Monday, 23 October 2017
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claireedgar

September 2017

Family Law: Medical Care, Your Rights And Who Decides?

Claire Edgar discusses the legal realities for parents who disagree with treatments recommended by health professionals...

Caring for a sick child comes with the territory of being a parent. From teething, to the latest stomach bug to hit the school playground, all of us will have spent many a sleepless night nursing a crying child, trying our best to comfort them and wishing that there was something more we could do to make them feel better.

Thankfully for most of us, a child’s sickness is fleeting – coughs are soon replaced by chuckles, and peace (as well as sleep!) returns to your home. However, for parents faced with looking after a seriously or chronically ill child, life is much more challenging.

There is no better example of the difficulties faced by parents of a chronically ill child than the recent case involving 11-month-old baby Charlie Gard. Charlie suffered from a rare genetic condition called Mitochondrial DNA depletion syndrome. Charlie’s parents Chris Gard and Connie Yates wanted to take their son to the USA to undergo a therapy trial there however medical staff at Great Ormond Street believed it was kinder for brain-damaged Charlie to be given end-of-life care and that he should not be taken to the US for experimental treatment, despite his parents’ wishes.

A five month legal battle in both the UK and European Courts ended in July when Charlie’s parents withdrew their application to take their son to America for treatment after admitting damage done to the 11-month-old’s muscle and tissue was “irreversible”. Charlie died when his life support machine was switched off on Friday, July 28, exactly a week before his first birthday on Friday, August 4.
The case involving Charlie and his family highlights the difficulties faced when parents and doctors are at loggerheads as to the best way to medically treat a child. It begs the question: Who should have the ultimate authority when it comes to deciding what is best for a child in terms of medical care?

In Northern Ireland, parents or relatives with ‘parental responsibility’ of a child have the right to consent to medical treatment on behalf of that child, provided the treatment is in the best interests of the child.

‘Parental responsibility’ is a term used in law to refer to the rights, duties, powers and responsibilities that most parents have in respect of their children. There are various ways in which parental responsibility can be acquired both by biological parents and other relatives.
In the vast majority of cases, both the parents and the medical professionals treating a child will be in agreement as to the best course of treatment for a child. Furthermore in practice, doctors are reluctant to override a parent’s strongly held views, particularly where both the advantages and disadvantages of treatment are finely balanced and it is unclear as to what is in the child’s best interests.  

However, occasions do arise where health professionals and parents do not agree on what is the best course of treatment for a child. So what happens then?

Where a doctor believes that a child’s parents are following a course of action which is contrary to the child’s interests, they can seek the Court’s adjudication on what is best for the child; meanwhile they will provide only emergency treatment to the child to preserve life or prevent serious deterioration in their condition.

Likewise, should parents wish a child to have treatment which a doctor feels is inappropriate, they can issue Court proceedings and ask the Court to decide what is in the child’s best interests.
When considering all cases of this nature, the Court shall have regard to the human rights of both the parents and child. Ultimately, however, the Court will consider the child’s welfare as the paramount consideration. As such, it is unlikely that parents would be permitted by the Court to proceed with treatment which is deemed inappropriate or to refuse treatment which is in the child’s best interests. For example, where a child requires a blood transfusion to treat a serious illness, the refusal to agree to this treatment by a parent who objects because of their beliefs as a Jehovah’s Witness is unlikely to be deemed by the Court to be in the child’s best interests.

It goes without saying that in the event of a dispute between parents and medical professionals, all possible alternatives should be discussed thoroughly between the parties in an effort to reach an agreement before seeking the Court’s intervention.

Sympathetic and sound legal advice during this challenging time can help support parents make difficult decisions in their child’s best interests.

Claire is an accredited collaborative lawyer and family mediator. If you have any queries regarding any area of family law you can contact Claire at Francis Hanna Solicitors on Tel: 028 9024 3901 or email cedgar@fhanna.co.uk

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