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short of a child capable of being born alive because the sanctity oflife of a viable fetus is preserved by s.5(l). "Nothing in this Act shallaffect the provisions of the Infant Life Preservation Act 1929."Further, the 1967 Abortion Act did not directly impose a duty on amedical practitioner or anyone else to terminate a pregnancy,though it was conceded in this action that the doctor was under aduty to advise the mother of her right under the Act to have herpregnancy terminated in a case such as Mrs McKay’s. It did notfollow, however, that because the doctor could lawfully terminatethe pregnancy, that he was obliged to do so, or that the fetus had alegal right to die. Lord Justice Stephenson continued: "It is not andcould not be suggested that the quality of her life is such that she iscertainly better dead, or would herself wish that she had not beenborn or should now die. Therefore, neither the Authority nor thedoctor were under any duty to the child to terminate her life. Theduty might be owed to the mother, but it could not be owed to thechild.

(ii) To impose such a duty would be to make a further inroad intothe sanctity of human life, which would be contrary to public policy.It would mean regarding the life of a handicapped child as not justless valuable than the life of a normal child but so much less valuablethat it was not worth preserving, and it would even mean that adoctor would be obliged to pay damages to a child infected withrubella before birth who was in fact born with some mercifullytrivial abnormality. These were the consequences of the necessarybasic assumption that a child has a right to be born whole or not atall, not to be born unless it can be born perfect or "normal",whatever that might mean.

(iii) Added to that objection was the opening of the courts toclaims by children born handicapped against their mothers for nothaving an abortion, and the further objections also considered bythe Law Commission (i.e., the extra burden on doctors already opento claims for negligent treatment of a fetus). -

(iv) The only duty of care which courts of law could recognise andenforce are duties owed to those who can be compensated for loss bythose who owe the duties. In cases of personal injury, money tariffshad been devised which were more or less acceptable. A childinjured in the womb could be compensated in damages only byevaluating the difference between a whole and healthy life and a lifespent injured from birth. This was not being claimed. The only lossfor which the defendant could be held liable was the differencebetween being born deformed or non-existence. This was

impossible to evaluate, but if a court had to decide whether it wasbetter to be born maimed or not to enter it at all, it would be bound tosay that it was better in all cases of mental and physical disabilityexcept in an extreme case, such as that of Croke v Wiseman (1982) (1 1WLR 71). The present case was not so extreme. However that mightbe, it was not for the court to take such a decision by weighing lifeagainst death or recognising a claim like Mary McKay’s. There wasno such known cause of action established in either English orCommonwealth courts and no such action had ever been broughtbefore. Such a claim should not, as a matter of principle, allow theright to sue. This view was supported by the majority of Americandecisions reviewed by the court, which, though only persuasive, hadbeen helpful. Lord Justice Ackner agreed. Lord Justice Griffiths,however, would not have struck out the claim at this stage, althoughhe also concluded that English law could not recognise a claim for"wrongful life".

CommentIn a sense Mary McKay’s claim can be seen as the reverse side of

the R v Arthur coin. 1 Indeed, Lord Justice Stephenson’s review ofthe law relating to the deformed fetus and child highlights theexisting law concerning the sanctity of human life, and that lawregards the life of a severely deformed baby as being as sacred as thatof a healthy baby, once it is born alive. I would also agree with theirlordships in the Court of Appeal that it would be most undesirableto allow claims for "wrongful birth" as a matter of public policy and

1. Brahams D. Acquital of paediatrician charged after death of infant with Downsyndrome Lancet 1981; n: 1101-02.

that it was not for the Common Law to evolve, but a matter only forParliament specifically to introduce should public demand sorequire it.

McKay v Essex Area Health Authority and Dr Gower-Davies. Court ofAppeal, Civil Division, Stephenson, Ackner and Griffiths L,71. Judgmentdelivered Feb. 19, 1982.

DIANA BRAHAMS,Barrister-at-Law

Disastrous Consequences of Neglected Cyanosisduring Anaesthesia

IN the small hours of May 14, 1981, an emergencyappendicectomy was undertaken at Hereford County Hospital on aman aged 26. As the incision was made the blood was noted by thesurgical registrar undertaking the operation to be very dark. He thendesisted while the senior house officer administering the anaestheticchecked the anaesthetic apparatus which included a ventilator, set at700 ml 12 times per minute; through this the patient was receiving0 5% halothane and a 2: 1 mixture of nitrous oxide and oxygen at arate of 4 - 5 litres a minute in association with muscle relaxation.

