by moral considerations, but it does not deal only in abstract principles. The right to life and the right to self determination, which are not always capable of being reconciled with each other, must be respected. But in the end of the day the law exists to impose sanctions or to provide remedies. The law becomes relevant to the process of decision-taking because a breach of duty is a delict which may give rise to a liability of damages. A deliberate omission which causes death may also expose the medical practitioner to the allegation that his conduct was criminal. Medical ethics must take account of the law on these matters, but it is not a sufficient reassurance for the doctor in the present state of the law to be told that his proposal conduct is medically ethical. He is entitled to be told whether his conduct will expose him to the risk of an action of damages for negligence, and he cannot ignore the risk that a prosecution may follow on the ground that his conduct amounted to murder or at least to culpable homicide.

I regard the criminal law as ill-suited to control the conduct of doctors in the exercise of their skill and judgment, especially when they have acted in accordance with what McNair J referred to in Bolam v Friern Hospital Management Committee at pp 586–7 as a practice accepted as proper by a competent body of professional opinion; see also Hunter v Hanley per Lord President Clyde at p 206. Nevertheless the threat of a criminal sanction, and of the devastating effects which it may have on the accused and his family, is a real one. This led the House of Lords in Airedale NHS Trust v Bland [1993] AC 789 on grounds of public policy to decide that the courts should, by declaration, provide to doctors faced with such decisions clear rulings as to whether the course which they propose to adopt was or was not lawful. In my opinion the medical profession in Scotland are entitled to look to the courts of this country to perform the same function. This view has the support of the Scottish Law Commission in its Report on Incapable Adults (Scot Law Comm No 151) para 5.86. The question for us is how we can best do this consistently with the principles of our own law.

The pursuers in bringing the matter before this court in the form of an action of declarator have followed the advice of the Scottish Law Commission in para 5.86 and recommendation 77 of its report. This paragraph and the recommendation are in these terms: ‘In exceptional cases, for example, where there is a dispute as to whether treatment should be withheld or withdrawn, or where there is a particularly delicate situation in which the medical team involved feel that an authoritative decision on the legal position is needed before irreversible action is taken, the courts may have to be asked for a declarator. In such cases the Court of Session rather than the sheriff courts would be an appropriate forum. The application should have to be intimated to the Lord Advocate who would then have an opportunity to appear representing the public interest. We recommend that: ‘77. (1) in difficult and exceptional cases resort to the Court of Session for a declarator whether a withholding or withdrawing of medical treatment from an incapable adult was or would be lawful or unlawful. (2) Any person claiming an interest in the incapable adult's welfare should be entitled to apply for a declarator and the application should have to be intimated to the Lord Advocate for the public interest.’

As has already been noted, the terms of the proposed declarator follow the terms of the declaration in Airedale NHS Trust v Bland [1993] AC 789. They also follow the terms of the form of relief which has been recommended for England and Wales in his Practice Note of March 1994 by the Official Solicitor [1994] 2 All ER 413. Nevertheless important questions were raised by the Lord Advocate in his submission to the Lord Ordinary as to whether this was a competent remedy under the law of Scotland, having regard to the terms of the proposed declarator, and in any event as to whether the remedy was appropriate.

The objections which have been raised to the proposed declarator are the following. First, it is said that it is unnecessary because the Court of Session retains a jurisdiction on behalf of the Sovereign as parens patriae to authorise treatment or the withdrawal of treatment on behalf of a person who is incapable of giving authority, and that the existence of this alternative remedy makes the granting of a declarator inappropriate. Secondly, it is said that the declarator which is sought lacks a contradictor and that for this reason it is not competent for the court to pronounce it. Thirdly, it is said that the terms of the proposed declarator are too wide in respect that it invites the court to issue a declaration as to whether or not the proposed conduct is a crime, as this would amount to an intrusion by the Court of Session into the field of criminal law which is the exclusive province of the High Court of Justiciary.

I wish to leave over to a later section of this opinion the question whether the parens patriae jurisdiction is available to this court to enable the withdrawal of treatment to the patient to be authorised. It is sufficient at this stage to say that I do not think that it would be right, in the special circumstances of this case, for us to withhold the remedy of declarator from the pursuers on the sole ground that they would have been able to achieve the same result by the means of the other remedy. It is at the discretion of the court whether or not to grant a declarator, and in the ordinary case it will decline to do so if there is some other more appropriate remedy. But if we were to instruct the Lord Ordinary to withhold a declarator in this case that would be an end of the pursuers' action, as the only conclusion is one for a bare declarator. That would mean that the pursuers would have to raise new proceedings by means of a petition to this court. It seems to me that it would be unreasonable for us to force the pursuers, at this stage in the proceedings after evidence has been led, to incur the delay and expense which that would involve. It cannot be said that the pursuers were irresponsible in their choice of remedy. They followed the course recommended by the Scottish Law Commission and they no doubt did this after taking the best advice that was available. It would be enough to settle practice for the future for us to indicate that from now on these applications should be made by petition to the parens patriaejurisdiction of the court. I would wish to preserve the present action by advising the Lord Ordinary that it was appropriate for him to grant a declarator, assuming that the other conditions for its competency are satisfied.

The second objection is a more formidable one. It is well settled that where an action is raised with declaratory conclusions only it must be in regard to some right which will benefit the pursuer which is disputed or which is doubtful, the granting of which will therefore have some legal consequence: Maclaren, Court of Session Practice, p 647. In Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd at p 448, Lord Dunedin said: ‘The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarised thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.’

In Macnaughton v Macnaughton's Trustees at p 392, Lord Justice-Clerk Thomson said: ‘Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case. I doubt whether any good purpose is to be served by trying to extract any general rule from the decided cases.’

In the present case there is no live controversy between the pursuers and any other party about the legal consequences of the withdrawal of treatment. None of the relatives are now opposed to this, and there are no averments to suggest that an action of damages for breach of duty is to be anticipated if the treatment is withdrawn and the patient's life is thereby terminated. If there had been such a controversy, a declarator would have been the obvious remedy: see Unigate Foods Ltd v Scottish Milk Marketing Board per Lord Fraser of Tullybelton at p 110. For reasons which I shall discuss more fully in the following paragraphs, the threat of a criminal sanction cannot justify the raising of an action in the civil court for a declarator that the proposed course of action is not criminal.

That all having been said however I think that, in the circumstances of this case, we should advise the Lord Ordinary that it is competent for him to grant a declarator. The purpose of the declarator would be to give guidance and reassurance to the pursuers and to the patient's medical practitioner about the legal consequences of terminating the life sustaining treatment, in so far as it is competent for such guidance to be given by this court. There is no doubt that there is a live practical issue for them in this case, because it has been made clear that without that guidance and reassurance they will not feel able to discontinue the treatment. The risks to which they would be exposed if they were to act without that guidance and reassurance are too great. They have not been diminished by the fact that the curator ad litem to Mrs Johnstone has expressed the view in his affidavit that it is in the patient's best interests that her treatment and care should be continued and not discontinued as proposed.

There remains the third objection, which relates to the question whether it is competent for the Court of Session to declare that a proposed course of action is or is not criminal. The proposed declarator does not use the words ‘crime’ or ‘criminal’. What it seeks is a declarator that the pursuers and the medical practitioner ‘may lawfully discontinue’ the treatment. But the word ‘lawful’ without qualification implies an assertion that the conduct is not only not a breach of duty according to the civil law but that it is also not a crime known to the law of Scotland. In Airedale NHS Trust v Bland [1993] AC 789 the House of Lords approved of a declaration in these terms after considering among other things whether the proposed discontinuance of the treatment was unlawful because it would constitute a criminal offence. Sir Stephen Brown P at p 805, in the Family Division, said that he did not consider it appropriate to make any declaration with regard to any possible consequences so far as the criminal law was concerned. In the context of his opinion the declaration that the course proposed was lawful meant that it was lawful according to the civil law. But the argument for the Official Solicitor in the Court of Appeal and in the House of Lords put in issue the question whether the proposed conduct, which would inevitably cause and was intended to cause the patient's death, was unlawful because it was criminal. Lord Goff of Chieveley at p 862G and Lord Mustill at pp 888E–889E expressed strong reservations about the granting of a declarator as to criminality in a civil case. Lord Mustill pointed out that the decision in that case would in any event not create an estoppel in the criminal courts which would form a conclusive bar to future prosecution. Nevertheless they did proceed to decide the issue, and it is clear from all the speeches that their Lordships were of the view that the conduct which was proposed would not amount to a crime according to the law of England.

