Yates & Anor v Great Ormond Street Hospital
Who is best to determine the welfare of a child? The courts or the parents? It is an impossible question with often, many impossible answers.
Charlie (Charles) Gard; a name that has been appearing in national newspapers for the last 10 months. Every mention of his name brings vast discussion and public debate, yet the Supreme Court’s decision on 8 June 2017 and the impending decision from the European Court of Human Rights, may well mean that Charlie’s fight for life could sadly be over.
Charlie Gard is a 10-month old baby suffering from genetic mutation and irreversible brain damage. He cannot move, swallow, see, hear or cry. His current life expectancy can be measured only in months but his parents are determined to fight for his life. Nucleoside therapy is available and a doctor is willing to conduct such treatment for Charlie in the US, which the parents wish to pursue. However, medical practitioners at Great Ormond Street Hospital believe that such treatment is not in the child’s best interests.
This is, therefore, the foundation of the court case. Doctors caring for Charlie issued an application in the Family Division of the High Court in February 2017 seeking to declare it lawful to withdraw artificial ventilation and to provide only palliative care to Charlie. They believe this is in the child’s best interests. The parents disagree.
Charlie’s parents have raised over £1.3m to cover the costs of treatment in the US. Standing in their way, however, is the hospital and the court.
The key issue is that the treatment offered in the US would not cure Charlie’s condition, but potentially limit its destruction. Indeed, the treatment was deliberated by doctors in the UK in the earlier stages of Charlie’s life. However, as time has progressed, the doctors in the UK have concluded that the treatment sadly would not benefit Charlie and the most appropriate course of action would be to let the child, as Mr Justice Francis stated in the High Court, “die with dignity”.
This case has brought to light several fundamental points of law but, perhaps most notably, the idea that the court and hospital can have greater power than the parents to make decisions for their child’s care. Counsel for the appellant, Richard Gordon QC, argued two grounds of review. Firstly, that it was neither necessary nor proportionate for the State to override the parents’ legitimate choice of treatment. Secondly, that it is outside of the jurisdiction of the court and the hospital’s powers as a public authority, to prevent a person seeking to arrange or deliver the treatment discussed in the absence of proof of ‘significant harm’. Mr Gordon stated that for the doctors to make such significant decisions without considering the wishes of the parents was “state intrusion on a massive scale”.
In Lord Justice McFarlane’s leading judgment, he stated that moving Charlie to America for treatment “would be likely to expose him to continued pain, suffering and distress” (para114). After all, the court’s paramount consideration being the welfare of the child. The court trying not only to balance competing interests but also, at the heart of their decision, the life of Charlie Gard.
McFarlane LJ stating what many of us feel, that “for the parents, this is a devastating outcome”. Yet all hope is not lost for Charlie’s parents. Despite the recent Supreme Court decision to deny the parents an appeal of the Court of Appeal’s decision, the European Court of Human Rights ordered for Charlie to be kept alive until midnight on Monday 19 June 2017.
The parents were granted an application under Rule 39 of the European court’s procedure rules for urgent interim measures (which are only granted under exceptional circumstances). This meant that the parents were able to convince the court that if such measures were not granted, an imminent risk of irreversible harm was posed to Charlie. Originally, the European Court of Human Rights granted such relief until midnight on Tuesday 13 June, though this has now been extended to Monday 19 June. This time will allow for the court to consider whether an arguable case exists, that Article 8 (the right to privacy and family life) has been breached.
Whilst we await the court’s decision over the appeal of this delicate and widely publicised issue, the next hope for Charlie and his parents is that they can appeal the decision and keep Charlie alive. Sadly, these discussions are far too often laid at the door of the court. It is, for the court, a balancing exercise considering the welfare checklist, with often no winners.
Jason M Hadden, barrister at St Ives Chambers, Birmingham
Poppy Watson, law student at the University of Birmingham