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 It is likely that Charlie’s life support will now be withdrawn and he will be given palliative care only.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.
