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The sterilisation was regarded as unnecessary by the headmaster and social worker at
the school D attended. They initiated a complaint to the school’s medical officer. The
judge found that the family doctor was unmovable in his opinions about the benefit of
the sterilisation and that “his views were clouded by resentment at what he considered
unjustified interference” (p. 4). It was established that D had sufficient intellectual
capacity to marry in the future. On those grounds, and with considerable evidence
which rejected the sterilisation of 11 year old girls because it was outside the realms of
usual practice, the judge declared the procedure unlawful.
Since Re D [1976], a number of other cases have been brought to court by people
concerned about unfettered clinical decisions made on behalf of people who cannot
make their own decisions. For example, in Australia a decision to perform a
hysterectomy on a 15 year old intellectually disabled girl was brought to court by an
advocacy officer of the New South Wales Council for Intellectual Disability (Re
Elizabeth [1989], p. 2).
Health professionals responded to the new environment of uncertainty by seeking
juridical sanction for their treatment decisions. For example, Tony Bland who was a
victim of the Hillsborough football stadium disaster in England in 1989. In the tragedy,
Tony Bland’s lungs were crushed and the supply of oxygen to his brain was interrupted.
As a result, he suffered catastrophic and irreversible damage to the higher centres of his
brain resulting in a condition known as persistent vegetative state (PVS). Someone in
PVS breathes unaided and digestion continues to function. But, although his eyes are
open, he cannot see. He cannot hear. The patient is incapable of voluntary movement
and can feel no pain. He cannot taste or smell. He cannot speak or communicate in
anyway. He has no cognitive function and can thus feel no emotion, whether pleasure
or distress. The space which the brain should occupy is full of watery fluid. With
skilled nursing and close medical attention a young and otherwise healthy PVS patient
may live for many years. Tony Bland could not swallow, and was fed by means of a
tube, through which liquefied food was mechanically pumped into his stomach.
(Summary adapted from the appellate judgement of Sir Thomas Bingham MR, Airedale
NHS Trust v Bland, [1993]).
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