A Child’s Right To Die – When Will The Courts Intervene?
Last month, a high court judge ruled that doctors could cease life-support treatment for a severely brain-damaged 11-month-old baby, despite his parent’s wishes that treatment should be continued.
These types of cases are some of the most heart-breaking to come before the courts and require the best legal advice from a London family law solicitor. Not only are professionals needed to support the family through the trial, but expert legal advice and representation must also be provided to all sides to allow the best decision to be made on behalf of the child.
Isaiah Haastrup suffered a catastrophic brain injury after being deprived of oxygen at birth. According to the BBC, “specialists at King’s College Hospital in London had argued that giving further intensive care treatment to Isaiah Haastrup was “futile” and not in his best interests. They say he is profoundly disabled but believe he might be able to feel pain”.
Doctors believed it was in Isaiah’s best interests to transfer his treatment to palliative care.
In giving his decision, Mr Justice MacDonald said: “Examining Isaiah’s best interests from a broad perspective ... I am satisfied that it is not in his best interests for life-sustaining medical treatment to be continued. That, with profound sadness, is my judgment”.
He went on to praise Isaiah’s parents, stating: “It is trite but true to observe that the court cannot imagine the emotional pain that the conclusion of the court will cause to the parents. It is my hope that, in due course, the parents will be able to derive some small measure of comfort from the knowledge that they have done all that they can for their much-loved and cherished son to seek an alternative outcome for Isaiah”.
Reading such tragic cases, it is natural for parents to wonder, when can the court intervene and either force treatment to occur despite the parent's wishes or, at the request of medical teams, order treatment to be stopped?
Who has the right to consent to medical treatment?
Children over the age of 16 years have the right to consent to medical treatment, and this right can only be overruled in exceptional circumstances. Children under 16 years may be able to consent if they have what is known as “Gillick” competence. This term came from a House of Lords case Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 581. In 1982, Mrs Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent. The judge at first instance dismissed Mrs Gillick’s claim. The Court of Appeal overruled this. The House of Lords reinstated the high court judge’s ruling, holding:
"...whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent."
Lord Fraser went on to provide guidelines (known as the Fraser guidelines) which stated a doctor could proceed with advice and treatment “provided he was satisfied with the following criteria:
- that the girl (although under the age of 16 years of age) will understand his advice;
- that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;
- that she is very likely to continue having sexual intercourse with or without contraceptive treatment;
- that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
- that her best interests require him to give her contraceptive advice, treatment or both without the parental consent."
Although originally the Fraser guidelines were only thought to apply to matters concerning the issuing of contraception, the case of Sue Axton v The Secretary of State for Health (The Family Planning Association: intervening) [2006] EWHC 37 (Admin) confirmed they extended to other matters relating to sexual health, including abortion.
Lord Fraser also noted "parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision”.
If a young person refuses treatment and this decision may lead to their death or severe injury, health professionals and/or the parents can apply to the Court of Protection to have the decision overruled. In such cases, the advice from the best family law solicitor in London will be required.
If Gillick competency does not apply (for example, the child is a toddler), a person with parental responsibility can consent to treatment as long as they have the capacity to provide consent.
“My child, my choice”
The issue of whether medical treatment for a child should be denied or continued is high emotive. No case demonstrated this more than that of baby Charlie Gard (4th August 2016 – 28th July 2017).
Charlie had the disease, mitochondrial DNA depletion syndrome. Although he appeared healthy when he was born, his condition quickly deteriorated. Charlie developed severe brain damage and could not open his eyes or move his arms or legs. His condition also meant he was unable to breathe unaided, therefore needed to be on a ventilator. His heart, liver and kidneys were also affected.
Great Ormand Street Hospital (GOSH) decided in late 2016 that further treatment of baby Charlie was futile and may be prolonging his suffering. They sought to end life-support and move Charlie onto palliative care. His parents, who were praised unanimously by the courts for their commitment and dedication to their baby, wanted to take Charlie to America for experimental treatment. GOSH applied to the high court to overrule their wishes, questioning the potential of nucleoside therapy to treat Charlie's condition.
For courts to override the wishes of someone with parental responsibility, the child must be made a ward of the court. When a child is made a ward, the court “takes over the ultimate responsibility for the child” (Re E (SA) (A Minor) [1984] 1 WLR 156 at 159)), sharing parental responsibility with those who already hold it but exerting control over important decisions.
The passing of the Children Act 1989 significantly decreased the use of wardship. However, it has not disappeared entirely. The most common situations in which the court may seek an injunction for the child's protection are outlined at paragraph 1.2 of Practice Direction 12D of the FPR, and are as follows:
a) orders to restrain publicity;
b) orders to prevent an undesirable association;
c) orders relating to medical treatment;
d) orders to protect abducted children, or children where the case has another substantial foreign element; and
e) orders for the return of children to and from another state.
The Practice Directive states that wardship should not be considered unless a solution is unable to be found under the Children Act 1989.
Wardship is especially valuable in cases involving the issuing or ending of medical treatment because of its immediacy.
In summary
The issue of when the courts should override the wishes of parents regarding medical treatment is likely to continue to result in heart-rending legal fights. All parents want the best for their children, and the idea of giving up the fight, even if the chance for recovery is minimal, goes against most parental instincts. However, on the flip-side, health professionals have a duty to do what is best for the child, even if that means rejecting the wishes of the parents.
There is no solution. And although judges are compassionate, the law has no emotion. It is simply the law. And rightly or wrongly, in cases like these, it must prevail.
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