CYIL vol. 13 (2022)

TOMÁŠ HOLČAPEK

CYIL 13 ȍ2022Ȏ

3. Application in Domestic Law When considering the impact of the international treaties and case law briefly outlined in part 1 above on domestic law, we are working on the assumption that withholding or termination of treatment, even life-sustaining one, with regard to a minor patient who lacks capacity to make his or her own decisions is not just legally permissible, but also morally and ethically acceptable. Obviously, each case depends on its own specific circumstances and procedures, but unless we admit that at least sometimes it is morally and ethically justified to let a patient die, there is not much more to discuss. The examples shown above in part 2, without attempting to conduct a worldwide overview, suggest that in the practice of several countries the principle is accepted in ethical rules guiding the medical profession. Nevertheless, this initial and most critical choice is not intrinsically legal, but rather based on how the society as a whole wants to approach this sensitive topic. Provided that we indeed accept this principle, we may then contemplate how to best regulate the relevant issues by national law. First of all, both the binding and non-binding (recommendatory) documents typically emphasise the desirability of consensus among all relevant actors, in particular health professionals and the patient’s family members. If there is such consensus, it is not necessary from the international perspective to involve a court. The same conclusion was reached by the United Kingdom Supreme Court. As put by Lady Black: “I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement (…) to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before [clinically assisted nutrition and hydration] can be withdrawn. If the provisions of the [Mental Capacity Act] 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. (…) [A]lthough application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases .“ 46 This decision was adopted in the context of an incapacitated adult, but there is no fundamental reason to treat minor patients differently. After all, the vulnerability of an unconscious adult and of a little child is comparable for most practical purposes. An important observation is that while judicial decision may not be compulsory, it may be desirable for legal certainty and prevention of subsequent lawsuits against the involved health professionals and institutions. Despite consensus being obviously preferable, a clear mechanism for resolution of any disputes is appropriate. After all, lack of a specific procedure for resolution of conflicts will not make them disappear. Whether such mechanism should be arranged as a matter of public or private law 47 is a question without a single best answer. The case of Mr. Lambert, mentioned above, was one dealt with by French administrative courts; the English cases of Charlie Gard and Alfie Evans were considered by the Family Division of the High Court. The European Court of Human Rights’ case law does not attach any particular significance to the exact avenue by which an issue reaches the judiciary. It rather emphasises that the procedure set 46 Judgment of the Supreme Court of 30 July 2018, An NHS Trust and others v. Y and another , [2018] UKSC 46, paragraph 126. 47 Although even private-law cases will be handled by courts, which derive their authority from public law.

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