Charlie Gard: Strasbourg Court rules parents’ case inadmissible
20 June 2017
Yates v United Kingdom – here
Update: On 27 June the Strasbourg Court ruled the application by Charlie Gard as inadmissible. The full decision is not yet up on the Court’s website but here is the press release detailing the Inadmissibility decision in the case Gard and Others v. the UK – decisions by UK courts endorsed A spokesman for the Great Ormond Street Hospital said:
Today’s decision by the European Court of Human Rights marks the end of what has been a very difficult process and our priority is to provide every possible support to Charlie’s parents as we prepare for the next steps.
The Strasbourg Court by a majority endorsed in substance the approach by the UK courts, saying that they had been “meticulous” in their reasoning. It is likely that Charlie’s life support will now be withdrawn and he will be given palliative care only.
Following the Strasbourg Court’s request for interim measures for the UK – which means the hospital may not take Charlie Gard off life support as the Supreme Court has allowed it to do – the Supreme Court arranged a short hearing to take place Monday 19 June, to give directions. The Strasbourg Court has now put in place a further request that treatment and nursing care be continued beyond its original deadline of 19 June (see the press release from Strasbourg here: Gard and Others v. the UK) . This is because that Court has to consider the parents’ application that the case does not just concern Charlie’s right to die with dignity but their rights under Article 8 as his parents to be afforded respect for their decisions as to what is in Charlie’s interests.
This is a unique situation facing the Supreme Court, and, probably, the judges of the European Court of Human Rights. As the UK court acknowledges, by granting a stay, even of short duration, it would “in some sense” be complicit in directing a course of action which is contrary to Charlie’s best interests, since this was its last word on the matter. It is no wonder that this is causing some soul-searching. The Strasbourg Court’s interim measures order is directed at the government, not Great Ormond Street Hospital or its doctors. The latter won a ruling from the Supreme Court that they should remove life support from Charlie Gard because it is considered to be in violation of his right to die with dignity, and, of course, not in his best interests.
The request, and the dilemma, before the Supreme Court
The Supreme Court has been asked by the UK government to give any directions which it considers appropriate in the light of the following:
(a) a request to the UK by Strasbourg on 9 June 2017 in accordance with Rule 39 to ensure that the hospital would continue to provide Charlie with AVNH until midnight on 13 June;
(b) a request to the UK by Strasbourg on 13 June to ensure that the hospital would continue to provide it until midnight tonight (19 June) and, if by then the parents had filed a substantive application to the ECtHR, to ensure that the hospital would continue to provide it until the court had determined it; and
(c) recent indications on the part of Strasbourg to the UK that it would treat any such application with the utmost urgency and that, once an application was received, it would aim to issue a time-table for its determination.
The dilemma is that the number of stays required, both by domestic courts and now by Strasbourg, have in turn obliged Great Ormond Street
to take a course which, as is now clear beyond doubt or challenge, is not in the best interests of Charlie. The hospital finds itself in an acutely difficult ethical dilemma: although the stays have made it lawful to continue to provide him with AVNH, it considers it professionally wrong for it to have continued for over two months to act otherwise than in his best interests.
It is therefore with some apparent reluctance that the UK Court has responded to the ECtHR by directing that the judge’s declarations be further stayed for a period of three weeks, namely until midnight on 10/11 July 2017. But any further spinning out of this medico-legal drama should not be permitted:
We respectfully urge our colleagues in the ECtHR to do everything in their power to address the proposed application by then. We consider at present that we would feel the gravest difficulty if asked to act yet further against Charlie’s best interests by directing an even longer extension of the stay.
It is not entirely clear to the UK Court how Strasbourg proposes to deal with the status of an application
made by parents on behalf of a child for a declaration that his rights have been violated by decisions found to have been made in his best interests.
This conceptual and legal difficulty will no doubt be addressed when Strasbourg has considered the full substantive arguments filed today. It is also argued on Charlie Gard’s parents’ behalf that the right to life under Article 2, and the right to liberty under Article 5 is also in play.
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See here for my view of the moral issues involved: http://www.spiked-online.com/newsite/article/why-charlie-should-be-allowed-to-die/20035#.WVte-uIo-Ee
Essentially, I argue that the parents are wrong because they’ve relied on the morality of emotion, rather than of reason (although I would agree that they should be able to take their son to America).
I wholeheartedly agree with Jeremy Wickins. What is clearly is Charlie’s best interest is that he is alive and with his parents who love him more than anything…and that he is getting real care in a real hospital that believes that “do no harm” still means something. The delay in the courts cannot be good for Charlie as he languishes in this hospital’s “care.”
I hope and pray that Charlie’s parents go to a good hospital that doesn’t have an “ethics” panel that will just “show code” him (Brad and Jesi Smith in MI speak nationally about their very similar story re: their daughter and could guide Charlie and his family to a safe place to go! http://www.savethe1.com/poor-pre-natal-diagnosis-pro-life-speakers/ ). You see, here in the states euthanasia is happening illegally and without consequence. Not all hospitals are equal.
Great Ormond Street Hospital should have no rights here. Opening that door is like opening Pandora’s Box…once done, there is no turning back. Charlie’s legal precedent will be used to kill any and all whom the hospitals deem unfit to live. Parents beware. Assuming doctors have your child’s “best interests” at heart can be deadly…even in countries where euthanasia is not yet legal!
