CYIL vol. 13 (2022)

PETR ŠUSTEK CYIL 13 ȍ2022Ȏ Perhaps the strongest opposition to it arose after the English cases of Charlie Gard 25 and Alfie Evans. 26 Incidentally, both unrelated cases regarded little English boys who ultimately died of their congenital disease after the courts, upon the request of treating hospital, ordered to withdraw life-support which was considered a futile prolongation of dying and suffering. The fact that the state through its judicial power is allowed to deny the parents the right to decide on their children’ life-sustaining treatment and the possibility to take them for a treatment to a foreign country has been criticised by a part of the general public, 27 political leaders, 28 and ethical experts. 29 Some of these critics aim directly at the suitability of the best interests of the child standard as such, and some of them suggest that a more suitable approach would consist in the so-called harm principle. 30 The focus of the decision-making would undergo a paradigmatic shift: instead of looking for what is in the child’s best interests, the courts would only have to make sure that the parents’ decision would not do a (significant) harm to the child. 31 In practice, this would mean that instead of a binary approach under which a particular treatment either must be or must not be provided, there would also be the third option: the area of cases burdened with moral uncertainty, where the treatment may be provided or withdrawn depending on parents’ views. 32 As a result, state interferences with parental rights would be less frequent and rather limited to less controversial cases. Nevertheless, life-saving provision of blood products represents a typical (almost) uncontroversial case. Refusal of the procedure would most likely do a very significant harm to a child, leading to an important decrease of chance of survival if not directly to death. The harm threshold would certainly be crossed, rendering the provision of the treatment a must. Dominic Wilkinson even uses the provision of blood transfusion to a child following trauma whose parents are Jehovah’s Witnesses as an example of medical treatment with certain and significant benefit, which cannot be refused by the parents. 33 In these cases, there will, as 25 See Great Ormond Street Hospital for Children NHS Foundation Trust v Yates Court of Appeal (Civil Division) [2017] EWCA Civ 410 (Gard 2) and especially Charles Gard and Others v. the United Kingdom (App. No. 39793/17), ECtHR, First Section, Decision of 27 June 2017. 26 See Alder Hey Children’s NHS Foundation Trust v Mr Thomas Evans, Ms Kate James, Alfie Evans (A Child by his Guardian CAFCASS Legal) [2018] EWHC 308 (Fam) (Evans), [2018] 2 FLR1223. 27 See for example Public reaction to Alfie Evans case “Understandable but ill-informed”. The Gazette. (26 April 2018.) accessed 16 August 2022. 28 See for example Alfie Evans: World’s reactions to sick toddler’s case. BBC. (25 April 2018.) accessed 16 August 2022. 29 See for example GILLON, R. Why Charlie Gard’s parents should have been the decision-makers about their son’s best interests. Journal of Medical Ethics. (2018, Vol. 44, No. 7), pp. 448–452. doi: http://dx.doi. org/10.1136/medethics-2017-104723, or SAVULESCU, Julian. Debate: The Fiction of an Interest in Death? Justice for Charlie Gard. Practical Ethics. (26 April 2017.) accessed 16 August 2022. 30 See for example TRUOG, R. D. Is “best interests” the right standard in cases like that of Charlie Gard? Journal of Medical Ethics. (2020, Vol. 46, No. 1), pp. 16-17. doi: http://dx.doi.org/10.1136/medethics-2019-105808. 31 See WILKINSON, D. In Defence of a Conditional Harm Threshold Test for Paediatric Decision-Making. In GOOLD, I., HERRING, J., AUCKLAND, C. (eds.). Parental Rights, Best Interests and Significant Harms. Medical Decision-Making on Behalf of Children Post-Great Ormond Street Hospital v Gard . Oxford, New York: Hart Publishing, 2019, p. 85. 32 See ibid., pp. 88–90. 33 See ibid., p. 90.

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