england-and-wales medical children
Charlie Gard versus Christopher Kerner
<p>I am finding the answer by Dale M. to <a href="https://law.stackexchange.com/questions/19905/why-was-the-nhs-able-to-prevent-charlie-gards-parents-from-taking-their-child-t">this question</a> trying.</p>

<p>The German pop singer Nena (in much of the world a one-hit wonder but enduringly popular in German-speaking countries) gave birth to a son when she was 28. He died at the age of 11 months, remaining in a hospital until shortly before his death. I've read Nena's written account of the matter, that I think was about 30 pages long. When she was displeased with the way a doctor was treating her and her son, she informed him that she had decided to take him to a different hospital. If I decide to post something here on this page and someone disagrees with my decision to do so, that disagreement does not result in a lawsuit; rather I may disregard it and post here. Similarly no lawsuit occurred in Nena's situation; she told the hospital of her decision and carried it out.</p>

<p>None of the news media coverage that I saw ever once said explicitly that there was some legal impediment to Charlie Gard's parents doing just what Nena did. The answer to the linked question said there was a dispute and therefore a lawsuit. But any disagreement over whether I should post here doesn't result in a lawsuit, and Nena's decision didn't either. So we are left to surmise that at the very least either <b>(1)</b> the hospital or someone else unlawfully forcibly prevented the parents from taking their child to America or <b>(2)</b> the law forbade them to do it.</p>

<p>But that should not be left to surmise. Can someone explicitly confirm this? And if the second alternative is right, can someone say what that law says?</p>

<p>(The subject line "Charlie Gard" was not long enough for stackexchange's robots that regulate posting; the additional name is that of the German patient.)</p>

