25th July 2017

Nobody would want to be in the position of the parents of Charlie Gard. As a consequence of the way the case has been reported many people wonder how it is that a Judge can interfere in a parent’s right to decide their child’s future. Even to the extent of allowing medical staff to withdraw treatment that would effectively allow the child to die.

Obviously the child as a consequence of his age and condition cannot consent to or refuse medical treatment. Although the parents have parental responsibility a court can be asked to overrule this and decide what is in the child’s best interests. The welfare of the child is paramount and the Judge will look at the issue from the point of view of the patient. The Judge is not deciding what he or she would do themselves but is to weigh up objectively all of the medical, emotional and other issues. There is a very strong presumption in the most serious cases that life should be protected and prolonged but that is not the decisive factor. Pain and suffering, the quality of life, the nature of required treatment and the likely outcome are all weighed in the balance with many other factors. The Judge tries to place themselves in the position of the patient to decide what he or she would want to do.

Undoubtedly on a regular basis up and down the country many families and doctors will have to regrettably consider what is in the best interests of a child and generally they agree. It is rare for an application to be made to Court to ask a Judge to make the decision. Generally when the parents and doctors cannot come to an agreement it will be the hospital who will apply to the Court for consent to the treatment on the child’s behalf or for a declaration that it would be lawful to stop all or certain parts of the treatment. The child will in the most serious cases have someone independent known as a “guardian” appointed by the Court to represent them and to put forward all of the arguments that they would be expected to make if they had the capability to do so. The Judge will generally ask for opinions to be sought from independent doctors. Having heard and read all of the evidence the Judge will then have to make the decision.

Blog by Peter Henry, Medical Negligence Solicitor