I am concerned that commenters are discussing it from the parents’ position, but do not appear to consider it from Charlie’s position. Of course they want Charlie to survive…who wouldn’t…but if this is not in his best interests, then I think it is right that the decision is made by someone else.
Montgomery was also a poor case, imo. The lady in question was short and diabetic. This gives much higher risks of poor outcomes with vaginal delivery, and even at the time she would usually have been offered a c section. Why she wasn’t is incredible to me, and probably outside Bolam.
“Difficult cases make poor law” and of course she should have had the risks explained to her.
The upshot of Montgomery is that surgeons now won’t recommend a course of action and will leave the decision to the patient. Of course this means that no one can possibly give informed consent as it is impossible to understand the implications without having the pros and cons discussed, and a course of action recommended with reasoning. It appears to be becoming more difficult to find this.
I am also a teacher of law and ethics to med students, along with currently studying end of life issues around sanctity of life and being a doctor. This is not a resource issue. This is about best interests of a child who cannot do anything for himself and cannot display any behaviours to communicate his feelings. Parents cannot always get the decision right, and if they are always allowed to have the last say then what could be said for other types of Behavious towards children such as child abuse? In fact, some may say that this is abuse: certainly the medical teams are having a great deal of difficulty having to continue to inflict burdensome and physiologically futile treatments on Charlie.
Whose life is it here? Is Charlie an “end in himself” or merely a “means to an end”? I don’t believe that Charlie’s continued treatment is for his benefit and therefore not Kantian (for the deontologists). For the consequentialists the balance of greater good cannot come from further treatment (regardless of costs) as we already know that Charlie will not improve with this experimental treatment and parents can only continue their agony. The only beneficiary from treatment would be the pockets of the treating team in the US.
It is interesting that Charlotte Wyatt is brought up as an example. I understand she is still alive, but the parents split up and Charlotte was cared for by a foster family, at least for some time. I don’t know what happened subsequently. Care was restricted for Charlotte: that doesn’t mean that the intent is to kill, but to limit harm. The treatment for Charlie is likely to be causing harm and be burdensome – it is painful to be on a ventilator.
Another case that could be relevant is that of re AK [2001] 1 F.L.R. 129 who refused medical treatment in advance, for 2w after he could no longer communicate by any means. He knew that once he lost eye movement he would no longer be able to express pain, tell anyone if there was something wrong. At this stage his ventilation was withdrawn and he died. I think this gives us some insight into what it is like for people who cannot respond. We don’t know this for Charlie Gard, of course, but the suggestion is that he is severely brain damaged. While this may mean he is not suffering, the judgment in Bland certainly implies that any treatment would be battery.
(There are a number of other issues too)
So it is the case here that the courts are looking at best interests for the child, which needs to come above best interests of other affected people.
There are already two children with very similar strains of Charlie’s illness who have received the new medication and both have vastly improved over a 12 month period, one little girl is seen actually riding a bicycle, yet months before was written off by doctors, but they have both received the medication from America which is far more advanced in this kind of illness. What right does anyone have to prevent Charlie Gard from trying this new medication. He has nothing to loose but everything to gain. How can the best interests of this child be to end his life when there is a chance, no matter how small. How has medicine ever progressed without someone being the first to try something new. And by the way he can open his eyes and suck on his dummy. Don’t believe everything you read in the press.
In a sentence Charlie’s life support in the UK by the NHS must continue till the parents have finalised formalities for provison of medical treatment whilst travelling etc.
Parents are responsible for their children and certainly are not accountable to the state which is kidnapping children. This must stop.
It’s wonderful to see someone from your background speaking out against this disgraceful situation. A GP has just posted on Charlie’s Army FB page saying she totally disagrees and has written to her MP and GOSH. Please if you are able to speak out please do so before an innocent baby is sacrificed just because no one in authority will speak against GOSH and the courts. This is a huge miscarriage of justice. I am so ashamed of my country.
I, as a teacher of medical law and ethics to medical students, have run out of sympathy with hospitals and the English legal system with regard to overriding parents’ wishes about their children, this appears to make little sense. It seems that the Supreme Court are saying that, regardless of the decision by the ECtHR, the decision has been made domestically and so any decision to override Charlie’s parents will stand. The arrogance shown by the SC is staggering, and a clear indication that it can no longer be trusted to protect parents and their children.
Just to be clear, this is a straight-forward battle between the rights of parents and agents of the State over who has the final say over the care of children. There are (or would be, if the doctors and/or courts allowed the parents’ wishes to be fulfilled) no resource allocation issues clouding this case – the money to send Charlie to the USA has been raised already. This is simply about power to make parents comply with medical opinion, yet the medical profession and the courts have been shown to be woefully wrong in similar situations previously – see the case(s) of Charlotte Wyatt, for example.
More and more, the courts have been moving to giving competent adult patients autonomy in medical decision-making – see Montgomery – yet they back away from giving the same level of choice to competent parents. This is unacceptable, and there needs to be a public debate about where the limitations on the limits that should be placed on the inherent jurisdiction of the courts, so that parents can look after their children to their best ability.