At first sight there is some merit in the proposal that we should follow the guidance of the House of Lords in this matter and authorise the Lord Ordinary to make a declaration about the criminality or otherwise of the proposed conduct as well as its civil law consequences. From a practical point of view the two issues are closely related to each other. It may indeed be possible to find a single route to the answer to both questions, as the House of Lords appears to have done in that case. It is not clear that there is any useful purpose to be served in separating out the two issues, on the view that while a declarator can be given about the civil law in this process it is beyond the jurisdiction of this court to say whether the proposed course of conduct is or is not criminal. Nevertheless I consider that it is not open to this court to assert that a proposed course of conduct is or is not criminal by means of a bare declarator. If it is necessary for the court to resolve this issue in order to decide whether or not a party to the action is entitled to some other civil remedy, then this will be within its competence. The decision about the criminality of the conduct can then be said to be ancillary to the provision of a remedy which it is within the power of this court to provide. But a bare declarator that a course of conduct, or a proposed course of conduct, is or is not criminal is in a different position. The only purpose to be served by such a declarator would be in regard to the operation of the criminal law, which lies beyond the jurisdiction of this court.

We were referred to a number of authorities on this issue, although I think that some of them are readily distinguishable. In Lockhart v Presbytery of Deer a minister who had been deposed by the General Assembly of the Church of Scotland on the ground of immoral conduct presented a note of suspension against the decision being carried into effect. The Court of Session held that this was a pure question of ecclesiastical discipline, and that it had no jurisdiction to sit as a court of review over the Church Courts in ecclesiastical matters. It is equally clear, even without the benefit of section 262 of the Criminal Procedure (Scotland) Act 1975 in regard to appeals under the solemn procedure, that the Court of Session cannot sit as a court of view over decisions of the High Court of Justiciary. But this does not resolve the question whether the Court of Session can make a pronouncement about what is or is not criminal at the preliminary stage before proceedings have been brought in the criminal courts. Similarly Menzies v McKenna in which it was held that a question of propinquity alone was a matter for the Sheriff of Chancery, is not exactly in point in this case. Lord Salvesen said at p 276 that this court is not in the habit of granting decrees in order simply that they may be evidence in some other court or tribunal. He did not think that there was any instance in which the Court of Session had investigated a disputed question of fact, not with a view of their decree being operative but with a view of aiding the person in whose favour the decision was sought to maintain a claim elsewhere. In my opinion however the declarator which the pursuers seek is not open to that particular objection, as there is no disputed question of fact in this case. On the other hand, if the Court of Session were to grant its authority to the proposed conduct, that would plainly be relevant to the question whether the conduct was or was not criminal if a prosecution were then to be brought in a criminal court.

Other more recent cases fall into a well defined group, by which it has been recognised that the Court of Session and the High Court of Justiciary do not exercise a concurrent jurisdiction but that they have exclusive jurisdiction in regard to all matters falling within their own spheres. Thus the High Court of Justiciary has exclusive jurisdiction in the exercise of the nobile officium in relation to matters which can properly be described as criminal business, while exclusive jurisdiction in the exercise of the nobile officium in all civil matters lies with the Court of Session: Cordiner Petitioner, per Lord Justice General Emslie at p 18; Newland Petitioner, per the Lord Justice-General at p 589I–J. Reynolds v Christie, in which it was held that an application for judicial review in the Court of Session in regard to the refusal of criminal legal aid was incompetent, is a further illustration of the same principle.

The Lord Advocate founded strongly on these cases as authority for the view that it is not open to the Court of Session to issue a declarator as to the criminality of the proposed conduct. But I am not persuaded that they provide a complete answer to the point which has been raised in this case. We are not being asked to intervene in criminal proceedings which have already been instituted or to interfere in some other way in the business which is being conducted in the High Court of Justiciary. What we are being asked to do is to authorise the Lord Ordinary to issue a declarator as to the criminality of the proposed conduct, in the knowledge that this will not bar proceedings in that court but in the hope that it will in practice ensure that no prosecution will be taken there.

Nevertheless I am clearly of the opinion that it would be undesirable for the Court of Session to attempt to define what does or does not amount to criminal conduct unless this is essential in order to decide an issue which a party has an interest to raise in this court. There are strong reasons of policy for leaving the definition of what amounts to criminal conduct to the criminal courts. Any declaration which we might make would not be binding on the High Court of Justiciary. Nor would any declarator which we might authorise be binding on the Lord Advocate, who would be entitled in the public interest irrespective of what we might say to bring the matter before the criminal courts, to which the issue clearly belongs because the function of the criminal law is to regulate conduct by the imposition of criminal sanctions. A further point which ought not to be overlooked is that, while an appeal lies to the House of Lords from the Court of Session, the High Court of Justiciary is the Supreme Court of Criminal Jurisdiction in Scotland from whose decisions no appeal to the House of Lords is competent. In Mackintosh v Lord Advocate it was held that it would be contrary to the provisions of art 19 of the Act of Union 1707 for decisions of the High Court of Justiciary to be held to be other than final and conclusive in that court. In my opinion we should leave it to the High Court of Justiciary to define what conduct is or is not criminal under the law of Scotland. It is not for the Court of Session to explore questions relating to the scope of the criminal law which have not already been established by decision in the High Court of Justiciary.

For these reasons, while I consider that the Lord Ordinary may properly grant a declarator in this case, the terms of the proposed declarator will require to be amended to make it clear that the declaration is given in regard only to the civil law consequences of the proposed conduct. Some other solution must be found as to how the reassurance in regard to the criminal consequences of that conduct can be given to the pursuers and the medical practitioner.

It is clear from several of the speeches in Airedale NHS Trust v Bland [1993] AC 789 that, had it not been for the fact that the parens patriae jurisdiction over adults who are mentally incompetent has been abolished, the House of Lords would have seen the exercise of that jurisdiction as the more appropriate remedy. The question whether the parens patriae jurisdiction is still available in England and Wales was considered in In Re F (Mental Patient: Sterilisation). Lord Brandon of Oakbrook observed at p 57D–H that this was an ancient prerogative jurisdiction of the Crown which could be traced back as far perhaps as the 13th century. Under that jurisdiction the Crown as parens patriae had both the power and the duty to protect the persons and property of those who were unable to do so for themselves. This category included both minors and persons of unsound mind. The jurisdiction so far as related to minors survives in England and Wales in the form of the wardship jurisdiction of the Family Division of the High Court. But the jurisdiction relating to persons of unsound mind ceased to exist as a result of the coming into force for the Mental Health Act 1959 and the revocation by Warrant under the Sign Manual of the Warrant dated 10 April 1956, by which the jurisdiction of the Crown over the persons and property of those found to be of unsound mind had been assigned to the Lord Chancellor and the Judges of the Chancery Division of the High Court. In the result the courts in England and Wales have been left only with the statutory jurisdiction over the property of persons of unsound mind which was first conferred by the 1959 Act. In Airedale NHS Trust v Bland [1993] AC 789 Lord Goff of Chieveley at p 862D–F, Lord Lowry at p 875C and Lord Browne-Wilkinson at p 883D–E all expressed regret that this jurisdiction no longer existed. It was only because of the absence of this jurisdiction that they expressed their support for recourse to the inherent jurisdiction of the High Court to make a declaration that the proposed discontinuance of treatment was in the patient's best interests. As Lord Browne-Wilkinson put it at p 883E: ‘Faced with this lacuna in the law, this House in In re F developed and laid down a principle, based on concepts of necessity, under which a doctor can lawfully treat a patient who cannot consent to such treatment if it is in the best interests of the patient to receive such treatment. In my view, the correct answer to the present case depends on the extent of the right to continue lawfully to invade the bodily integrity of Anthony Bland without his consent. If in the circumstances they have no right to continue artificial feeding, they cannot be in breach of any duty by ceasing to provide such feeding.’

