Supreme Court stays Charlie Gard ruling further 'with considerable hesitation'

The High Court’s declaration allowing doctors at Great Ormond Street Hospital to withdraw life-support in the Charlie Gard case has been reluctantly stayed further by the Supreme Court for an additional three weeks until 10 July.

The extension is to allow the European Court of Human Rights to consider a substantive application – lodged yesterday afternoon (19 June 2017) – that UK treatment-withdrawal proceedings involving children fail to adequately protect the parents’ right to family and private life under article 8 of the European Convention on Human Rights.

‘With considerable hesitation, we direct that the judge’s declarations be further stayed for a period of three weeks, namely until midnight on 10/11 July 2017,’ the Supreme Court said in a judgment last night. Urging the Strasbourg judges to bring the matter to a close by then, the UK’s highest court added: ‘We consider at present that we would feel the gravest difficulty if asked to act yet again against Charlie’s best interests by directing an even longer extension of the stay.’

The High Court decision, upheld by both the Court of Appeal and by the Supreme Court, accepted the hospital’s assessment that any further treatment was unlikely to improve Charlie’s condition. The ten-month-old suffers from an incurable terminal condition and has almost entirely irreversible brain damage; even experimental nucleoside therapy, envisaged at an earlier stage, was deemed ‘futile’.

All three courts held that it would be in Charlie’s best interest to allow the hospital to stop providing artificial ventilation, nutrition, and hydration (AVNH), and to move him to palliative care so that he could die with dignity.

This latest judgment by the Supreme Court follows a government request for directions. ‘It is hard to over-stress the difficulty which, in this desperately painful case in which the intensity of the parents’ feelings is so entirely understandable, the prospect of yet a further stay places upon this court, upon the hospital and, of course overarchingly (and as his guardian submits), upon Charlie himself,’ the court said in opening remarks.

In its review of the proceedings, the court noted that there had not been any suggestion in the High Court that a relevant test might be whether the harm suffered by Charlie was ‘significant’. However, it went on, this suggestion was made to the Court of Appeal after it said it was clear that the High Court considered the harm ‘significant’.

In thinly veiled criticism of the ongoing attempts to delay the effect of the original ruling, the Supreme Court said the successive stays ‘have obliged the hospital to take a course which, as is now clear beyond doubt or challenge, is not in the best interests of Charlie’.

‘The hospital finds itself in an acutely difficult dilemma: although the stays have made it lawful to continue to provide him with AVNH, it considers it professionally wrong for it to have continued for over two months to act otherwise than in his best interests.’

Would granting a further stay, the court wondered, ‘in some sense be complicit in directing a course of action which is contrary to Charlie’s best interests’.

The court eventually acceding to the family’s request, but expressed frustration at what appeared to be a lack of cooperation on the part of the parents’ lawyers. Although the case before the ECtHR is brought against the UK, the Supreme Court had asked Richard Gordon QC, counsel for the family, that all documents before the Strasbourg court be circulated to the hospital and Charlie’s guardian.

This was initially refused on the basis that it would breach confidentiality, it seemed. ‘Within seconds, however, good sense had apparently prevailed and the assurance was given. Today’s stay is conditional on full compliance with it,’ the court concluded.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg