The courts and children’s medical treatment

7 March 2017

Seven-month-old Charlie Gard is being kept alive on a ventilator. Doctors at Great Ormond Street Hospital say that there’s nothing more they can do to treat his rare genetic condition, and want to withdraw life support, according to media reports. The baby’s parents disagree, and want to take Charlie for treatment in the United States.

The dispute will be decided by a High Court judge early next month. But why is it a legal matter at all?

The High Court is only involved here because of the disagreement between parents and doctors. Charlie’s mother and father “believe that he is in much better shape than the hospital does", according to their barrister.

That’s not unusual. In a case that went to the Court of Appeal last year, the judges said that while the mother of an unnamed child believed that he could hear music and respond to her voice despite the terrible injuries suffered in a car crash, “all the doctors say that the mother is mistaken”.

What happens in the case of a dispute like this was summarised in the case of Charlotte Wyatt over a decade ago. The issue then was whether doctors were entitled to withhold aggressive treatment from a severely disabled child they thought almost certain to die no matter what.

“As a small child, Charlotte self-evidently lacks the capacity to make decisions about her medical treatment. In these circumstances, such decisions are, in the first instance, taken by those having parental responsibility for her (her parents) in consultation with, and on the advice of, the doctors treating her.

In the event of an important disagreement between doctors and a child's parents, however, either side can invoke the inherent jurisdiction of the Family Division of the High Court relating to children, and a judge of the Division will decide what course of treatment is in the best interests of the child.”

In other words, the hospital goes to court and asks the judge to make the decision about withdrawing life support or withholding further treatment.

The “inherent jurisdiction” is a sort of legal safety net. It allows the High Court to “make any order or determine any issue in respect of a child” unless a law passed by parliament or made by the courts has limited what it can do on that issue.

This flexible power is used to do things like order the return of a child from another country, prevent sexually abusive men from contacting vulnerable childrenor resolve disputes between doctors and parents over serious medical treatment.

A judge using the inherent jurisdiction power needs to decide what’s in the “best interests” of the child. That’s why you see references in media reports of the case to the best interests of Charlie Gard. It’s a legal test, not a rhetorical flourish.

While the views and opinions of parents are relevant in these kinds of cases, and the court will lean heavily towards prolonging life, ultimately the judge has to make up his or her own mind on what’s best for the child.

The barrister for Great Ormond Street Hospital says that “every day that passes is a day that is not in the child’s best interests”. Charlie’s parents, Connie Yates and Chris Gard, take exception to that and believe that he’s not in pain.

They want to raise money to take their child to the United States for an experimental treatment. Great Ormond Street reportedly considered but rejected using that course of treatment, and recommends palliative care only.

We don’t yet know the detailed reasons behind the hospital’s stance. Nor is it clear whether Ms Yates and Mr Gard believe that the American treatment could provide a cure rather than a temporary improvement in their child’s condition. The case has only had a preliminary hearing so far.

Mr Justice Francis will hear all the evidence at a full hearing, reportedly on 3 April. It’s his job to decide whether the best interests of Charlie Gard require withdrawing life support or, if his parents raise the money, sending him to the USA for treatment.

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