<h2>Different legal traditions</h2>
<p>There is the obvious distinction that one decision was under German law and the other under English law. England is a <a href="https://en.wikipedia.org/wiki/Common_law" rel="nofollow noreferrer">Common Law</a> country, Germany is is a <a href="https://en.wikipedia.org/wiki/Civil_law_(legal_system)" rel="nofollow noreferrer">Civil Law</a> country.</p>
<h2>Civil Law</h2>
<blockquote>
<p>Civil law, civilian law, or Roman law is a legal system originating in Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are <a href="https://en.wikipedia.org/wiki/Codification_(law)" rel="nofollow noreferrer">codified</a> into a referable system which serves as the primary source of law. This can be contrasted with common law systems whose intellectual framework comes from judge-made decisional law which gives <a href="https://en.wikipedia.org/wiki/Precedent" rel="nofollow noreferrer">precedential</a> authority to prior court decisions on the principle that it is unfair to treat similar facts differently on different occasions.</p>
<p>Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law to be secondary and subordinate to statutory law.</p>
</blockquote>
<p>In principle, in a civil law country there exists a definitive code of laws that can be examined to determine the legal consequences of any given action.</p>
<p>I don't know enough German law to know what the probable outcome of Charlie's case would be if brought under German law.</p>
<h2>Common Law</h2>
<p>Common law countries are not so straightforward:</p>
<blockquote>
<p>In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a &quot;matter of first impression&quot;), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision).<a href="https://en.wikipedia.org/wiki/Standing_(law)" rel="nofollow noreferrer">5</a> The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges,<a href="https://en.wikipedia.org/wiki/Standing_(law)" rel="nofollow noreferrer">7</a> stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch.</p>
</blockquote>
<p>In a common law country it is not enough to look at the laws and regulations that have been promulgated; you must also look at the cases that have been decided about them.</p>
<h2>Equity Law</h2>
<p>To further complicate things, England had 2 parallel court systems until the 1870s when the courts were fused <em>but the legal traditions weren't!</em> To this day in England there are two quasi-independent stands of law: common law (not to be confused with the same phrase when used to apply to the whole system) which was administered by the central royal courts and <a href="https://en.wikipedia.org/wiki/Equity_(law)" rel="nofollow noreferrer">equity</a> which was administered by the Court of Chancery. To bring an action at common law a plaintiff needed a <a href="https://en.wikipedia.org/wiki/Form_of_action" rel="nofollow noreferrer">Form of Action</a>, a very narrow and restrictive reason to bring a case. Because of this, the common law could sometimes lead to unjust outcomes where a potential plaintiff had clearly been wronged but had no legal redress: equity law filled this gap.</p>
<h2>Injunctions</h2>
<p>One of the remedies available under equity is an <a href="https://en.wikipedia.org/wiki/Injunction" rel="nofollow noreferrer">injunction</a>: a court order requiring (or prohibiting) something to be done (or not be done) by someone. These are issued when a plaintiff would be harmed by the defendant's (in)action and monetary damages would not be adequate compensation. These can also be issued in <em>anticipation</em> of unlawful conduct by the defendant i.e. to prevent that harm occurring in the first place - this type of injunction is common in (domestic) violence cases to such an extent that their use has been legislated (codified).</p>
<h2>Why is the court involved?</h2>
<p>The <a href="https://www.judiciary.gov.uk/wp-content/uploads/2017/05/gosh-v-yates-and-gard-20170411-1.pdf" rel="nofollow noreferrer">judgement</a> itself addresses this at paragraph 36:</p>
<blockquote>
<p>Some people might ask why the court becomes involved at all, why should the parents not be the ones to decide? A child’s parents having parental responsibility have the power to give consent for their child to undergo treatment, but overriding control is vested in the court exercising its independent and objective judgment in the child’s best interests. This principle has been enunciated in many cases over the years, including by Ward LJ in Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR at p.480.</p>
</blockquote>
<p>In the Charlie Gard case, his parents had proposed a course of action that the hospital believed was not in the best interests of Charlie. The hospital is entitled to petition the court for an injunction prohibiting Charlie's parents perusing their proposed course of action and allowing them to withdraw life support. There is precedent that a hospital has <a href="https://en.wikipedia.org/wiki/Standing_(law)" rel="nofollow noreferrer">standing</a> to bring the case.</p>
<p>While the case was being heard it would be normal procedure for an interim injunction to be issued maintaining the status quo. This is referred to in paragraph 31:</p>
<blockquote>
<p>I also made an order on that date that the applicants should generally furnish such treatment and nursing care as may be appropriate to ensure that Charlie suffers the least distress and retains the greatest dignity consistent, insofar as possible, with maintaining life until the final hearing.</p>
</blockquote>
<p>Breaching a court order is a serious crime.</p>
<p><a href="https://www.judiciary.gov.uk/wp-content/uploads/2017/05/gosh-v-yates-and-gard-20170411-1.pdf" rel="nofollow noreferrer">Judgement</a></p>
<p>Please take the time to read the judgement of first instance by MR. JUSTICE FRANCIS. The orders he gave are:</p>
<blockquote>
<p>(1) That Charlie, by reason of his minority, lacks capacity to make decisions regarding his medical treatment;</p>
<p>(2) that it is lawful, and in Charlie’s best interests, for artificial ventilation to be withdrawn;</p>
<p>(3) that it is lawful, and in Charlie’s best interests, for his treating clinicians to provide him with palliative care only; and</p>
<p>(4) that it is lawful, and in Charlie’s best interests, not to undergo nucleoside therapy provided always that the measures and treatments adopted are the most compatible with maintaining Charlie’s dignity.</p>
</blockquote>
<p>While not explicitly named, this is an injunction.</p>

<p>Honestly, in this case, I'm not sure that there are material differences between common law and civil law systems or law v. equity, so much as there are differences between particularly countries regarding how child welfare is protected when there is a concern that a parent is acting in a way that harms a child's welfare under relatively recently adopted statutes.</p>

<p>It may also have to do with how the post-WWII health care systems were designed in each country (the UK system is centralized socialized medicine that gives government more control, the German system is one of mandatory health insurance that makes the government role more indirect). </p>

<p>It is quite possible that the underlying rule of law that gave the hospital standing in the Charlie Gard case - that a doctor must approve a discharge plan for an hospital inpatient for that patient to lawfully leave the hospital - may be the same in both case. </p>

<p>I also strongly suspect that a German court could have issued the moral equivalent of the injunction in the Charlie Gard case (perhaps vesting temporary guardianship of the child in the hospital or a third party) in the right circumstances if the right person asked the right court in Germany to do so (I'm not certain precisely who would have standing or which court would have jurisdiction, although I suspect that the circumstances that could trigger this kind of action would be very similar). So, the existence of injunction law in common law countries under the equity jurisprudence of their general jurisdiction courts may not explain the difference either.</p>

<p>The differences between the way that the two cases played out could easily boil down to the views of the parents and hospital officials in each case, the child's condition in each case, and the proposed discharge plan in each case, rather than to differences in the law between German and England. </p>

<p>A critical part of the Charlie Gard case, as I understand it, was the hospital official's belief that the proposed treatment was quackery and would cause unnecessary pain to the child in a futile effort. This factor may have been absent in the Kerner case, where it sounds like a parent simply sought to seek palliative care at home in lieu of further cure oriented treatment in a marginal case for further cure oriented treatment.</p>

