Charlie Gard: In Defence of the Law

44 Journal of Medical Ethics 476-480

13 Pages Posted: 12 Dec 2018

See all articles by Eliana Close

Eliana Close

Queensland University of Technology

Lindy Willmott

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Date Written: 2018

Abstract

Much of the commentary in the wake of the Charlie Gard litigation was aimed at apparent shortcomings of the law. These include concerns about the perceived inability of the law to consider resourcing issues, the vagueness of the best interests test and the delays and costs of having disputes about potentially life-sustaining medical treatment resolved by the courts. These concerns are perennial ones that arise in response to difficult cases. Despite their persistence, we argue that many of these criticisms are unfounded.

The first part of this paper sets out the basic legal framework that operates when parents seek potentially life-sustaining treatment that doctors believe is against a child’s best interests, and describes the criticisms of that framework.

The second part of the paper suggests an alternative approach that would give decision-making power to parents, and remove doctors’ ability to withhold or withdraw life-sustaining treatment that they regard is futile. This proposal is grounded in several values that we argue should guide these regulatory choices. We also contend that the best interests test is justifiable and since the courts show no sign of departing from it, the focus should be on how to better elucidate the underlying values driving decisions. We discuss the advantages of our proposed approach and how it would address some of the criticisms aimed at the law.

Finally, we defend the current role that the judiciary plays, as an independent state-sanctioned process with a precedent-setting function.

Suggested Citation

Close, Eliana and Willmott, Lindy and White, Ben, Charlie Gard: In Defence of the Law (2018). 44 Journal of Medical Ethics 476-480. Available at SSRN: https://ssrn.com/abstract=3256044

Eliana Close

Queensland University of Technology ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Lindy Willmott

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

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