At last I have plucked up the courage to read the Charlie Gard judgements.
Let me say first that I am convinced that all who have been involved in this tragic case have approached it with the highest of motives. The doctors and judges who think Charlie should be allowed to die honestly think he would be better off dead than alive. Nothing I say should lead anyone to believe that I despise those doctors and judges. I know they have all had endless sleepless nights as they have agonised over what should be done for Charlie. Their only concern has been his welfare. But that does not mean they have come to the right decision.
The facts can be set out briefly. Charlie suffers from a condition which has led to massive brain damage. He is only alive because machines stop him from dying. His doctors have concluded, on entirely reasonable grounds, that there is no treatment which could improve his lot in life. They think the machines should be turned off and he should be allowed to die. His parents, however, are determined that he should be given one last chance. A reputable American doctor is prepared to give him a novel form of treatment which, so the doctor says, is unlikely to work, but might just do so. The parents have raised enough money, over £1M, to pay for the American treatment. But the English doctors think the chances of success are tiny. They say it is not in Charlie’s best interests that he should go to America for the treatment. He should, instead, die in England. They do not say that he is in pain. They do not say that the American treatment would cause him any harm. They just think it would be futile. They have therefore applied to the English courts for orders, in effect, prohibiting the parents from taking Charlie to America for treatment and permitting them to turn off his life supporting machines.
So far, claiming they are acting in Charlie’s best interests, the judges have gone along with the English doctors. They think Charlie is better off dead than undergoing treatment which has a very low (close to zero they say) chance of success.
The judges have applied the law, mostly judge-made law, impeccably (with one reservation to which I will come). They accept, and the law supports them, that the doctors are entitled to apply to the court for orders preventing Charlie’s parents from arranging treatment for him in America and permitting them to turn off his life support machine. They accept, again in accordance with the law as it has been developed, that they, not Charlie’s parents, should have the last say on whether he lives or dies. They have applied, or purported to apply, the correct legal test: Charlie’s best interests. Finally, although this bit always comes first in judgements, they profess their belief in the sanctity of human life. Their conclusion is, so far (things may change this week), that the American treatment, though it would do Charlie no harm, is, on the balance of probabilities, vanishingly unlikely to succeed and that, in those circumstances, Charlie would be better off dead than having his life pointlessly prolonged by the proposed trip to America.
Those of us who genuinely believe in the sanctity of human life could surely be forgiven for expressing grave doubts as to the judicial preference, in this case, for death rather than life. It is very tempting to say that the law should never allow doctors to make applications of this sort: if responsible parents (no one has suggested that Charlie’s are not responsible) oppose turning off life support, their opposition should always carry the day. But I don’t think that simple, and entirely understandable, opinion is right. One can certainly envisage cases in which it would be wrong to keep a child alive, by machinery, when there is absolutely no hope of recovery and where, for instance, the child is suffering unbearable pain. But Charlie’s is not such a case.
First, there is no evidence, at least no persuasive evidence (I take this from the Court of Appeal judgments), that Charlie is suffering. Secondly, there is no suggestion that American treatment would cause him pain or serious discomfort. Finally, whatever the first instance judge (whose views on this have to be accepted by the appeal courts) may think, there is a highly reputable American doctor who claims that alternative treatment might work (though I accept that, so far, he has accepted that that is unlikely).
Now I come to my one reservation about the judicial pronouncements on this case. All start with that bald assertion that the sanctity of human life is desperately important. But, having made that point, it is never referred to again. We are expected to take on trust the judges’ assurances that the sanctity of human life is at the forefront of their reasoning. I have to say, on the facts of this highly unusual case, that I find it difficult to take that on trust.
It is important, I think, to bear in mind that the sanctity of human life is not a modern invention of the Court of Human Rights. It is firmly embedded in the Common Law of England. I make that point because I am well aware that many lawyers contend that the right to life, allegedly guaranteed by the European Convention on Human Rights, includes a right to death (assisted suicide etc.). This argument, so far as I am aware, is not included in the Common Law’s insistence that the sanctity of human life is, almost, paramount. Though I daresay Charlie’s parents’ lawyers will have invoked the right to life enshrined in the Convention, they were plainly on much firmer ground in relying on the Common Law concept of the sanctity of human life. And the judges say they did what the Common Law required of them: they put the sanctity of human life, in bold, at the top of their list of matters to be taken into account.
But, surely, they can’t have done so. How could anyone, on the facts of this terribly sad case, have concluded, while believing in the sanctity of human life, that Charlie should die, that he should not be given a tiny chance of living?
The problem, I think, is that we are now almost entirely a secular country, and the sanctity of human life became a principle of the Common Law when we were a Christian country and the law assumed that Christian doctrine should always prevail. Now, many modern judges are agnostic or atheist. The modern, secular judge, who thinks anyone who believes in a Creator is round the bend, is bound to think that sanctity is a concept that has no place in our brave new world. Yes, he, or she, will say, because the law requires him to do so until some liberal Parliament provides otherwise, that he takes account of the sanctity of human life. But he does so only to prevent an appeal from his decision, not because he seriously thinks it important.
I do not want to be misunderstood. I am convinced that all the doctors and judges who think Charlie should die as soon as possible are convinced that that would be the best thing for him. They are not creatures of the devil. But neither, it seems to me, can they seriously be said to think the sanctity of human life is a notion which ought to play any part in a modern, secular world.
Charles Utley is a barrister specialising in medical negligence