<p>In particular, the U.S. doctor who was identified as the person who would provide care to Charlie Gard stated after reviewing his medical file that:</p>

<blockquote>
  <p>“Seeing the documents this morning has been very helpful. I can
  understand the opinions that he is so severely affected by
  encephalopathy that any attempt at therapy would be futile. I agree
  that it is very unlikely that he will improve with that therapy. It is
  unlikely.”</p>
</blockquote>

<p>It isn't clear that there was any such negative testimony regarding the proposed course of treatment in the Kerner case.</p>

<p>The news coverage of this left me with an impression that the parents sued. So I wondered if some law in England forbids parents to withdraw their child from a hospital to take him to seek medical treatment elsewhere. News reports never said there is such a law, and so I thought they were acting as if that was something everyone already knew. Wikipedia's article about the case had a lead section that said there was a disagreement and therefore a lawsuit. That left me with the same impression: They are omitting to inform us of a law of that sort in England, acting as if we already know that.</p>

<p>Delving further into the article I finally found an assertion that it was the hospital, not the parents, who sued. That was also not mentioned in news reports nor in the lead section of the article. That is a crucial piece of information without which the news reports and the lead section of the article cannot be understood. So normally the parents do have a legal right to decide, but the court took that from them.</p>

<p>In posted answers here, I find a discussion of common-versus-civil-law without any mention of that essential fact.</p>

<p>I have now edited the Wikipedia article's lead section so that it says:</p>

<blockquote>
  <p>In February, the Hospital asked the High Court to override the parents' decision.</p>
</blockquote>

<p>And so the article becomes comprehensible.</p>

<p>Under the <a href="http://www.legislation.gov.uk/ukpga/1989/41/section/3" rel="nofollow noreferrer">Children Act 1989</a>, §3(5):</p>

<blockquote>
  <p>A person who—</p>
  
  <p>(a)does not have parental responsibility for a particular child; but</p>
  
  <p>(b)has care of the child,</p>
  
  <p>may (subject to the provisions of this Act) do what is reasonable in
  all the circumstances of the case for the purpose of safeguarding or
  promoting the child’s welfare.</p>
</blockquote>

<p>This enables the hospital to act in the child's interest (without legal prejudice to the parent's position), and precludes unilaterally shopping for treatment elsewhere, pending a legal determination. (Note the prior <a href="https://en.wikipedia.org/wiki/Ashya_King_case" rel="nofollow noreferrer">Ashya King case</a> where the parents smuggled their child out of the hospital and took him to Spain: and got arrested). </p>

<p>In light of this difference of opinion between the parents and the hospital, as reported in <a href="http://www.bailii.org/ew/cases/EWCA/Civ/2017/410.html" rel="nofollow noreferrer">the appeals court ruling</a>:</p>

<blockquote>
  <p>The doctors who are treating Charlie, who had themselves contemplated
  the same alternative treatment when he was first in their care in the
  autumn of 2016, have, following a significant decline in the level of
  his brain functioning in January 2017 firmly concluded that there is,
  effectively, no chance of Charlie now benefiting from its effects. The
  parents do not agree with the advice that Charlie’s treating
  clinicians have given.</p>
  
  <p>In the light of the dispute as to Charlie’s future treatment the NHS
  Foundation Trust for Great Ormond Street Hospital for Children, where
  Charlie has been an in-patient since October 2016, <em>issued an
  application in the Family Division of the High Court on 24 February
  2017</em> seeking a declaration that it was lawful and in Charlie’s best
  interests for artificial ventilation to be withdrawn and for his
  treating clinicians to provide only palliative care for him. They also
  sought a declaration that it was lawful and in the child’s best
  interests “not to undergo nucleoside therapy” (being the alternative
  therapy favoured by the parents).</p>
</blockquote>

<p>In other words, from 24 Feb, there were competing legal claims as to the child's best interest, which the courts may make a decision about pursuant to <a href="http://www.legislation.gov.uk/ukpga/1989/41/section/31" rel="nofollow noreferrer">§31 of The Children Act</a>, and where the hospital submitted a conventional plan for treatment (withdraw life support, limit treatment to palliative care): see the appellate judgment para 116 ff. Subsequently, the parents appealed the decision. Note in the <a href="http://www.bailii.org/ew/cases/EWHC/Fam/2017/972.html" rel="nofollow noreferrer">earliest decision</a>, the hospital is the applicant and the parents the respondents.</p>
