Before the UK Supreme Court, attorneys for the
Great Ormond Street Hospital argued that the Charlie Gard case is not unique. On the one hand, they are correct. British courts have adjudicated dozens of medical futility conflicts, many of them involving children. On the other hand, the GOSH lawyers are incorrect. This case has two distinguishing features.
First, Charlie’s parents argue that the best interest standard is the wrong standard to apply in these cases. The scope of parental rights is broad and they contend that a best interest test is not sufficiently respectful of parental rights. Instead, Gard’s parents argue that parents may make any decision for a child, so long as it does not cause “significant harm.” Of course, they are forced to make this argument, because the appellate courts will defer to the trial court’s judgment that the treatment at hand is not in Charlie’s best interest. Charlie’s parents must make a legal argument that the judge applied the wrong standard.
Second, this case denied Charlie transfer to a willing and available provider. This is remarkable. In most medical futility conflicts, the hospital simply wants the court to give it permission to stop life-sustaining treatment. Clinicians at the treating hospital do not want to administer the interventions the parents or surrogate want. But clinicians at the treating hospital normally do not seek to prevent other clinicians at other facilities from providing the disputed treatment. Normally, if there is another willing provider, then transfer of the patient is the preferred method of dispute resolution.
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.