The parents of Ayesha King have been in the news this weekend (see here, for example http://www.theguardian.com/society/2014/aug/31/ashya-king-found-spain-parents-arrested ) and the parents removed their child from hospital against medical advice and took their child out of the country. The Kings were wanting a form of therapy for their son’s cancer that is not available on the NHS, and found themselves in a quarrel with the medical professionals in England, leading them to take their son out of the country. That led to a European arrest warrant being issued and the King’s being found and arrested.
I don’t want to write too much about the individual case, because it is all very real and raw and painful for this family, and we don’t have the facts that would allow us to make a proper decision about what they were doing was right or wrong.
This piece is more about the general principle of whether a parent has the right to decide what is best for their child, or whether the doctors have the final say? For an adult, they can listen to medical advice and if they are capable of understanding it are entitled to decline to follow it. The State can’t enforce medical treatment on anyone who is able to understand the consequences and who says “no thanks”. For a child, the same thing doesn’t seem to apply. A parent who understands the advice but disagrees with it, can still find themselves in Court and with an order being made authorising the doctors to carry out the treatment.
That’s a body of jurisprudence which began with the thorny issue of children of Jehovah’s Witnesses who needed blood transfusions. Their religion forbids blood transfusions, and the parents in these cases were refusing the treatment. Without the treatment, the child would die, and that led to a number of applications to the High Court, finally arriving at the accommodation that there would be no adverse religious consequences for the parent IF the transfusion happened because the Court ordered it, and that’s the way those are dealt with now. Of course, when balancing a child’s life against parental wishes, there’s likely to only be one winner.
Things got more difficult in the case of conjoined twins. The medical conclusion was that together, both would die, but if they were separated one would live and one would die. The parents for moral and religious reasons were not prepared to sanction the treatment. The case went up to the Supreme Court and is probably one of the most difficult decisions ever made. The Court were particularly in difficulty with article 2, the right to life. The Court is bound by article 2 and has to uphold it, but a determination that the operation would go ahead would kill one of the twins where a refusal of the operation would probably kill both.
Re A (children) 2000
The Court sanctioned the operation and overrode the parents objections, although they were intelligent, rational people who understood the risks and consequences but were of the view that every day of life for their children was precious and they did not want to shorten that, even if it might save one of the twins. There are some commentators (myself included) who consider that the Court here got into tricky waters – if a parent is the person who are capable of exercising decisions for their child and they are choosing between two dreadful outcomes (as opposed to blood transfusion or die) then shouldn’t the State respect their decision?
Difficult cases make bad law, so they say. But these two cases were clearly about where failure to act would result in death, and perhaps the Court is entitled to intervene. The problem for me is that once you start down a road of the State being in charge in situation X, along comes situation Y, not as bad but still one where the State wants to intervene, and a slippery slope begins.
If there’s a life-saving treatment and the parents are refusing it, then Re A (children) 2000 is probably authority for the State taking over the decision. But what about where the treatment is not going to save life or cure the illness, but instead prolong life, perhaps with reduced quality of life?
In 2012 there were a couple of cases where parents did not want their child to undergo chemo-therapy and sought alternative treatments. This is not an easy thing to contemplate, and people’s views on it tend to be very polarised – between the parents are parents and they can do what they think is right, to any parent would follow medical advice and get their child the help they need.
There were a spate of these cases in 2012, and I wrote about one where the High Court dealt with this issue extensively (the mother wanted to pursue alternative treatment and the father originally agreed but by the time of the Court hearing had come round to supporting the medical professionals)
NHS Trust v SR 2012
It is worth noting in that case that the Court was effectively resolving a dispute between mother and father as to type of treatment, which is a pure Children Act 1989 decision – specific issue order, the Court’s jurisdiction and authority to make a decision is because there are two parents asking the Court to settle a dispute. With the King’s, that might become more complex, as both parents are in unity. If they don’t want Ayesha treated in England, it might well be that the Court is invited to borrow from Re A and NHS Trust v SR to set up that in these matters the State can intervene even though the parents understand the medical advice and choose not to follow it.
I hope that all of this gets sorted out without the need for the Court to get involved. Whatever treatment this sick boy has, he will benefit from having his parents around and their blessing.