Although he thought the bag was not filling properly he could findno cause for the cyanosis; he therefore advised the surgeon tocomplete the operation with all speed. Meanwhile the cyanosis didnot improve; ten minutes or so later the two theatre sisters prevailedupon the anaesthetist to send for the anaesthetic registrar on duty,who arrived within minutes and suspected a fault in the ventilator.He discarded it for a Magill circuit through which he ventilated thepatient’s lungs with 100% oxygen, whereupon the patient’s colourwas restored to a normal pink. When the effect of the relaxant wasreversed by neostigmine at the end of the operation the patientbegan to breathe normally; but he showed no signs of regainingconsciousness. For this reason the consultant anaesthetist wascalled an hour later; diazepam, dexamethasone, and phenoperidinewere prescribed but to no effect and the patient has remainedunconscious to this day.The case has caused considerable public concern, the more so

since the Hereford and Worcester Area Health Authority wereinhibited from holding a formal independent inquiry because of therefusal to participate by the doctors concerned, at the behest of theMedical Defence Union. The then Minister for Health, Dr GerardVaughan, also rejected a request for a Ministerial inquiry undersection 84 of the Health Service Act of 1977; instead he suggested tothe A.H.A. that a panel of "outside" experts should be invited toscrutinise the evidence and submit their findings and advice,regardless of their inability to question the doctors involved. Prof. J.P. Payne (director, Research Department of Anaesthetics, RoyalCollege of Surgeons), Dr E. A. Cooper (consultant, anaesthetist,Royal Victoria Infirmary, Newcastle upon Tyne), and Mr P. H.Lord (consultant surgeon, Wycombe General Hospital) have nowsubmitted their report.From the notes it was clear that the patient remained deeply

cyanosed for 20 minutes; this could only be accounted for by severeoxygen deprivation, and from the evidence the fault must haveoccurred when the ventilator was being used. Because a certainmechanical connection was not made it appears that the patient wasvirtually rebreathing from a closed circuit for 20 minutes; duringthat time the oxygen concentration must have been rapidlydepleted, the hypoxia being compounded by the use of nitrous oxideduring induction and afterwards, since the gas must have passed outof the body to dilute further what little oxygen remained.The senior house officer giving the anaesthetic could not be

blamed for failing to understand the technical intricacies of theventilator, for neither did the duty registrar. Moreover theconsultant anaesthetists at the hospital had failed to follow themanufacturer’s advice, albeit somewhat incomprehensible, that anoxygen monitor should be used when the ventilator was in closedcircuit. The outside experts take the view that he should,nevertheless, have followed the usual procedures to overcomesevere and dangerous cyanosis, and have recognised when moreexperienced help should have been called. But the tribunal’s

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findings carry wider implications: "... we do have certain anxietiesabout the basic training and the suitability of an anaesthetist whohas to have the fact that his patient is cyanosed pointed out to him bythe surgeon, who leaves a cyanosed patient connected to a machinewhen it is obvious that oxygen is not reaching the lungs, who fails toseek help when it is offered and readily available and who, aswitnessed by his report, is apparently unfamiliar with the correctspelling of basic drugs used in anaesthesia."The report is to be considered by the A.H.A., privately, on March

19.

Commentary from Westminster

Has the Government Given up the N.H.S?

THE Government’s achievements in the health field havebeen "the subject of a concerted campaign of denigration andslander the like of which is rarely seen in the politics of thiscountry," according to one of the present D.H.S.S.

Ministers, Lord Elton. In a House of Lords debate last weekhe declared that "our cuts in the health service have no more

reality than had the Emperor’s clothes." Anyone whodoubted this need only look for confirmation to the publicexpenditure white-paper published at the time of Sir