This aspect of the decision in Airedale NHS Trust v Bland [1993] AC 789 is of particular interest in the present case in view of the objections which have been raised to the proposed declarator. The measures which led to the abolition of the parens patriaejurisdiction in England and Wales plainly do not extend to Scotland. So it is necessary to consider whether a similar jurisdiction was enjoyed by the Crown in Scotland, and if so whether it still exists and how and within what limits it may still be exercised.

Although it has not been the practice in Scotland to describe the jurisdiction as that of parens patriae, it is clear that the law of Scotland has from an early stage recognised that the Sovereign, as pater patriae, is the natural and legal guardian of children under full age and of the insane: Fraser on Parent and Child, 3rd edn, p 651 under reference to Craig's Ius Feudale (1603) II xx 8 and Balfour's Practicks (1583) p 254, c 19. Stair, I vi 11, states: ‘Where there is no tutor nominate, nor the tutor of law claimeth right within the year, there is place for a tutor dative; which, though by divers municipal customs may be constitute by the ordinary magistrate of the place, yet is most fitly constitute by the supreme magistrate; and so with us is given by the king in exchequer.’

Erskine, I vii 8, is to the same effect: ‘In default of tutors-legitim there is place for tutors-dative; who were by the Roman law named by the magistrate, but with us by the King alone, as pater patriae, in his Court of Exchequer.’

By sec 1 of the Exchequer Court (Scotland) Act 1856 the jurisdiction which had previously been vested in the Court of Exchequer was transferred to this Court. That section is in these terms: ‘The whole Power, Authority and Jurisdiction at present belonging to the Court of Exchequer in Scotland, as at present constituted, shall be transferred to and vested in the Court of Session and the Court of Session shall be also the Court of Exchequer in Scotland.’

In terms of its long title the 1856 Act was enacted to constitute the Court of Session as the Court of Exchequer in Scotland and to regulate procedure in matters connected with the Exchequer. Among the procedural provisions of that Act was sec 19, by which it was provided that the duties of the Court of Exchequer in regard to the appointment of tutors-dative were to be performed by the Inner House. Section 19 of the 1856 Act was repealed by Sched 2 of the Court of Session Act 1988 and it was not re-enacted.

Doubts have been expressed as to the effect of the repeal of that section on the procedure for the appointment of a tutor-dative to an incapax. The principal author of Green's Annotated Rules of the Court of Session, Nigel Morrison QC, states in para 48.1.1 that, although the appointment of tutors-dative to adults who are mentally incapax has been noted in two articles in the Scots Law Times referring to a number of recent unreported cases (see Revival of Tutors-dative1987 SLT (News) 69, and Tutors to Adults: Developments, 1992 SLT (News) 325), such an appointment is not competent. However I agree with Lord Cullen that such applications are still competent notwithstanding the repeal of sec 19. In the most recent example of these applications which was drawn to our attention, L Petitioner, Lord MacLean appointed a tutor-dative to a 33-year-old woman who suffers from autism and gave power to the tutor to consent to any health care that was in her best interests including consent to her surgical sterilisation. Although that application was opposed, no issue was raised about its competency. In my opinion, while the repeal of sec 19 of the 1856 Act has left a gap in our procedure, that was a procedural provision only. The jurisdiction to make the appointment and to exercise the parens patriaejurisdiction formerly vested in the Sovereign through the Exchequer remains available to this court, as sec 1 of the 1856 Act has not been repealed.

In practice the procedure for the appointment of tutors-dative has been largely superseded by the power of the court to appoint a factor loco tutoris under a petition to the Outer House. Provision for the appointment of judicial factors is made by the Rules of Court: see rule 14.2(2) of the Rules of Court of Session 1994. The origin of that jurisdiction, which exists to protect the property of persons who are incapable of managing their own affairs, is said by Irons on Judicial Factors (1908) to lie in the nobile officiumof the Court of Session. It appears to have developed alongside, and largely in substitution for, the parens patriae jurisdiction of the Court of Session as the Court of Exchequer in Scotland: seeBryce v Grahame per Lord Cringletie at pp 433–434. Fraser on Parent and Child at p 670 noted the anomalous result of the various statutes as being that, while an application for the appointment of tutors-dative had still to be present in the Inner House acting as the Court of Exchequer, all incidental applications relating thereto had to be presented to the junior Lord Ordinary who, as such, had nothing whatever to do with the Court of Exchequer. Unlike the parens patriae jurisdiction however the jurisdiction to appoint a judicial factor has not been extended to providing for the care of the person, as opposed to the property, of those who are in minority or of unsound mind.

In Wilkinson and Norrie, Parent and Child (1993) at p 182 it is noted that the question of the extent of the parental power in relation to medical treatment of a child has scarcely arisen in Scotland so far as reported decisions reveal. Their observation at p 188 that the control of parental power is based on the nobile officium of the Court of Session which acts as parens patriae as does the High Court in England in its wardship jurisdiction, and that it is in principle no less extensive, may be taken to be an accurate statement so far as jurisdiction over minors is concerned, subject to the point that in my opinion the origin of the tutory jurisdiction lies in the power of the Sovereign as parens patriae rather than in the residual power of the Court in the exercise of the nobile officium. But the important point for present purposes is that it exists in Scotland not only in regard to minors but also in regard to adult persons of unsound mind. In my opinion the jurisdiction is available to be exercised in the present case, because Mrs Johnstone, who suffers from an absolute incapacity, is plainly incapable of taking any decisions in her own interest in her relation to her person and her property.

In the present case however we are not being asked to appoint a tutor-dative. The submission of the Lord Advocate is that we have power in the exercise of the parens patriae jurisdiction to authorise the Lord Ordinary to grant authority to the pursuers and the medical practitioner for the treatment to be discontinued. He made it clear that, if authority were to be given, he would not wish to challenge any steps taken within the scope of that authority. He undertook to make a statement on his policy as to whether or not to prosecute as soon as possible after our decision in this case had been intimated. He said that our approval of a procedure whereby authority might be sought from and granted by the Court, after consideration of all relevant interests, would enable him to formalise a statement of policy on this matter to which those involved in these cases could have regard in deciding whether or not to seek authorisation.

We were not referred to any Scottish case in which the parens patriae jurisdiction has been exercised in this way. But this does not mean that the jurisdiction must be regarded as incapable of meeting the demands of this case, and I agree with Lord Clyde that to proceed by way of authorisation has distinct advantages over a process of declarator. The appointment of a tutor-dative is clearly appropriate where there are continuing functions to be performed. Where the incapax is in need of treatment to preserve life or for the carrying out of surgical procedures which are in his or her best interests, the preferable course will be to appoint a tutor-dative with the powers necessary to enable these purposes to be carried out. But in this case, if the authority is granted, there will be no continuing duties to perform. The whole point of the application to this Court is to obtain authority for the discontinuing of treatment which will inevitably bring the patient's life to an end. It seems to me that the appointment of a tutor-dative is unnecessary in these circumstances, and that the logical and correct course for the Court to take is to grant its own authority to the medical practitioner for the taking of the steps which will have this effect.

There is no reason to think that the jurisdiction of the Sovereign as pater patriae in Scotland differed in its scope from that enjoyed by the Sovereign in England in previous centuries. Some guidance as to the scope of the jurisdiction is to be found in the opinion of La Forest J in the Canadian case of E (Mrs) v Eve (1986) 2 SCR 388. That was a case which was concerned with the question whether consent should be given for the non-therapeutic sterilisation of a person who was mentally incompetent. In the course of his opinion, which was aptly described by Lord Oliver of Aylmerton in In re B (a Minor) (Wardship Sterilisation) at p 211H as an extremely instructive judgment, La Forest J said at p 410 that the Crown has an inherent jurisdiction to do what is for the benefit of the incompetent, and that its limits or scope have not, and cannot, be defined. In a case in the Irish Supreme Court, In the Matter of a Ward of Court, that court upheld an order of a judge of a High Court in the exercise of the parens patriae jurisdiction, exercised by the Lord Chancellors of Ireland prior to 1922 and now vested in the President of the High Court, to give consent on behalf of a ward, who was in a condition close to a persistent vegetative state after sustaining brain damage, to the withdrawal and termination of abnormal and artificial means of nourishment. As she was a ward of court, responsibility for the exercise and vindication of her constitutional rights rested on the Judge assigned in that behalf by the President of the High Court. It is not our practice to make persons who are of unsound mind wards of court. But there seems to be no reason in principle why the Court of Session should not, in the exercise of a similar function as the Court of Exchequer in Scotland, decide what is for the benefit of persons who are in that state and thus incapable of taking decisions for themselves. Authorisation in the exercise of that jurisdiction will have the same effect in law as if consent had been given by the patient.

There is almost no guidance in the Scottish authorities, such as they are, relating to the exercise of the parens patriaejurisdiction with regard to the test to be applied in deciding whether or not a course of conduct should be authorised. But in In re B (a Minor) (Wardship: Sterilisation) it was held that a court exercising the wardship jurisdiction in England was concerned only with one primary and paramount consideration, namely the welfare and best interests of the ward. The application in that case was to authorise an operation for the sterilisation of the ward, and their Lordships were at pains to emphasise that the true and only issue was what was in the ward's best interests. Lord Oliver of Aylmerton said at p 212C–D: ‘…I desire to emphasise once again that this case is not about sterilisation for social purposes: it is not about eugenics; it is not about the convenience of those whose task is to care for the ward or the anxieties of her family; and it involves no general principle of public policy. It is about what is in the best interests of this unfortunate young woman and how best she can be given the protection which is essential to her future wellbeing so that she may lead as full a life as her intellectual capacity allows. That is and must be the paramount consideration....’

As the wardship jurisdiction is, in modern form, the exercise of the parens patriae jurisdiction formally vested in the Sovereign I think that we can accept the same test as appropriate for the jurisdiction which this court is entitled to exercise. The matter does not end there, however, because subsequent cases in the English courts have shown that the same test is being adopted where the parens patriae jurisdiction is not now available and the court is being asked instead to exercise its inherent jurisdiction to make a declaration about the lawfulness of the proposed conduct. In In re F (Mental Patient: Sterilisation), Lord Brandon of Oakbrook said at p 64C–D: ‘The substantive law is that a proposed operation is lawful if it is in the best interests of the patient, and unlawful if it is not. What is required from the court, therefore, is not an order giving approval to the operation, so as to make lawful that which would otherwise be unlawful. What is required from a court is rather an order which establishes by judicial process…whether the proposed operation is in the best interests of the patient and therefore lawful, or not in the patient's best interests and therefore unlawful.’

In Airedale NHS Trust v Bland [1993] AC 789 Lord Goff of Chieveley at pp 866H–867A, Lord Browne-Wilkinson at p883H and Lord Mustill at p897E and H accepted the best interests test as the test, or as Lord Goff put it ‘the fundamental principle’, which they had to apply. The same test was applied by the Court of Appeal in Frenchay Healthcare NHS Trust v S, where a declaration was made that it was lawful to refrain from the surgical intervention which was necessary to replace a gastrotomy tube to feed a patient who was in a persistent vegetative stage with no hope of recovery. In the Irish courts the test is the same where in wardship proceedings the parens patriae jurisdiction is being exercised. In In the Matter of a Ward of Court Hamilton CJ said at p 429 that in the exercise of this jurisdiction the first and paramount consideration is the well-being or interests of the ward, and he added that in considering the issue whether it was in the best interests of the ward that her life should be preserved by continuing the particular medical treatment which she was receiving the judge had adopted the proper test.

In L Petitioner, Lord MacLean said that he was of opinion that the question whether it was in the best interests of the ward was the correct test to be applied in that case, where the ward's surgical sterilisation was being proposed. In my opinion we should approve of the application of that test in such cases, where the issue is whether a tutor-dative should be authorised to consent to medical treatment of the ward. And I believe that we should also hold that it is the test which must be applied by the court when deciding whether or not to authorise the withholding of treatment in cases such as the present where that treatment is necessary if life is to continue. It would be unsatisfactory if the court were to be required, in the exercise of this jurisdiction, to apply different tests according to the circumstances of each case. It would be difficult to identify the borderline between those cases where one test was appropriate and those where another test had to be applied. The better course is to recognise that all these cases require to be decided by reference to the same fundamental principle.

In my opinion however it is necessary to give further guidance to the Lord Ordinary as to how this broad test is to be applied to the facts of the present case. The question for him is whether he should grant a declarator as to the civil law consequences of the proposed conduct—this will be unnecessary in future cases—and whether, in the exercise of the power which we shall give to him in the exercise of the parens patriae jurisdiction, he should authorise what is proposed to be done. The test is the same in regard to both branches of this question. He cannot take one step without taking the other, nor can he refrain from granting the declarator without deciding also not to authorise. For reasons of procedure it is necessary for him to deal in this particular case with the question in both of its branches. But the issue is in the end a single and indivisible one, as to whether it is in the patient's best interests that her life should be prolonged by the continuance of the life sustaining and medical treatment which she currently receives.

It seems to me that on the facts of this case as established by the evidence to the satisfaction of the Lord Ordinary, there can almost certainly be only one answer to this question. I say almost certainly because Mr McEachran for the curator ad litem said that he still wished to present argument to the Lord Ordinary on the curator's behalf that it was in the ward's best interests that this treatment should continue. I am bound to say however that I find it very hard to see what room is left for further argument on this point. As Lord Oliver of Aylmerton went to such lengths in In re B (a Minor) (Wardship: Sterilisation) at p 112B–D to emphasise, the sole and paramount consideration for the exercise of the jurisdiction in these cases is the welfare and benefit of the patient. In E (Mrs) v Eve La Forest J said at p 427 that the discretion is to be exercised for the benefit of that person, not for the benefit of others.

The question is whether the continuance of the treatment can be of any benefit to the patient in view of the condition which she has now reached. If it is possible to say that it can be of any benefit to her, then no doubt there is a balancing exercise to be done in order to assess whether it is in her best interests that the treatment should be discontinued. But if it cannot be of any benefit to her—and it is her benefit alone which must be considered in order to decide how the jurisdiction is to be exercised in the light of the medical evidence—then there are no longer any best interests to be served by continuing it. I agree with Lord Milligan that this is to view the question of best interests negatively. But in my opinion the test can properly be applied in this way in the light of the medical evidence in this case.

In my opinion it is legitimate to return to Airedale NHS Trust v Bland [1993] AC 789 at this point. I can see no relevant distinction between the way in which the underlying principle was applied in that case and the question which has to be decided here in the case of Mrs Johnstone. Lord Keith of Kinkel observed at p 857E that the object of medical treatment and care is to benefit the patient, and at p 859A that existence in a vegetative state with no prospect of recovery is by a large body of informed and responsible medical opinion regarded as not being a benefit. He pointed out that the existence of this body of opinion at least formed a proper basis for the decision to discontinue treatment and care according to the principles discussed in Bolam v Friern Hospital Management Committee. Having noted at p 858D that it was perhaps permissible to say that to an individual with no cognitive capacity whatever, and with no prospect of ever recovering any such capacity in this world, it must be a matter of complete indifference whether he lives or dies, he considered whether the principle of sanctity of life required that the treatment should be continued. He then went on to say this at p 859D–E: ‘In my opinion it does no violence to the principle to hold that it is lawful to cease to give medical treatment and care to a PVS patient who has been in that stage for over three years, considering that to do so involves invasive manipulation of the patient's body to which he has not consented and which confers no benefit upon him. Although this case falls to be decided by the law of England, it is of some comfort to observe that in other common law jurisdictions, particularly in the United States where there are many cases on the subject, the courts have with near unanimity concluded that it is not unlawful to discontinue medical care and treatment, including artificial feeding, of PVS patients and others in similar conditions.’

