Posted on October 3, 2019 at 11:12 AM
by Dominic Wilkinson
Disputes between parents and doctors are back in the media. This morning, in the case of Tafida Raqeeb, the court concluded that her parents should be allowed to take her to Italy for continuing intensive care.
In Tafida’s case, the court found in favour of her parents and against the doctors treating her. That might help address concerns in the minds of some that the courts are biased against parents, and in favour of health professionals.
However, some may still be concerned that the UK legal approach to disagreements is the wrong one. Of relevance, in the next couple of weeks, a Labour politician is planning to put forward a law to the Commons – the Children (Access to Treatment) Bill, otherwise known as ‘Charlie’s law’. (See this separate guest post for a press release from Bambos Charalambous, MP).
One of the key elements of Charlie’s Law is the suggestion that courts should only prevent parents from pursuing treatment (that reputable doctors are willing to provide) if the proposed treatment would be harmful to the child.
The central idea behind this proposal is the sound ethical principle that states and courts should only intervene in parents’ decisions about their children if those decisions cross a certain threshold level of harm. Elsewhere in life, we do not think that health professionals or teachers or social workers or lawyers are justified in overruling parents each time that parents make decisions that others disagree with or consider suboptimal. Parents are permitted to make decisions that balance their own interests, those of other children, their own values with those of the child. But they are not permitted to make decisions that would pose a significant risk of serious harm to the child.
The current legal test, in cases of disagreement about medical treatment, is not based on a harm threshold, rather it is based on “best interests”. Where doctors and parents disagree, the court, drawing on what is called its “inherent jurisdiction” reaches an independent view about what would be best for the child.
However, as the case of Tafida Raqeeb makes clear, courts and health professionals already draw heavily on concepts of harm when they are considering these cases. In his decision about Tafida, Justice MacDonald placed very significant emphasis on the fact that she was not in pain, and the proposed treatment did not impose a significant burden on her. What is more, he placed significant weight on the views and values of her parents. In contrast, the doctors treating Tafida were concerned about the harms of continued treatment.
There are good reasons to focus ethical attention, in cases of disputed treatment, on whether or not requests for treatment would be harmful. It remains an open question, whether a change in the legal test would avoid cases like Tafida’s from going to the court, or, if it did, whether the decisions would be any different.