Geoffrey Howe’s latest Budget. In fact, that white paperseems to indicate, as it stands, a significant slowing down inthe growth of the N.H.S. Lord Elton’s chief, the SocialServices Secretary, Mr Norman Fowler, said as much, a daylater, when health and social services were debated in theCommons, on the budget resolutions. Speaking of 1983/84,Mr Fowler said: "Clearly we are not able to and should notmake provision for further growth in these later years withoutbeing sure that the resources could, in the event, be madeavailable without inflicting damage to the economy

generally..." In other words, we shall see.Mr Fowler was in no doubt about the Government’s

achievements so far. More was being spent in real terms onthe N.H.S. than in any year of the previous LabourGovernment. More resources were going to hospital andcommunity health services, and more to the familypractitioner services. "This is real growth, over inflation, andit will enable the N.H.S. to provide for the increased numberof very old people and to make use of advances in medicaltechnology that result in more effective treatment of

patients-in hip replacement, transplants, and better

diagnostic tests." Thus far Mr Fowler was in tune with LordElton’s buoyant words of the day before: "We are looking at aposition where there is more money, there are more nurses,there are more doctors, and there are more patients beingtreated. These facts are facts of record." The Secretary ofState was less bullish about the future, however. He began byconceding that a reasonable chunk of the growth planned inthe Health Service for 1982-83 will have to be financed by thehealth authorities through their own efficiency savings. Theywill also have to contribute 22 million towards the nurses’pay settlement. Beyond 1983, the Government would requirehealth authorities to find the growth needed for the

development of services-and especially the extra servicesneeded for the continuing increase in the number of the veryold-by making further increases in the efficiency with whichthey use resources. Then Mr Fowler put it another way: "thewhite-paper expressly says that the provision for healthauthorities’ spending in these later years is subject to reviewduring the next annual public expenditure survey in the lightof the availability of resources and the scope for further

increases in N.H.S. efficiency". Whichever way Mr Fowler’sCivil Servants phrase it for him, it certainly looks as if itmeans that the N.H.S. will have to give up the idea ofcontinous growth. In spite of Mr Fowler’s insistence onpatient services being funded through greater efficiency for atleast the next two years, there are some planners at theD.H.S.S. who realise that efficiency savings, by definition,produce diminishing returns.Nevertheless Mr Fowler seems to be staking a lot on,

"efficiency". He has just announced two initiatives intendedto improve the efficiency of the management of N.H.S.resources. The first is the setting up of an inquiry team to lookat the possibilities of raising money for the N.H.S. by sellingits underused and surplus land and property. Two privatesector estate agents are to consider the N.H.S.’s estate of51 000 acres, of which 4000 acres has so far been deemed bythe D.H.S.S. as ripe for selling. One regional treasurer, anarea administrator, and an area works officer are also in thisteam. Sale of N.H.S. land has already increased a veryconsiderably under the present Government, in terms ofacreage and value. The second initiative involves getting sixfirms of professional accountants to audit the accounts ofeight selected district health authorities, over the five yearsfrom 1983. Normally the D.H.S.S. does its own externalauditing. Commercial auditors, Mr Fowler believes, couldmake a big contribution towards value for money within theN.H.S.The Government’s decision that the N.H.S. cannot

continue growing at its previous rate seems to be reflected,too, in the Budget. Certainly the Chancellor turned his backon using the Budget as a preventive health exercise. Tobaccotax was scarcely trifled with, now that the Treasury hasrealised that large tax increases really do hit tobacco sales, andthus diminish the return to the Treasury. Alcohol, to the joyof some and disappointment of others, was also treatedgently. Child allowances, one-parent allowances, pensions,fuel concessions to the elderly were increased by a fewpennies. But, more significantly, the Chancellor refused toextend his reduction of the employers’ National Insurancesurcharge to health authorities, on the grounds that themoney saved would not be used productively, as in industry,but would all go on paying wages. Equally significantly, therewas no other budget measure related to the N.H.S. In spite ofthe huge amount of public expenditure it accounts for, theN.H.S. played no part in Sir Geoffrey’s strategy.

It begins to look as if the Conservatives are giving up theN.H.S. They see the political problem: a real national healthservice takes up an enormous slice of public expenditure. Onpresent economic projections the Exchequer will literally notbe able to afford it within fifteen years. But the Governmentseems unable to conceive a way to sustain the N.H.S. in its

present role over future years. Mr Fowler has shelved the

report of the working party on alternative finance for theN.H.S. The privatisation of ancillary services has flopped.Reorganisation, exhortations to efficiency, and half a-dozenitinerant accountants in 1983 do not look like providing alasting solution. The Government still has another shot in itslocker, it thinks. Private medicine will increasingly be invitedto ease the strain on the N.H.S. The next Budget, perhaps inthe autumn, is almost certain to include measures intended tochannel more patients towards the private sector. Taxconcessions for those using private care are probable. Almosthighly probable is some form of tax advantage for developersof private hospitals.

RODNEY DEITCH