The end of a chapter
25 July 2017
Great Ormond Street Hospital v Yates and Gard –  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.