I find the reasoning in Lord Keith's speech to be compelling, as I do the passage in the speech of Lord Goff of Chieveley at p 869B–D where he deals with this issue. He noted at p 868D that, if the question is asked whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment and care that question could sensibly be answered to the effect that his best interests no longer require that it should be. He went on to say at p 869B that in this class of case there is in reality no weighing operation to be performed. At p 869E he said that in the end it was the futility of that treatment which justified its termination. Lord Mustill was, I think, saying the same thing at p 898D–E when, after observing at p 897E that the distressing truth was that bringing his life to an end was not in the best interests of the patient for he had no best interests of any kind, he said that the patient had no further interest in being kept alive so the justification for the continuation of his care and treatment had also gone.

For the reasons which I have set out in this opinion I now invite your Lordships to make the following rulings in response to the request which has been made to us by the Lord Ordinary:

1. 1. It is competent to apply to the parens patriae jurisdiction of the Court of Session for authority to discontinue treatment for patients in a persistent vegetative state, as that jurisdiction which was transferred to and vested in the Court of Session by sec 1 of the Exchequer Court (Scotland) Act 1856 was not abolished by the repeal of sec 19 of that Act by the Court of Session Act 1988.

2. 2. Although applications to the parens patriae jurisdiction of the Court of Session should normally be made by petition and these petitions should, in the absence of any practice direction or rule of court to the contrary, be dealt with as petitions to the Inner House, the Lord Ordinary is hereby authorised in this case to exercise that jurisdiction on behalf of the Court.

3. 3. Although an action of declarator will be inappropriate in all future cases where the parens patriae jurisdiction of the Court of Session is available to be exercised, it is competent for the Lord Ordinary to pronounce a declarator about the consequences of the proposed conduct in this case in the light of its special circumstances.

4. 4. Any such declarator must however be confined to the civil law consequences of the proposed conduct, so it would not be competent for the Lord Ordinary to pronounce a declarator in the terms sought by the pursuers unless the conclusion is amended to this effect.

The Lord Ordinary has also invited us to give a ruling as to whether more general guidance should be given as to the form which such an action should take in the future, the parties to it and the necessary evidence to be adduced before any declarator is pronounced. I agree that this is desirable, although I wish to emphasise that nothing in this opinion is intended to suggest that an application must be made to the court in every case where it is intended to withdraw treatment. The decision as to whether an application is necessary must rest in each case with those who will be responsible for carrying that intention into effect, having regard in particular to the views of the patient's relatives and any statements of policy which may, in the light of this case, be issued by the Lord Advocate.

It will be understood from the rulings set out above that in future all such applications should be made by petition for the exercise of the parens patriae jurisdiction of the court, and not by means of an action of declarator. It may be necessary for the procedure to be followed in such cases, as well as the procedure in applications for the appointment of a tutor-dative to persons who are mentally incapax, to be regulated by rules of court in the light of experience. Arrangements for the preparation and promulgation of amendments to the existing rules by Act of Sederunt will be put in hand when this is appropriate. For the present the following statement of practice is made for the guidance of all parties as to how proceedings relating to patients who are in a persistent vegetative state should be conducted:

1. (a) All such applications should be made by petition presented to the Outer House in the same way as if they were applications to which rule 14.2 of the Rules of Court of Session 1994 apply.

2. (b) The application may be presented by the area health authority or NHS trust in whose care the patient is for the time being, or by any relative of the patient within the meaning of Schedule 1 of the Damages (Scotland) Act 1976.

3. (c) The application should be for the court to authorise the treatment or the withdrawal of treatment from the patient as the case may be.

4. (d) The proposed treatment or withdrawal of treatment should be specified in a statement of facts and in the prayer setting out the order which is being sought.

5. (e) The petition should be served on the Lord Advocate for the public interest, and it should also be served on the relevant area health authority or NHS trust and on the relatives of the patient unless these parties are already petitioners.

6. (f) There should be lodged with the petition as productions at least two medical reports on the patient's condition, describing the treatment which it is proposed to carry out or to discontinue and, if treatment is to be discontinued, the steps which will be taken to allow the patient to die peacefully and with dignity.

7. (g) In view of the advice given in the BMA Guidelines on Treatment Decisions for Patients in Persistent Vegetative State (July 1993) that life-prolonging treatment should continue until the patient has been insentient for at least 12 months, the statement of facts should include a narrative as to when the persistent vegetative state was first diagnosed and for how long life-prolonging treatment has been continued since that date.

8. (h) If the views of the patient about the giving of treatment or the discontinuing of treatment have previously been expressed in writing or otherwise, the statement of facts should include averments about the views which the patient has expressed.

9. (i) The court should be asked, in the prayer of the petition, to appoint a curator ad litem to the patient so that the application may be considered separately on behalf of the patient and the curator's views made known to the court after such inquiry as the curator may consider appropriate in the circumstances.

10. (j) Intimation on the Walls will be dispensed with and any proof or other hearing will be conducted in chambers, unless the public interest otherwise requires.

In my opinion this case should now be returned to the Lord Ordinary instructing him to put the case out by order for a discussion as to further procedure in the light of the rulings which we have given.

LORD CLYDE —This case has been reported to this court for certain rulings. The facts which the Lord Ordinary has set out in his note are not in dispute. The patient is in a persistent vegetative state and has been so for some four years. She is wholly unconscious and unaware of her surroundings. She is dependent wholly upon artificial feeding for the continued sustaining of her life. There is no prospect of any improvement in her present condition. If the nutrition and hydration which she presently receives were to be withdrawn along with the medication which she receives and which serves to control any deterioration in her condition her life would come painlessly to an end in 10 to 14 days.

The action has been raised by the Hospital Trust which has the care of the patient. The Trust seeks a declarator to the effect that all life sustaining treatment and medical treatment designed to keep the patient alive in her existing persistent vegetative state may lawfully be discontinued and that thereafter no such treatment need be provided to her except for the sole purpose of allowing her to die peacefully with dignity and with the least distress. In seeking a declarator that the treatment may be lawfully discontinued the pursuers mean to cover both the civil and the criminal law. They seek confirmation that the course proposed would not be a delict so as to give rise to a claim for damages and would not be a crime so as to give rise to a criminal prosecution.

The issue whether the termination of treatment would be lawful under the criminal and civil law was canvassed before us by counsel for the pursuers but neither the submission by the sixth defender nor that by the Lord Advocate, the first defender, provided a direct negative to that submission. The defenders were content neither to admit nor deny the substance of the proposition for which the pursuers contend and which forms the substance of their declarator. The absence of any counter for the argument, particularly on the criminal aspect of the problem, gives rise immediately to a question whether any concluded view on the point may properly be given. In the event the greater part of the submissions before us was related to matters of procedure and the most substantial point of conflict was on the competency of a civil court to grant a declarator that particular conduct was not unlawful within the context of the criminal law.

Counsel for the pursuers before us argued that the termination of the life sustaining treatment would not constitute a delict or a crime. She founded on the decision in Airedale NHS Trust and Bland. I find the reasoning in that case wholly persuasive. The present is a situation where medical opinion clearly indicates that no benefit would be achieved by continuing the treatment. It is no part of the duty on the doctors who have charge of her to continue a treatment which serves no purpose beyond the artificial prolongation of existence. They would be in no breach of their general duty of care to her to discontinue such treatment in such circumstances and the substance of their continuing duty would be towards securing her comfort and dignity for the concluding days of her life. It is important to note that in the present case it has been found in fact that there is no prospect of any improvement in her present condition. If that was not the situation more delicate issues could well arise.

So far as the other aspect of the lawfulness of the proposed step is concerned I should prefer to reserve my opinion. It may well be that the distinction between a positive intervention which cases death and the omission or discontinuance of an act which would have prevented death may provide a sufficient solution but I find greater strength in the submission that if there is in the circumstances no longer a duty to continue with a system of life support there would be no crime committed by the discontinuance of that system. Furthermore in Finlayson v Lord Advocate it was recognised that the discontinuance of a life support system did not constitute an unwarrantable or unreasonable act such as to break the chain of causation between the originating injury and the death. The pursuers do not lack strong arguments on this aspect of the case.

But this brings me to consider the competency of the form of action selected by the pursuers in the present case. The action of declarator is of considerable antiquity and has remained a valuable and useful part of our practice for several centuries. It has been noted for its elasticity and was the admiration and envy of Lord Brougham in Earl of Mansfield v Stewart at 160 at a period when this form of action was far from fully developed in England. Essentially the action is one whereby the pursuer seeks the affirmation of some right without directly requiring any payment or performance by the defender. The right is one which is already in existence for a shorter or longer space of time. The action does not create a right but simply declares its existence. It can be expressed in positive or negative terms. It is in some circumstances competent by means of this action to affirm the rights of one party in the event of a contingency which has not yet occurred. But in those cases there should be a real controversy between the parties interested in the matter and all the parties interested should be involved in the process. But in all cases, including those ones, the one essential is that there should be a live practical issue to be determined. It is well established that the action of declarator cannot be used for declaring legal propositions where there is no practical question involved. Whether there is or is not a live practical issue must be a matter for assessment on the merits of each particular case.

The plea of competency tabled by the first defender was directed at the inclusion in the declarator of the lawfulness of the proposed discontinuance of treatment as matter of the criminal law. Cases can occur in the course of civil litigation where the court is required to consider and pronounce upon conduct which may constitute a breach of a statutory provision which can have penal consequences as well as giving rise to civil remedies. An interdict may be pronounced against conduct which could form the subject of a criminal prosecution. Similarly conduct which may constitute a crime at common law, such as fraud, may come before the civil court for consideration. But in all such cases the determination that the conduct is or is not a breach of the statute or such as might constitute a common law crime is incidental to the action which, in its essence, will be a claim for some form of civil remedy. There is nothing objectionable in the civil court entering upon territory over which the criminal law extends for that purpose.

But the present case is very different. The pursuers are seeking directly a declaration that particular conduct does not constitute a crime for the purpose of the criminal law. Indeed it may be thought from the pleadings and from the fact that the next of kin consent to the proposed discontinuance of treatment that this is the principal purpose of the declarator. I have considerable reservations whether the civil court can properly take such a course. No precedent was cited to us for it. While in past centuries the distinctions between the civil and the criminal jurisdictions were not altogether clearly cut, the present position has come to be more exactly defined. The Court of Session will not entertain a case the jurisdiction over which is vested in another Tribunal and if that other body's jurisdiction is exclusive, even judicial review may not be available (Lockhart v The Presbytery of Deer). The jurisdiction of the Court of Session and of the High Court of Justiciary are now recognised as distinct and separate so that neither will interfere with a process being conducted in the other (petition, Cordiner). Nor will a declarator be granted where the sole object is to obtain a ruling on a disputed matter of fact for the purpose of using it to advance a claim before another Tribunal (Menzies v McKenna). While I am not prepared to affirm absolutely that there might not be some circumstances in which a civil court might competently declare conduct to be lawful in the criminal sense I am absolutely persuaded that it would not be proper to do so in the present case where another remedy is available and indeed is, in any event, preferable. A declarator on the lawfulness of the proposed conduct in terms of the criminal law would of course not be binding on the Lord Advocate or the High Court of Justiciary but 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. The sheriff court might be found to be ruling on cases to which its criminal jurisdiction does not extend. Cases determining a matter of criminal law might be taken to the House of Lords although there is no such appeal from decisions of the High Court of Justiciary. Furthermore the issues in the civil court might well be decided in proceedings to which the Lord Advocate was not a party and it is recognised that even in cases of breach of a civil interdict he ought to be involved (Gribben v Gribben). Proceeding by way of declarator might well run into the incompetency to which I have already referred namely that it would simply be seeking affirmation of a fact for the purpose of supporting a position in an altogether different process.

While I would not allow a declarator in the present case in the terms sought in so far as it extends to the criminal aspects of the matter I would be prepared in the circumstances of this case to see the granting of a declarator covering the entitlement of the pursuers to take the proposed course of procedure as a matter of civil law. The principal point which has concerned me here is the absence of a contradictor to the proposition sought to be declared. The defenders did not present a positive denial to the pursuers' argument that the discontinuance of treatment would be lawful. Counsel for the sixth defender went no further than to say that he was not satisfied that it would be lawful and that there was considerable doubt about it. The declarator would not be competent if it went no further than to declare matters of fact which were not even controversial. But I am prepared to regard the issue of civil liability which has been raised as one of reality, of concern and of practical utility and in the circumstances to accept, in the absence of challenge to its competency in this respect, that a declarator in suitable terms could competently be granted in the present case to affirm the position of the pursuers so far as civil liability is concerned.

The question which the Lord Ordinary asked first of all relates to what was recognised by the pursuers in any event as an alternative process for resolving the issue raised by the present case and which came to be expressed as the preferable course by counsel for the sixth defender and by the Lord Advocate. The matters raised in this context by the Lord Ordinary are whether it is competent to invoke the parens patriae jurisdiction of the court and if so what practice should be followed in the future in applications to that jurisdiction. I have no doubt that such a jurisdiction is possessed by the Court of Session, although the name usually given to it in the past has been pater patriae rather than the title of parens patriae which other countries now appear to use. Undoubtedly that jurisdiction in matters of guardianship descended to the Court of Session through the Court of Exchequer. It was the King in Exchequer who was the pater patriae so far as children under age were concerned (Fraser on Parent and Child 651; Stair's Institutions I vi 11). The appointment of tutors dative to children was a responsibility of the King in Exchequer and then of the Exchequer Court (Erskine Institute I vii 9). The whole jurisdiction of that court passed to the Court of Session by sec 1 of the Court of Session Act 1856. Particular provision was made by sec 19 for the power to appoint tutors dative to be exercised by the Inner House of the Court of Session but I am persuaded that the Lord Advocate was right in arguing that the repeal of that section by the Court of Session Act 1988 did not remove the Court of Session's power to exercise the jurisdiction of the former Exchequer Court which passed to it under sec 1 of the Act of 1856. That section has not been repealed and its continuing effect has to be recognised.

It is also probably correct that the appointment of tutors dative to lunatics and imbeciles and indeed to all helpless persons as well as to children falls under the power of the King as pater patriae. As Lord Cringletie recognised in the case of Bryce v Grahame at 433: ‘The guardianship of all unprotected persons, by reason of weakness of understanding, by extreme youth, natural infirmity of talent, by nature or disease, was formerly vested in the Crown. The King, as pater patriae, was clothed with the authority to do this…’. Reference may also be made in this context to Craig's Jus Feudale II xx 9 and also to the Stair Society edition of the Regiam Majestatem with the accompanying notes to ch 46 in vol 11 of the Stair Society edition p 256.

In the present case the problem is created not by an insanity or lack of age but by an absolute incapacity. If the power of the tutory extends over the person as well as the property of the ward then it should follow that the parental consent to medical treatment and the withdrawal of treatment which a parent would give for a child should also be within this formerly Royal power. If the tutor could be appointed to give such a consent then the King must have had the power to grant the consent direct and accordingly it would appear that an authorisation by the court, exercising the jurisdiction of the King in Exchequer, should be effective to render lawful what might otherwise be unlawful by providing the consent which the ward cannot give. There is no purpose to be served in a case like the present in appointing a tutor dative with a power to consent.

If the power to authorise was not to be traced to an origin in the power of the King as pater patriae in Exchequer then I would have no difficulty in holding that the Court of Session would have such a power under its general residual jurisdiction to which the label of nobile officium may be attached if only to distinguish it from what might technically be seen as a pater patriae jurisdiction. I note that Wilkinson and Norrie Parent and Child p 188, merge both of these concepts where they say: ‘The control of parental power is based on the nobile officium of the Court of Session which acts as parens patriae as does the High Court in England in its wardship jurisdiction and is, in principle, no less extensive.’

The practical significance of the historical analysis appears more to be in the procedural considerations for future cases. I have no doubt that by the one route or the other the Court of Session has the power to grant the necessary authorisation in the present case and it is a matter for regulation for future cases where within the court such applications should fall to be made.

