Supreme Court: In the matter of Charlie Gard Permission to Appeal Hearing Comment

It is likely that many of you will have read about or seen the sad case of Charlie Gard on the news. This matter went before the Supreme Court yesterday at a permission to appeal hearing. The matter was heard by Lady Hale, Lord Kerr and Lord Wilson who declined the family of Charlie Gard permission to appeal to the Supreme Court.

Charlie’s parents, Chris Gard and Connie Yates, wish to take 10 month old Charlie to undergo a clinical trial in the US. Charlie suffers with a rare inherited disease, infantile onset encephalomyopathy mitochondrial DNA depletion syndrome. This condition means that Charlie has deteriorated since birth. Lady Hale noted that ‘he cannot move his arms or legs or breathe unaided. His brain is also severely affected, and there was a significant decline in the level of his brain functioning in January of this year. He is kept alive by a mechanical ventilator.’[1] Charlie’s parents wish to take him to undergo a clinical trial in the US, having raised significant funds to do so through a crowdfunding website. It was noted by Lady Hale that Charlie’s parents agreed that his present quality of life is not worth living but they wished to allow him the chance of life they believe the trial in the US presented. The medical evidence obtained in relation to this treatment suggested that ‘any benefit is as close to zero as makes no difference. In other words…it is futile.’[2] Due to the nature of the matter, Charlie’s interests were represented by a guardian, who was also of the opinion that the treatment was not in Charlie’s best interests.

The matter had previously been decided by both the High Court and the Court of Appeal, who both agreed that it is likely that Charlie would suffer significant harm if his present suffering were prolonged without any realistic prospect of improvement. The clinical trial in the US was not thought to offer that prospect and was therefore thought not to be in Charlie’s best interests.

The legal test which had been applied was whether further treatment would be in Charlie’s best interests. Charlie’s parents argued that this was the incorrect test to be applying. The Supreme Court held that the correct test had been applied and thus the proposed appeal did not raise an arguable point of law.

The nature of this case is tragic. One cannot help but feel the deepest sympathy for Charlie and his family. As noted by Lady Hale, Charlie’s parents are ‘desperate to explore every possible way of preserving the life of their gravely ill but much loved baby son.’[3]

The law, however, is clear in this area. Section 1 of the Children Act 1989 provides that the welfare of the child shall be the paramount consideration in any question considering the upbringing of the child in any proceedings. This is supported by Article 3.1 of the United Nations Convention on the Rights of the child which confirms that in matters like this, the child’s best interests shall be a primary consideration. It therefore follows that parents are not entitled to insist upon treatment which is not in their child’s best interests. Lady Hale confirmed that ‘the European Court of Human Rights has firmly stated that in any judicial decision where the rights under Article 8 [of the European Convention on Human Rights] of the parents and the child are at stake, the child’s rights must be the paramount consideration. If there is any conflict between them the child’s interests must prevail.’

Although the Supreme Court refused permission to appeal, they did grant a stay of a previously imposed High Court order, which prevented Charlie’s life support being removed whilst the case was being heard, until 5pm of the day following the hearing in order to allow the case to be considered by The European Court of Human Rights.

The European Court of Human Rights have since ordered that Charlie should continue to receive treatment until Tuesday to allow them time to consider the case.

This matter is a highly emotive one, with many members of the public having very strong views as to the correct course of action in this case. Although the law in this area is clear, the matter is not clear ethically. An interesting commentary of this case has been provided by Professor Julian Savulescu in The Lancet[4]. Professor Savulescu bases his arguments in the value judgments which are being made as to the value of Charlie’s life. He believes that it is rare that a life should be deemed intolerable and not worth living. He also looks to arguments of distributive justice and notes that these cannot be used against Charlie because Charlie’s family have raised the funds to cover his treatment. However persuasive we find such arguments to be, it is sadly the case the courts have to decide cases on the law and not necessarily an ethical consideration of the matter. I will be very much interested to see if the European Court of Human Rights decides to review the matter further at a hearing.

The judgment in this matter can be found at: https://www.supremecourt.uk/news/permission-to-appeal-hearing-in-the-matter-of-charlie-gard.html

The judgment summary can be viewed here: https://www.supremecourt.uk/watch/charlie-gard/judgment.html

Professor Savulescu’s article can be found here: http://thelancet.com/journals/lancet/article/PIIS0140-6736(17)31204-7/abstract

 

Vicky Gregory

Deputy GDL/LLB Programme Leader, Distance Leader

Module Leader, Legal Ethics

[1] www.supremecourt.uk/news/permission-to-appeal-hearing-in-the-matter-of-charlie-gard.html

[2] Ibid

[3] Ibid

[4] http://thelancet.com/journals/lancet/article/PIIS0140-6736(17)31204-7/abstract

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