Supreme Court decides that permission to appeal must be refused. Case being considered by Human Rights Court.
Earlier posts about this case can be found here and here.
The case concerned an eight-month-old child, Charlie Gard, who suffers from Mitochondrial Depletion Syndrome, a rare genetic condition that causes brain damage and muscle weakness. Charlie has been reported to be deaf and blind and is unable to breathe without a ventilator. The medical professionals at Great Ormond Street Hospital responsible for Charlie’s care stated that it was not in Charlie’s best interests to continue treatment. Charlie’s parents disagreed and raised over £1.2 million, in order to take Charlie to the USA where he would be able to undergo nucleoside bypass therapy. Great Ormond Street Hospital applied to the court for permission to withdraw Charlie’s treatment and move him to a palliative care programme. By their application dated 24 February 2017, they asked the court to make the following orders:
- that Charlie, by reason of his minority, lacks capacity to make decisions regarding his medical treatment;
- that it is lawful and in Charlie’s best interests for artificial ventilation to be withdrawn;
- that it is lawful and in Charlie’s best interests for his treating clinicians to provide him with palliative care only; and
- that it is lawful and in Charlie’s best interest not to undergo nucleoside therapy; provided always that the measures and treatments adopted are the most compatible with maintaining Charlie’s dignity.
The High Court heard the case on 12th April 2017. Mr Justice Francis stated that, ‘The duty with which I am now charged is to decide, according to well laid down legal principles, what is in Charlie’s best interests.’ He further stated that,
The relevant legal principles which guide the exercise of my jurisdiction are well settled. It is important that I stress that I am not applying a subjective test, I am not saying what I would do in a given situation but I am applying law. Referring to the judgment in Wyatt v Portsmouth NHS Trust [2005] EWHC 117 in which it was stated that,
The judge must decide what is in the child’s best interests. In making that decision, the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the child. There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable.
On application of the best interests test, Mr Justice Francis decided that it was not in Charlie’s best interests. On reviewing the evidence of the doctor in the US, he found that he was ‘unable to indicate from any scientific basis whether a patient with encephalopathy would respond positively.’ Mr Justice Francis therefore cast doubt upon the effectiveness of the nucleoside bypass therapy. He stated that,
There is unanimity among the experts from whom I have heard that nucleoside therapy cannot reverse structural brain damage. I dare say that medical science may benefit, objectively, from the experiment, but experimentation cannot be in Charlie’s best interests unless there is a prospect of benefit for him.
Court of Appeal
Charlie’s parents appealed the decision to the Court of Appeal, and their judgment was handed down on 23rd May 2017. Richard Gordon QC, who led Charlie’s parents’ legal team stated that the case raised “very serious legal issues”. The Guardian have reported the argument of the Health Trust, that “There is significant harm if what the parents want for Charlie comes into effect,” and that “The significant harm is a condition of existence which is offering the child no benefit.” Lord Justice McFarlane praised Charlie’s parents’ composure and dignity and said: “My heart goes out to them.” However, Lord Justice McFarlane, Lady Justice King and Lord Justice Sales all agreed with the decision of the lower court. Lord Justice McFarlane stated that traveling to the USA for treatment “would expose Charlie to harm”. The Court of Appeal concluded that the treatment of Charlie Gard could be withdrawn.
Supreme Court- Permission to Appeal
Charlie’s parents attempted to appeal the decision of the Court of Appeal. They asked for permission for that from first the Court of Appeal and then from the Supreme Court. Lady Hale (at the permission hearing in the Supreme Court) outlined that what made this case unusual was the parents were not asking for NHS funds to prolong the life of Charlie. Their request was that Charlie be kept on life support until permission is granted for Charlie to be sent to the US with private funds the parents had raised. The parents arguing that the wrong legal test had been used in the lower courts and that a decision taken by parents can only be interfered with if the child is likely to suffer significant harm. However, Lady Hale stated that this argument does not apply to hospitals. She emphasised the legal position that the welfare of the child is the ‘paramount consideration’ (S1(1) Children Act 1989). She also refers to the United Nations Convention on the Rights of Child which states that the best interests of the child shall be the primary consideration. Further she made clear that where there is a conflict between the Article 8 rights of parents and a child, the child’s interests must prevail. It was concluded that the lower courts had applied the right test and that the initial factual findings cannot be challenged. It was stated that the proposed appeal raised no arguable point of law of general public importance and so permission to appeal was refused.
Human Rights Court (ECHR)
The parents are reported to be applying to take the case to the European Court of Human Rights. The European Court of Human Rights have stated that Charlie must continue to receive life-support treatment until Tuesday whilst they consider the case.
See : http://www.bbc.co.uk/news/uk-england-40225132
Media Comment
This case has attracted significant media attention and there has been strong public support for the parents’ position.
Just days after the Supreme Court declined to give permission to appeal, Charlie Gard’s mother shared a picture of Charlie his eyes open. The High Court previously heard that Charlie was ‘not able to open his eyes enough to be able to see’:
http://www.dailymail.co.uk/news/article-4594610/Charlie-Gard-s-mother-shares-image-son-eyes-open.html#ixzz4jls1zofi
Questions have been asked as to who has, and who should have, the right to decide on behalf of a child. Comments have also been made regarding why the decision over Charlie’s medical treatment lay in the hands of the judge. In cases where agreement cannot be reached between doctors and parents, court involvement is necessary. It is both a legal and ethical dilemma, where doctors do not believe the continuation of treatment to be in the child’s best interests but neither are they able to discontinue treatment due to the parents’ objection.
Following the High Court decision, some media reactions have been critical of the medical profession. For instance, Researching Reform have accused the medical profession of ‘Professional arrogance’ and referred to those who believe that withdrawing treatment as being in Charlie’s best interests as ‘The anti treatment lobby’.
Comparisons have been made to other cases where children and parents who have been affected by a withdrawal of treatment decision. In 2014, the parents of Ashya King removed him from Southampton General Hospital and took him abroad for proton therapy, which he was unable to receive on the NHS. Ashya is now said to be in school and cancer free.
The Sunday Express have reported that another young boy called Maxwell, aged 5, has received the therapy that Charlie’s parents are seeking, for a mitochondrial condition (although not the exact same condition as Charlie’s). It has been said to have significantly improved the condition.
It is important to understand that both of these cases involve quite different circumstances to those of Charlie.
The case has also been used to highlight the difficulty in accessing legal aid. Charlie’s parents were not entitled to legal aid. Charlie’s parents were above the income threshold and therefore not entitled to legal aid. The case was able to go ahead because the legal team were working on a pro bono basis.
See : http://thejusticegap.com/2017/04/14880/ and https://www.roydswithyking.com/legal-aid-how-exceptional-really-is-exceptional-funding-in-family-law/.
Feature Pic courtesy of Abhijit Chendvankar on Flickr (via Creative Commons Licence) – thanks.