It seems to me that to proceed in cases such as the present by way of authorisation has distinct advantages over a process of declarator. It places the making of the essential decision firmly in the hands of a neutral arbiter and enables the court to consider not so immediately the issue of the lawfulness of the proposed course but rather the propriety of taking that course in the circumstances of the case. It enables the particular circumstances to be explored more effectively and account to be taken of such matters as a view or opinion which the patient might have earlier expressed. It avoids any direct trespass into the criminal law and the problems of competency which may bedevil a declaratory procedure. It may indeed proceed on the basis that the conduct is at least of doubtful legality as otherwise the application would fall to be refused as unnecessary. It was suggested that this route would open up too many factors for the judge to consider or even open the way to an endorsement of euthanasia. I do not consider that such fears are well-founded. The court will be operating against a background of sound medical opinion given with due regard to proper practice and the relevant ethical principles of the medical profession. The scope of the matters to be considered should be determined by consideration of the function which the court would be called upon to exercise in cases of this kind.

In the course of the discussion before us it was said that the power should be exercised for the benefit of, or for the welfare of, or in the best interests of the ward. But while in the context of some medical situations such expressions may be of value I find less assistance in such language when the choice is between life of a sort and death. It seems to me that in a case such as the present the question for the court is whether in light of the material put before it it is or is not just and proper to grant the authorisation in the circumstances as viewed from the position of the patient. The court stands as it were in the position of a parent authorising treatment or the absence of treatment on behalf of a child and looking to the problem from the situation of the child. It is above all else the position of the patient to which regard will have to be paid. Neither the wishes of the family nor the burden of continued care should predominate over that primary consideration. It may be that the substance of the test which is formulated in terms of the benefit to or the best interests of the child is no different from the approval which I have sought to express but in the context of the case I hesitate to use such language.

Guidance is certainly desirable on the procedural detail for such applications. I agree with the observations which your Lordship in the chair has made in that regard.

In the whole circumstances I agree with the response which your Lordship proposes should be made to the Lord Ordinary in this case.

LORD CULLEN —I am in full agreement with the opinion of your Lordship in the chair and with the rulings which you propose. I wish only to add a few observations of my own in regard to the jurisdiction of the Court of Session which is relevant to cases of the present type.

The Court of Session retains a jurisdiction derived from the Sovereign as parens patriae to grant authority for the taking of steps which are in the best interests of those who are incapable of giving their authority or consent for that purpose. In the past this jurisdiction has been exercised through the appointment of tutors dative and in more recent times the court has conferred on them particular powers to act in the best interests of the ward, including, where appropriate, a power to consent to the carrying out of medical treatment.

However, this is plainly only one way in which the general jurisdiction may be exercised. Techniques of modern medicine have created situations in which the natural process of death in a patient who is in a persistent vegetative state may be indefinitely postponed by means of artificial methods of nutrition and hydration. The discontinuance of that treatment so as to allow the patient to die peacefully, with dignity and with the least distress may be wholeheartedly supported by medical opinion but in the absence of any clear authority for the taking of that step it is natural that the medical practitioners who are in charge of the patient will be reluctant to court the risk of prosecution. However, just as with the carrying out of medical treatment the court is able, where it is satisfied that this is in the best interests of the patient, to authorise the withdrawal of that treatment. The single unifying principle which underlies both the long-established practice of the appointment of tutors dative and the authorisation of the carrying out or withdrawal of medical treatment is that the court, when called on to do so, will exercise a jurisdiction to determine what should be authorised as being in the best interests of the person who is unable to give authority or consent for himself or herself. For this purpose it is plain that procedure by way of petition is the appropriate course to be followed. In Tomkins v Cohen Lord Keith at p 23, in contrasting the historical origins and purposes of a summons and a petition, said: ‘A petition is an ex parteapplication addressed to the Lords of Council and Session and seeks their aid for some purpose or other, e.g. by supplying some deficiency of power in the petitioner, in protecting pupils and minors, by exercising some statutory jurisdiction, or the nobile officium, in a variety of matters.’

The development of the jurisdiction to which I have referred may be traced through legal writings and decisions over a number of centuries. Sir James Balfour in his Practicks which was completed by about 1583 stated (at p 114): ‘Thair ar thre kind is of tutors; for sum tutoris ar testamentaris, sum tutoris of law, and sum ar tutoris dative. The tutor testamentar sould be preferrit to the rest; and quhair thair is na' tutor testamentar, the tutor of law sould have place; and failzeing of thame baith, the King may constitute a tutor dative.’

Sir Thomas Craig, writing the Jus Feudale at the beginning of the 17th century pointed out (at II xx 9) that all pupils and persons of unsound mind were under the care and protection of the King: ‘This explains how it comes about that, when agnates fail, the appointment of tutors dative lies with the King. For he is ‘pater patriae’; and the care of all such persons belongs to him as protector of the helpless.’

The appointment of such tutors dative was made by the King through the Court of Exchequer (Stair Institutions, I vi 11). Following upon the provision for this made by art 19 of the Act of Union, it was enacted by sec 27 of the Court of Exchequer Act 1707 that the power of passing tutories which had formerly been enjoyed by the Scottish Court of Exchequer was to be conferred on the new Court of Exchequer in Scotland. Likewise Erskine (Institute I vii 8) stated that tutors dative ‘were by the Roman law named by the magistrate, but with us by the King alone, as pater patriae, in his Court of Exchequer’; and at I vii 9 he describes the procedure by which such tutories dative were passed. These appointments gave the tutor charge over both the person of the ward and his estate.

At the same time the Court of Session had developed the practice of the appointment of factors loco tutoris and curators bonisin the exercise of its nobile officium. This was well established before the passing of an Act of Sederunt dated 13 February 1730 which introduced rules for their conduct. In Bryce v Graham Lord Cringletie at p 434 pointed out the temporary nature of such appointments: ‘It appears to me perfectly clear that the court never formed a conception that they were entitled to give a permanent appointment to any one to act for another in the situations alluded to in the Act. All that they had exercised was, to throw around the unprotected a temporary safeguard, till a regular and legal one could be obtained from the proper quarter; but it never was in their contemplation to encourage the omission of applying for a permanent protection from the power legally entitled to grant it.’

By the latter he referred, of course, to the Court of Exchequer. As Lord Gillies pointed out at p 438 these appointments were regarded not only as temporary but also as extending only to the estate of the ward. The curator bonis in that case had, in his words ‘no power over his person, or the slightest right of control over it’. There were some instances in which the court granted a factor loco tutoris or a curator bonis an authority in regard to the person of the ward (see Irons on the Law and Practice relating to Judicial Factors, pp 187 and 285) but this appears to have been done only in exceptional cases where there was some pressing necessity for the court's intervention in this respect. As from the coming into force of the Distribution of Business Act 1857 petitions for the appointment of factors loco tutoris and curators bonisrequired to be dealt with in the Outer House, leaving only the authorisation of special powers to the Inner House (see Dixon's Tutor).

Section 1 of the Court of Exchequer (Scotland) Act 1856 provided: ‘The whole Power, Authority and Jurisdiction at present belonging to the Court of Exchequer in Scotland, as at present constituted, shall be transferred to and vested in the Court of Session, and the Court of Session shall also be the Court of Exchequer in Scotland.’

Section 19 also made particular provision with respect to tutors dative as follows: ‘The Duties heretofore performed by or incumbent on the Court of Exchequer with regard to the Nomination, Appointment, or Control of Tutors Dative shall be performed by the Court of Session acting as the Court of Exchequer in Scotland, upon Applications for such Nomination or Appointment to be made to either of the Divisions of the said Court by way of summary Petition; and the Procedure under such Petitions may be, as near as may be, the same as under other summary Petitions to the said Court, but may be regulated and varied from Time to Time in such Way and Manner as to the said Court may seem proper.’

Thereafter the appointment of tutors dative was exercised by the Inner House in accordance with sec 19. In the first case which came before them, Wilson, Petr, the court required intimation of the proceedings to the Crown as it had been part of the Crown's prerogative to nominate the person who was to be appointed. In AB v CD, p 90 Lord President Inglis at pp 94–95 pointed out the distinction between temporary and permanent incapacity which had long been recognised and was demonstrated by the terms of the Act of Sederunt of 13 February 1730. At p 97 Lord McLaren observed that the court did not receive many applications for the appointment of tutors dative: ‘I suppose because it is a gratuitous office, and because it is more convenient that such estates should be managed on the footing of professional responsibility by agents who make it their business, and who are paid for their services.’

