Parental Rights, Best Interests and Significant Harms: Medical Decision-Making on Behalf of Children Post-Great Ormond Street v Gard (edited by Imogen Goold, Jonathan Herring and Cressida Auckland, Hart Publishing, 2019, hardback and PDF, c£60.00)
As Victoria Butler-Cole QC notes in her foreword to this collection, decisions that parents have to confront about medical treatment in in relation to children can pose enormous questions: “can life ever be worse than death? When does the provision of life-sustaining treatment turn into the prolongation of death? If it was right to provide treatment three months ago, last week, yesterday, why is it wrong to provide it tomorrow?” It is not surprising that answering such questions can lead to disagreement between parents and doctors, which, if not resolved by way of discussion, negotiation or mediation, must ultimately be resolved by the courts. In recent years, and prompted in particular by the case of Charlie Gard, there has been a push in different quarters (including in Parliament in the form of a short-lived proposed amendment to the Mental Capacity (Amendment) Bill) to change the threshold at which the court should be entitled to make the decision about treatment where parents and the treating team cannot agree. In particular, the proposal is that, where there is a choice of treatment, it should fall to parents rather than the courts or doctors to make this choice. The principle underlying that proposal is that parental discretion in relation to their children should be safeguarded unless the exercise of that discretion would put the child at risk of significant harm (i.e. the same threshold to the exercise of state power in care proceedings).
In this important collection, the editors bring together a range of perspectives, including clinical, legal and philosophical, with a view to informing the debate as to whether the law should change. Crucially, it is a book that has a real chance of informing that debate because of the way in which the editors have approached their task, from choosing the contributors, to the process of developing the work (including the convening of a workshop to bring them together), and then in the editorial work that they have done in pulling the contributions together. The book serves as an extremely useful snapshot of how things actually are in practice (for instance in Imogen Goold’s evaluation of the ‘best interests’ test currently applied by the courts, Giles Birchley’s chapter on the view from the clinic or Rob George’s chapter on the legal basis of the court’s jurisdiction to authorise medical treatment of children) which allows the reader then to test for themselves what change might look like (most clearly then set out in Dominic Wilkinson’s chapter providing a defence of a ‘conditional harm’ threshold for paediatric decision-making).
The contributors come from different places, both literally and metaphorically, and do not share the same viewpoints, but, crucially, the editors have guided the process so as to the essays refer back and forth to each other rather than ploughing the furrow of the particular interests of the author in question. The end result has something of the flavour of a debate in the House of Lords – respectful (a quality that cannot be over-praised, especially in relation to such contentious issues), thoughtful, informed, but above all aware that the debate matters and is not purely of academic interest. One would hope that if (or when) a version of Charlie’s Law does appear in Parliament this collection will make its way into Hansard in multiple places as cited in the actual debates.
The authors and editors will, I hope be forgiven if I use this review to ride three hobby-horses.
The first is a relatively minor one, namely that High Court judges are known as “Mr Justice,” “Ms Justice” or “Mrs Justice,” not (as here, and curiously, seems to be the feature of most academic legal works) “Justice,” a title which grates with practising lawyers – or at least this one.
The second is that it seems to me that “best interests” as a term is one that is continuing to shift in relation to children at common law, informed by the approach taken in relation to the term in the Mental Capacity Act 2005. In particular, it seems to me that, in a way perhaps not fully reflected in this book, the approach has increasingly been infused by the approach of ‘standing in the shoes of the patient’ that is now the central tenet of medical decision-making under the MCA (although, for the limits in relation to very young children, see the interesting discussion in the case of Tafida Raqeeb, decided after this book went to press, a case which also has important observations on the concept of futility which Cressida Auckland discusses in the volume).
The third – linked – observation is that the debate about the law in this area is informed by the hugely emotive cases about young children. But the legal framework in question applies to age 16 (unless the child is Gillick competent) and, at least notionally, to age 18. As I have set out here, it is far from obvious that the issues are the same post-16 – perhaps it is time to consider undertaking an equivalent multi-disciplinary stock-take in relation to older children?
[Full disclosure: I am grateful to the publishers for providing me with a review copy of this book. I am always happy to review works in or related to the field of mental capacity, health and mental law (broadly defined)]