This article critically examines the legal arguments presented on behalf of Charlie Gard’s parents, Connie Yates and Chris Gard, based on a threshold test of significant harm for intervention into the decisions made jointly by holders of parental responsibility. It argues that the legal basis of the argument, from the case of Ashya King, was tenuous. It sought to introduce different categories of cases concerning children’s medical treatment when, despite the inevitable factual distinctions between individual cases, the duty of the (...) judge in all cases to determine the best interests of the child is firmly established by the case law. It argues that the focus should not have been on a threshold for intervention but on whether his parents had established that the therapy they wanted was a viable alternative therapeutic option. In the April hearing, Charlie’s parents relied on the offer of treatment from a US doctor; by July they had an independent panel of international experts supporting their case although by this time the medical evidence was that it was too late for Charlie. One of Charlie’s legacies for future disputes may be that his case highlighted the need for evidence as to whether the treatment parents want for their child is a viable alternative therapeutic option before a court can determine which therapeutic option is in the best interests of the child. (shrink)

This article considers proposals to reform the law in response to recent high profile cases concerning the medical treatment of children, currently before Parliament in the Access to Palliative Care and Treatment of Children Bill 2019–21. It considers the proposed procedural change, to introduce a requirement for mediation before court proceedings, and argues that dispute resolution processes should be a matter of good practice rather than enshrined in law. It argues that the proposed substantive change to determination of best interests (...) would not result in different outcomes because the best interests analysis co-exist with the legal and professional duties of doctors to children in their care. It argues that if there is to be reform of the law it needs to follow from a comprehensive review of all the issues in which the minimum standards imposed by law fit together with good practice standards and not in response to individual cases. (shrink)

In Rogers, the Court of Appeal held that the decision of Swindon N.H.S. Primary Care Trust to refuse to fund Herceptin for the treatment of Ann Rogers against breast cancer was irrational. The P.C.T. maintained that their decision was not resource driven but based on the fact that Herceptin was, at that time, not licensed by the European Medicines Agency (E.M.E.A.) for use in early stage breast cancer. Yet it was prepared to fund its use in ‹exceptional circumstances’ which could (...) only be based upon the personal situation of the patient. In this note, I focus upon the ‹exceptionality’ argument in the context of the patient as consumer of healthcare and women as carers. I argue for a focus upon caring rather than consumerism in healthcare. (shrink)