The last reported case in which a tutor-dative was appointed was Dick v Douglas. That case illustrated the later practice of a separation of functions with a curator bonisappointed in respect of the estate and a tutor dative in respect of the person of the incapax. The last petition for the appointment of a tutor dative which was dealt with by the Inner House was the case of Morris, 11 July 1986, unreported, in which the First Division appointed the petitioners to be joint tutors for five years to their son who was 19 years of age and suffered from a mental handicap and epilepsy and was unable to care for himself on a continuous basis. The appointment was for the exercise of certain particular powers, including the power to consent to any health care that was in his best interests.

The Court of Session Act 1988 was intended, according to its long title, to consolidate various enactments with amendments to give effect to recommendations of the Scottish Law Commission; and to repeal, in accordance with its recommendations, certain enactments which were no longer of practical utility. The enactments repealed included sec 19 of the Act of 1856. In its report on the Court of Session Bill which was presented to Parliament in March 1988 the Scottish Law Commission stated: ‘The procedure prescribed by this section is not used in practice, it being now superseded by the ordinary procedure of the Court of Session of petition to the court for the appointment of a judicial factor loco tutoris.’

This statement is somewhat surprising in view of the case of Morris; and of the fact that, unlike a tutor dative a factor loco tutoris has no authority over the person of the ward.

Since 1986 there has been a marked revival in the number of applications for appointment of tutors dative, as may be seen from an article by Adrian D Ward, solicitor, in 1992 SLT (News) 325. In each case the application was disposed of by a single judge sitting in the Outer House and the appointment was associated with a number of specific powers, including the power to consent to any health care that was in the best interests of the ward. In several instances power was granted to consent to surgical operations; and in at least two cases this extended to consent to sterilisation. The only cases which were concerned with the appointment of a tutor dative and in which an opinion was delivered were Chapman, Petrs and L Petitioner, unreported. In the first of these cases Lord Penrose declined to appoint a tutor dative where there was no apparent need for this and where such an appointment would have been no more than incidental to an application relating to the financial affairs of the incapax. In the latter case Lord MacLean appointed a tutor dative after considering and rejecting the opposition by the curator ad litem for a woman aged 33 who suffered from a severe mental handicap. He granted powers including the power to consent to her surgical sterilisation where that was in her best interests. According to information which I have obtained from the Petition Department of the court there were 27 appointments of a tutor dative during the three years 1993–95. From this it is plain that such appointments and the powers with which tutors are equipped are meeting a significant need which has emerged in modern times.

In the course of his submissions, which were of considerable assistance to the court, the Lord Advocate submitted that sec 19 of the 1856 Act should be regarded as having been procedural in character. Its repeal did not affect the power of the Court of Session to appoint and empower tutors dative, which could still be done by reliance on the general provisions of sec 1 of that Act. In my view that submission was well-founded and I therefore disagree with the view which has been expressed by the annotators of rule 48 of the Court of Session Rules 1994 that petitioners for such appointments have become incompetent since the repeal of sec 19. It is therefore right that it should be clearly understood that the competence of such applications is not in question.

I might add that even if the repeal of sec 19 had the effect, contrary to the view that I have expressed above, of repealing the statutory basis for the court's exercise of the power formerly enjoyed by the Court of Exchequer in Scotland, there would be considerable force in the argument that such appointments could still be made by virtue of the nobile officium. Stair (IV iii 1) observed that: ‘In new cases, there is necessity of new cures, which must be supplied by the Lords, who are authorised for that effect by the institution of the College of Justice.’

In the Royal Bank of Scotland plc v Gillies at p 55 Lord Justice-Clerk Ross stated: ‘Although the court tends to limit the exercise of its jurisdiction under the nobile officium to cases in which the power has already been exercised, it is neither possible nor desirable to define exhaustively or comprehensively all the circumstances in which resort may be had to the nobile officium.’

Among the examples of the application of this jurisdiction is the original basis upon which petitions for the custody of children were disposed of, although the court in regulating its procedure determined that such applications should be presented in the Outer House (see Syme v Cunningham 1973. The same considerations applied to access to children (see S v S, per Lord Reid at pp 50–52). It may also be noted that in this context the Court of Session has been described as exercising a parens patriaejurisdiction in respect of children resident or domiciled within its jurisdiction, similar to the jurisdiction exercised by the Court of Chancery in respect of England (see Stuart v Stuart, per Lord Campbell LC at p 60 and Lord Cranworth at p 66; and McLean v McLean, per Lord Justice-Clerk Cooper at p 84). However, in the light of the view which I have already expressed it is unnecessary to consider whether this branch of the parens patriae jurisdiction should be extended to cover the appointments of tutors dative or the type of authorisation with which the present case has been concerned.

LORD MILLIGAN —I agree with the opinion of your Lordship in the chair and in particular with the rulings which you propose and the reasons therefor. There are just four points about the substance of the matter concerned upon which I wish to comment.

The first point relates to the need for legislation. In the Bland case, Lord Browne-Wilkinson said, at p 878: ‘I have no doubt that it is for Parliament, not the courts, to decide the broader issues which this case raises.’ Lord Mustill said (at p 891): ‘The whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the general criminal law, but also of a sound procedural framework within which the rules can be applied to individual cases. The rapid advance of medical technology makes this an ever more urgent task, and I venture to hope that Parliament will soon take it in hand.’

While court procedures in Scotland differ in many respects from those in England, and materially so in the present context, the need for legislation concerning the substance of authorisation is the same in Scotland as in England. Furthermore, it seems to me that the substantive law should be the same. The fact that at least a start has been made towards such legislation is welcome but, realistically, the necessary legislation is not likely to be enacted for some time. The prospect of legislation could become a relevant factor in consideration of a particular application for authorisation to withhold treatment but for the purposes of the present case in particular it is accepted that the court has to proceed as best it can in the absence of such legislation.

The second point relates to the test to be applied pending legislation. I readily agree that in cases such as L Petitioner where surgical sterilisation was proposed, the correct test is the best interests of the ward. In such cases, as in other situations where a ‘best interests’ test is to be applied such as custody of children, the respective advantages and disadvantages of options can be weighed to produce a ‘best interests’ decision in a real sense. I have considerable difficulty with application of such a test in the circumstances of a proposed withdrawal of treatment case such as the present. However, I do accept that such a test can properly be applied in a case such as the present if the matter be viewed negatively, namely that it is not in the best interests of the patient to be kept alive by artificial means where the court is satisfied that the diagnosis is so clear and the prognosis so futile that the ward truly has no interest in being kept alive. Parliament will no doubt require to grapple in due course with the thorny problems of implication of altruistic sentiments and the relevance, if any at all, of interests other than those of the patient.

The third point relates to the dependence of the courts on the medical profession so far as diagnosis and prognosis is concerned. The problem which arises in cases such as this is incidental to development in life preservation techniques. Where authorisation by the court is so dependent on the medical profession it seems to me right that the medical practitioners upon whose reports applications are based should have every opportunity they require to review their opinions immediately prior to authorisation being granted and, indeed, in the event of authorisation granted but not immediately utilised, prior to utilisation of authorisation granted.

My fourth and final point relates to protection of the position of medical practitioners (including nursing staff) so far as the criminal law is concerned. The Court of Session cannot grant protection and nor, indeed, can the High Court of Justiciary. The Lord Advocate very properly intimated that he could not assist on this matter in advance of this court's rulings but that he would consider the position so far as his policy was concerned once he had been able to consider the rulings which we make. Medical practitioners involved in implementing authorisations by the court clearly should be able to implement such authorisation without fear of criminal prosecution. It would, I trust, be unthinkable that a medical practitioner would be prosecuted for complying by ordinary means with an authorisation by the Court of Session. While this may be so, I approve of the Lord Advocate's undertaking that he will consider our rulings with a view to considering an appropriate policy statement on the matter of criminal proceedings, or rather lack of criminal proceedings, in such cases, whether or not court authorisation has been sought. Again, legislation should cover this matter in due course.

LORD WYLIE —I agree with the opinion of your Lordship in the chair, and there is really nothing I feel I can usefully add.