Best interests for children – who decides the Parents, the Doctors or the Courts?
The recent well publicised Charlie Gard matter brought into focus the tensions and conflicts which can occur when parents and specialist healthcare professionals’ views conflict on what is in a child’s best interests but who ultimately decides?
CG had a rare genetic mitochondrial illness and the parents had found a US team at a reputable medical centre who were trialling new treatment, the efficacy of which was unknown. As first instance the Court followed a traditional best interest analysis whereby a balance sheet of factors weighing risks and benefits is drawn up. The Court looks at the child’s welfare in the widest sense not just clinical and a declaration was made that treatment other than palliative care was not in CG’s best interests.
The parents challenged that decision and it was argued that parents are in a privileged position to give or withhold consent which can only be overridden if their chosen option was likely to cause the child significant harm.
The Court of Appeal held that test did not apply in medical treatment cases. It is often a difficult balance especially where there is nothing to choose between the benefits and detriments of different treatment options. The Court of Appeal concluded that even if the significant harm test had to be applied the experimental US treatment could not be said to provide any significant benefit and the Court resorted to the traditional principles of what was in CG’s best interest balancing the various risks and benefits based on expert evidence.