The end of a chapter

25 July 2017 by

Great Ormond Street Hospital v Yates and Gard –  [2017] EWHC 1909 (Fam) – read judgment

A lot of things have been said, particularly in recent days, by those who know almost nothing about this case but who feel entitled to express opinions. Many opinions have been expressed based on feelings rather than facts.”

So said Francis J, when dealing with an unusual application by Great Ormond Street Hospital (Gosh) asking for an order, rather than a declaration, that Charlie Gard should be allowed to slip away quietly.  The involvement of the White House, the Vatican, the Bambino Gesu Children’s Hospital in Rome and Dr. Hirano and the associated medical centre in the USA  in this story demonstrates the fact that a mere declaration carries too much ambiguity to allow the hospital staff to do what the courts have approved. The terms in which Gosh put its application were unambiguous indeed:

Therefore orders are sought to remove any ambiguity; orders are enforceable. Despite all of the hospitals best endeavours, this appears as potentially necessary. Not for the first time the parents through their solicitors raised the prospect of criminal proceedings against the hospital and its staff. The Hospital understands that no court order best interests proceedings can afford it or its staff from prosecution.

Throughout this case, the judge has made it clear that he can only change the decision that he made on 11 April on the basis of compelling new evidence. Such evidence has not been put before him. As a result of Dr Hirano’s visit to see Charlie, the child underwent further MRI scans of his entire body and it transpired that ‘in some places Charlie now has no muscle at all, and in other places there is significant replacement of muscle by fat.’ As a result,

The parents have had to face the reality, almost impossible to contemplate; that Charlie is beyond any help even from experimental treatment and that it is in his best interests for him to be allowed to die. Given the consensus that now exists between parents, the treating doctors and even Dr Hirano, it is my very sad duty to confirm the declarations that I made in April this year, and I now formally do so.

Addressing the question arguably at the core of the Charlie Gard case, Francis J laid out the circumstances in which the parents’ autonomy over their own child can and must sometimes be overridden by the state, in the form of its medical services, this intervention supervised by the courts.  The “absurd” notion that gained traction in recent days that Charlie has somehow been a prisoner of the NHS, or that the NHS has the power to decide Charlie’s fate is quite the opposite of the truth. Most of the time, parents make decisions about what is in the best interests of their children and “so it should be”. Just occasionally, however,

there will be circumstances such as here where a hospital and parents are unable to decide what is in the best interests of a child who is a patient at that hospital. It is precisely because the hospital does not have power in respect of that child that this hospital makes an application to the court, to an independent judge, for a determination of what is in that child’s best interests. In circumstances where there is a dispute between parents and the hospital, it was essential that Charlie was himself independently represented and a guardian was therefore appointed to represent Charlie so that there was someone who could independently report to the court as to what was in his best interests. Our judges are fiercely independent of the state and make decisions, having heard evidence and having considered the law.

The ruling of the High Court, with the assistance of the expert evidence put before them by the doctors and staff at Great Ormond Street Hospital, should have been, and now is, the end of a very sad story.

Related posts:

 

5 comments


  1. Charlie could have been cured. Pity the parents did not take up the offer abroad.

    1. Stella H Howell: but that is the whole point of the case: the parents could not make that decision because our law did not allow them. They wanted to take up the offer but the hospital authoritatively ruled against it. In case of dispute between parents and hospital, hospital has the final say according to our law! It is amazing how many people are still not even aware of this extreme legal situation! That is why I argued above that the law, as it is violates a number of human rights.

  2. Dan Smith says:

    Has One Crown Row Office run out of secretaries, again?

  3. Identifying the valid law is only the first, necessary step in examining compatibility of the rules with human rights as you will appreciate; a valid law (in force) still does not mean that a human rights violation is absent unfortunately. “There are rules and reasons for the rules” as D. Kennedy said. “Legal reasoning refers to interpretative fidelity of judges who are bound by the legal formulation of the right; the duty to be faithful to it in their interpretation and application; this duty is counterbalanced so to speak by legislative duty, which is appealing to the political values of the community.” („A Critique of Adjudication‟ 1997). In other words, the principal problem with the legal determinations that refer to identifying the valid law only is that we do not (often) question the secondary purpose of the rules, only the primary ones.
    Human race have seen unfortunately many instances of extreme violations of human dignity by sticking to a crude positivism; this is neither the place nor occasion to remind the readers of those episodes. Describing myself as a “progressive positivist”, my principal problem with the case relates to the wisdom of circumventing biological parents’ views, position and intention in the final determination of their child’s fate or in the context of the case what the” best interest” of the child should be. I am not questioning the expertise; opposite I do believe that it was surely given in good faith and that it was correct. I am questioning the rationale for ignoring, almost humiliating and inflicting further and unbearable psychological pain on the parents by rejecting their intention to try an alternative treatment? Why would this particular aspect be left for the final determination to an authority other than biological parents? The reason is actually pretty obvious, but it is somehow absent from the debates: it is pragmatism, a political choice, apology and the protection of domestic institutions, rather than any particular moral standing or a result of widely debated issue in the society. And this is why inevitably the legal determination may conflict with human rights.
    During this tragic episode it often reverberated in my mind: “What makes the GOSH so special? It has a lot of toys and it doesn’t smell funny”. Is it that we bring hope to thousands of children with complex and life threatening illnesses”? (GOSH advert) .And then a financial plea at the end…see: https://www.youtube.com/watch?v=BpphGTnt42c ).
    “Of course, I will not allow the parents to go somewhere else for help because that may have negative consequences for the trust people have in my own hospital”. OK, I see, but this does not mean that there is no tension between this political convenience and human rights; opposite, there is a pretty serious potential problem with this. For the sake of widening the debate I am going to suggest the following potential tensions between this pragmatism and human rights:
    1. Article 3 ECHR – appointing a guardian absent situations of inappropriateness, child abuse or other illegal patterns of behaviour by parents inherently constitutes a degrading treatment.
    2. Article 2 ECHR – an authoritative determination that no alternative treatment exists conflicts with a positive duty to protect life.
    3. Article 6 ECHR – a lack of sufficiently independent body to rule on the rationale of such legal determination.
    4. Article 8 ECHR – for obvious violation of respect for private and family life.
    I am including the family’s part of the statement that fits into my position and argument below:
    “Charlie had a real chance of getting better. It’s now unfortunately too late for him but it’s not too late for others with this horrible disease and other diseases. We will continue to help and support families of ill children and try and make Charlie live on in the lives of others. We owe it to him to not let his life be in vain’.
    R.I.P. lovely boy!

  4. faolan says:

    Quality of life must be considered in all such cases, and Charlies would have been very poor indeed, I am bound to wonder if the journey to the USA would have been too much for the little lad.
    We cannot prolong life where there is suffering and zero chance of a full recovery, simply for selfish reasons. Having said that, my sympathy goes out to Charlies parents.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech game birds Gay marriage gay rights Gaza Gender genetics Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions licence to shoot life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: