Who has the right to decide?

HERE we go again. The case of a tragic baby born with only half her face, who is at the centre of a legal tug-of-war between doctors and parents in Newcastle, is not the first to embroil health care in controversy.

Two years ago, the world was gripped by the extraordinary case of Siamese twins "Jodie and Mary". The sisters were brought to the UK for specialist surgery by their Maltese parents in the hope that they might both survive.

But when surgeons told the parents that only one of the twins would live if they operated, the couple withdrew their consent and tried to block the operation. As devout Roman Catholics, the parents did not wish to inflict almost certain death on one of their twin babies, even though it would mean life for the other child.

Doctors at the Central Manchester Healthcare NHS Trust decided the only way to ensure that at least one of the twins would survive was to seek a High Court ruling giving them the power to operate.

Despite a challenge in the High Court by the parents - and protests by some religious groups - the doctors got their way. Following surgery, Jodie survived but, as predicted, her twin sister Mary died.

Ashley Wilton, head of Newcastle Law School, recalls that Catholic countries in Europe were shocked by the ability of British doctors to seek legal backing to over-ride the wishes of parents on a religious issue. But, according to Mr Wilton, the principle that children must, if necessary, be protected against their own family is well established in UK law.

The headlines generated by events at the Royal Victoria Infirmary this week do not revolve around religious convictions, but concern the rights and wrongs of hospital treatment against parental opposition. Parents of sick children would expect to be consulted over any plan of treatment, but they may be shocked at the powers available to doctors if serious disagreements arise which have a direct bearing on the child's welfare.

Mr Wilton says it is an "uncomfortable fact" that parental consent could be completely over-ridden if health professionals believe the child's welfare is in danger. The same principle is applied when social workers descend on the homes of children who are deemed to be at risk for a host of other, non-medical reasons.

Doctors, like social workers and police officers, can have these powers confirmed by the courts because - sadly - parents do not always know best.

"If parents were headstrong about their own future health that is one thing, but exercising particular views on behalf of an infant is a very different matter," says Mr Wilton, who has an expertise in medical law. "There are cases where, for instance, patients believe that all disease should be cured by homeopathic remedies, even cancer, or you have the well-known objections by Jehovah's witnesses to blood transfusions."

While adults can refuse treatment, in the case of children doctors have a responsibility to act in their best interests, says Mr Wilton. If necessary, this could mean doctors have to take legal action to enforce treatment.

Legal endorsement by a High Court judge is essential or the doctors and nurses could leave themselves open to prosecution for assault if they treated the child patient without parental consent.

"It is really very simple. Parents have the right to consent to or refuse treatment on behalf of their child but they must do so in the best interests of the child," he says. "If the parental refusal is not in the best interests of the child, then the parental refusal can be over-ridden by following a procedure which can involve the High Court."

The "unpalatable" truth that parents can have their strongly-held beliefs over-ridden by the authorities was tested in the case of the Siamese twins from the Maltese island of Gozo. But an even more extraordinary case occurred only three years ago - coincidentally at the same Newcastle Hospitals Trust where the current drama is unfolding.

A teenage heart patient, who said she was "scared of being different" was ordered by a High Court judge to have a heart transplant against her wishes, if necessary. The 15-year-old, a patient at the Freeman Hospital in Newcastle, was close to death after suffering heart failure. Her mother had consented to a heart transplant which would save her life, but the teenager - identified only as M - protested that having "someone else's heart" would make her different to other people.

She told doctors: "I don't want to die, but I would rather die than have the transplant and have someone else's heart, I would rather die with 15 years of my own heart." Senior doctors at the Newcastle hospital believed the youngster should be saved from herself and so asked solicitors to seek a court order to allow treatment to go ahead against her will. A High Court order was successfully obtained but, in the face of strong pressure, and at the 11th hour, the girl finally agreed to undergo the heart transplant which would save her life.

The same principle, that doctors have a responsibility to act in the interests of immature patients, is at work in the dispute over the baby born with half a face. "In cases like this, the hospital is doing what it must do. Just imagine if the mother was allowed to take the child away and the child then died. Imagine the outcry if that happened," Mr Wilton says.

"The hospital has to be responsible for the child and the mother has to be responsible for the child. What we have in these circumstances is a conflict of responsibilities which - if necessary - has to be resolved in court."

But Dr Richard Nicholson, editor of the Journal of Medical Ethics, believes that the current problems at the RVI should never have got this far. He urges senior paediatricians at the Tyneside trust to "sit down with the parents for however long it takes" and explain why the proposed treatment is important to the child's future welfare. The difficulties have arisen because of a breakdown in communication between parents and doctors, he argues.

But Ashley Wilton says it is just coincidence that two high-profile consent cases have happened at the same hospital trust. "There will be one of these cases going on somewhere in the country virtually every day, but you usually don't get to hear about them."