CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ FUTILE MEDICAL CARE: CHILDREN, PARENTS AND COURTS was dismissed. 24 Permission for further appeal having been refused, the parents filed two applications to the European Court of Human Rights. Both were declared inadmissible. 25 The latter court did not provide detailed reasons, however due to obvious similarities with the case of Charlie Gard it can be safely deduced that the same line of argument as set out above should apply. 2. Ethical Aspects In the introductory part we have briefly touched upon the notion of “futile” or “ineffective” care. It can be understood as such care which brings no benefit to the patient. However, in the context of life-sustaining treatment, the one apparent effect of such care is that it sustains life, i.e. delays death in comparison to what would happen without it. To designate such treatment as “ineffective” means to accept from the ethical and moral point of view that life in itself is not an unquestionable, absolute value. In other words, it requires to accept that life can sometimes have such a low quality that it is not worth artificially prolonging. This suggestion is clearly controversial. It may be argued that it is not possible to even compare the value of living, no matter if associated with pain and suffering, and not-living. Withdrawing of care considered futile or ineffective is different from euthanasia. While the latter is a broad and not always clearly defined concept, it comprises some kind of shortening of the patient’s life by an external act (e.g. particular medication administered by a physician). Withdrawing of care merely means that life is not prolonged. In other words, euthanasia involves killing, withdrawal of life-sustaining treatment involves letting die. 26 Of course, it is possible to object that there is no rational basis for distinguishing the moral and ethical aspects of the two concepts on such flimsy foundation. After all, their consequence – earlier death of the patient in comparison to what was otherwise possible – is the same. But consequence is not the only imaginable criterion. We may also differentiate between the two on the basis of a motive. Transposition of care from life-sustaining to palliative may contain an element of compassion, but it is primarily based on rational assessment of treatment effects and acceptance of the natural course of things. Without delving too deeply into a philosophical discussion of medical ethics, we may rather focus on whether withdrawing of ineffective care is accepted in medical practice according to documents created by the relevant professional associations and societies. This may of course differ from state to state. We have already seen in the cases mentioned above which originated in the United Kingdom (Charlie Gard and Alfie Evans) that it was the health care providers who applied for a judicial decision confirming the lawfulness of termination of life-sustaining treatment. It would be hardly imaginable that they would do so unless they felt that it was permissible Ormond Street Hospital v Gard. (Hart Publishing, Oxford, New York 2019), or GOOLD, I., AUCKLAND, C., HERRING, J. Medical Decision-Making on Behalf of Children in English and Welsh Law: A Child-Centred Best Interests Approach. In GOOLD, I., AUCKLAND, C., HERRING, J. et al. Medical Decision-Making on Behalf of Young Children. A Comparative Perspective. (Hart Publishing, Oxford, New York 2020), pp. 115–128. 24 Judgment of the Court of Appeal of 6 March 2018, E (A Child) , [2018] EWCA Civ 550. 25 Decisions of the European Court of Human Rights on applications no. 14238/18 and 18770/18. 26 For an analysis of this distinction cf. ČERNÝ, D. Aktivní a pasivní eutanazie: teoretická perspektiva. II. část [Active and Passive Euthanasia: Theoretical Perspectives. Part II]. Časopis zdravotnického práva a bioetiky. (2016, Vol. 6, No. 3), pp. 33–51.

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