ECtHR endorses English courts’ ‘meticulous’ decisions that life-sustaining treatment withdrawal is in ten-month-old’s best interests
28 June 2017
Great Ormond Street Hospital will be allowed to withdraw life support for Charlie Gard after the European Court of Human Rights declared inadmissible an application by the ten-month-old’s parents that UK law was in breach of the right to life principle.
The decisions by the English courts to agree to doctors’ request to stop providing Charlie with life-sustaining treatment had been ‘meticulous, thorough and reviewed at three levels of jurisdiction with clear and extensive reasoning giving relevant and sufficient support for their conclusion’, the Strasbourg judges said.
Charlie Gard suffers from an incurable terminal condition and has almost entirely irreversible brain damage. Doctors envisaged experimental nucleoside therapy but this was deemed ‘futile’ after a sudden deterioration of his condition in January.
Earlier this month the Supreme Court upheld a ruling finding that it was in Charlie’s best interest to allow the hospital to stop providing artificial ventilation, nutrition, and hydration (AVNH), and to move him to palliative care so that he could die with dignity. This also prevented Charlie’s parents from taking him to the US, where a doctor said he was still prepared to provide nucleoside therapy, even though he accepted this would be unlikely to improve Charlie’s condition.
The Strasbourg judges said the European Convention on Human Rights gave domestic courts and authorities a wide margin of appreciation in the sphere concerning access to experimental medication for the terminally ill. In cases raising sensitive moral and ethical issues, they said, ‘it was not for the [European] court to substitute itself for the competent domestic authorities’.
The Strasbourg court had asked the UK to stay the Supreme Court’s decision twice, first to allow the European judges to consider whether there might be a case to answer, and a second time to give Charlie’s parents’ counsel, Richard Gordon QC, time to lodge a substantive application.
Acceding to both requests, the justices made clear they did so ‘with considerable hesitation’ and suggested they would not agree to further delay. ‘We would feel the gravest difficulty if asked to act yet again against Charlie’s best interests by directing an even longer extension of the stay,’ they said last week.
The ECtHR said the UK’s legal framework governing access to experimental medication and the withdrawal of life-sustaining treatment was generally compatible with the convention. ‘The domestic courts had direct contact with all those concerned, notably, they had heard from all the medical experts involved in the treatment as well as experts instructed by the applicants, from Charlie’s parents themselves and from an independent professional appointed as the child’s guardian, had received expert reports from other doctors of international standing in the field and had visited the hospital,’ the European judges said in a statement.
‘It was appropriate for the hospital to approach the courts in the UK in the event of doubts as to the best decision to take, and, lastly, the domestic courts had concluded, on the basis of extensive, high-quality expert evidence, that it was most likely Charlie was being exposed to continued pain, suffering and distress and that undergoing experimental treatment with no prospects of success would offer no benefit, and continue to cause him significant harm.’
Charlie’s parents had argued – on their own behalf and that of their son – that the decision to block access to life-sustaining treatment in the US was a breach of the right to life under article 2 of the ECHR and an unlawful deprivation of liberty under article 5.
They also alleged breaches of the right to a fair trial under article 6 and of the right to private and family life under article 8, arguing that the rulings amounted to an unfair and disproportionate interference in their parental rights.
This story was first published on Solicitors Journal on 28 June 2017 and is reproduced by kind permission