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10 May 18

The Case of Alfie Evans – Is There A Better Way?

May 10, 2018

In the aftermath of the death of Alfie Evans, Kate Williams provides an overview of how the case progressed, the principles behind the decisions made in the Courts and an analysis of what lessons might be learned from them.

Cases like those of Charlie Gard and Alfie Evans are, of course, tragedies for all concerned and understandably attract a significant degree of press attention, as well as eliciting sympathy and opinions from people across the globe. Although what is right and wrong in such cases is the subject of frequent debate, the legal principles are very clear and well-established. The case law has determined that parents do not have an unfettered right to treatment for their child when that treatment is deemed not in the child’s best interests. In extreme circumstances, such as in these cases, it has even been found to be in a child’s best interests to be allowed to die, rather than to continue with treatment which is “futile”.

The English court has an inherent common law jurisdiction over children in these cases. It also has a statutory jurisdiction under the Children Act 1989. Both jurisdictions are governed by the principle of acting in the child’s best interests. This principle has been repeatedly found to concur with similar concepts applied by the European Court of Human Rights.

A clear legal principle is one thing, but a value judgement on what the patient’s best interests actually are may be more difficult to reach. In both the Charlie Gard and the Alfie Evans cases, the evidence presented by the treating doctors was overwhelmingly in favour of withdrawing treatment, but these decisions are not taken lightly by the Courts. In Alfie’s case, the judge took no fewer than seven days to hear all the evidence; went to see Alfie in hospital; ordered that new MRI scans be taken to ensure all the medical evidence was up-to-date; recalled a witness so he could see a video of Alfie; and he took careful account of the views of the parents (who are both Catholics) on the sanctity of life. In the end, he concluded that continued ventilation would compromise Alfie’s future dignity and that it was in his best interests that it be withdrawn.

In both cases, opinions were also offered by doctors from other countries, opinions which gave the parents cause for hope. In Charlie Gard’s case, a doctor who had neither seen nor examined him nevertheless offered him treatment in America. In Alfie Evans’ case, opinions were sought by the family from doctors based in Italy, Germany and Poland. The Italian doctor gave an opinion based on full examination and with the benefit of seeing Alfie’s records, but two of the other doctors in particular were criticised by the Court for attending Alfie on the ward without the knowledge of the hospital, and then giving their opinions without having seen the records. On another occasion, Alfie’s father attended the ward in the company of a doctor and an air ambulance crew who had travelled from another country, in an attempt to remove him from the hospital. The resulting confrontation required the presence of the police and inevitably caused consternation to staff and patients.

It has since been said that these distressing cases should not be decided in the stress and glare of the court room, although it should be acknowledged that, in Alfie’s case, the Court of Appeal particularly commended Alder Hey for its efforts to find a consensus through independent medical reviews and expert mediators. Calls have been made for increased use of mediation between parents and doctors so as to mitigate the sense of fear and mistrust families might experience (and recognising their potential sense of vulnerability if they feel they are facing the weight of the medical establishment) and improve the prospects of a consensus.

The likely reality is that, even with clear legal principles in place and with increased use of mediation, in such sensitive personal circumstances for the families involved and with such intense media scrutiny, consensus may not be achievable in all cases. The courts are likely to continue to have to intervene from time to time, tasked with the unenviable burden of telling anguished parents on one hand, and doctors caring for their patient on the other, what the best interests a tragically ill child are.

Kate Williams is a Consultant at Eastwoods Solicitors Ltd.