July 29th, 2017

The law and Charlie Gard: parental rights in the UK vs. the US

As expected, the announcement has come of Charlie Gard’s death:

Charlie Gard, the baby whose fate was the subject of a protracted court battle and made headlines around the world, has died, his parents have said…

They abandoned their legal battle on Monday, saying it was too late to save him. On Thursday, he was transferred to an unspecified hospice and he died on Friday, a week before he would have turned one, after having his life support systems withdrawn.

In a statement, Charlie’s mother, Connie Yates, said: “Our beautiful little boy has gone. We are so proud of you, Charlie.”

This sad and troubling case has drawn attention in the US as well, raising questions and concerns about what might happen in a similar case here. Some analogies have been made to the well-known US case of Terry Schiavo, but there were very important differences in the fact situation there that makes Schiavo a poor analogy. That case involved a battle between the husband and parents of the adult Schiavo over what her expressed wishes about end-of-life care had been. In contrast, Charlie Gard is an infant, and his case pitted his parents’ wishes against the opinions of the hospital and doctors.

A better analogy to the Charlie Gard case is that of Jahi McMath, involving a minor child and a dispute between Jahi’s family and her hospital and doctors over the definition of brain death and when life support should end. However, the McMath case was settled by an agreement between the child’s family and the hospital in which the family was allowed to take her from the hospital and continue life support.

If the Charlie Gard case had occurred in the US, however, the legal emphasis differs . In the UK, disputes between parents and doctors are brought to court under an objective best interests of the child standard. But in the United States, in similar cases the best interests “tend to be resolved in favor of parental rights,” according to Dr. John D. Lantos, director of Bioethics Center at Children’s Mercy Kansas City. And, when courts do overrule parents’ wishes in the US, they usually do so to order care over parental objections rather than the opposite.

The different legal standard in the UK was further described by Claire Fenton-Glynn, legal scholar at the University of Cambridge:

“English law…does not see parents as having the ‘right’ to make decisions on behalf of their children. The concept is called parental responsibility: That is, the parent has a responsibility to make decisions, to look after the child,” she said. “Parenthood doesn’t give them rights; parenthood gives them responsibilities.”

And lawyer and ethicist Seema Shah describes the differences between American and British law this way:

Legally, though, US courts are following the same best-interest standard as the UK, but the way it works here, at least in practice, is that “courts are deferring to parents,” Shah said.

American courts recognize that parents have values and that parents understand their children, even if this does not give parents rights to do whatever they want, Shah explained.

Still, from state to state, “there’s a lot of variability in practice,” she said.

So it seems fairly likely that, had the Gard case occurred in the US at this point, the court would have been more likely to have found for the parents. How long that will remain true is more difficult to say.

24 Responses to “The law and Charlie Gard: parental rights in the UK vs. the US”

  1. groundhog Says:

    They had declared it hopeless anyway, and the parents weren’t asking the state for increased costs of care.

    What was gained by keeping the child there?

  2. blert Says:

    You must be kidding.

    The MORE the ‘system’ is socialized — the more it must decide in favor of the state — and against the parents.

    That child was CERTAIN to be VERY expensive to the state health care system.

    I’ve even heard arguments that such a child ( saved ) would cost the lives of a hundred ordinary children — or seniors.

    The expense is THAT astounding.

  3. Molly NH Says:

    Charlie Gards parents deserve much credit for trying to change the Euro culture that says *your bettors are more qualified to make decisions then YOU are*
    Europeans are willing to have a society where people are not all equal but are separated into
    *classes*& upper class (what ever that is) calls the shots. Sadly, this is exactly the attitude that Lefties want to impose on America.

  4. neo-neocon Says:

    blert:

    WHO must be kidding?

    Where did I say otherwise? I believe the US might ultimately go the direction of Europe. So far it hasn’t, though, and we do have a different tradition. But my last sentence was meant to imply that it’s not at all clear that our parental presumption can survive the leftward drift.

  5. Matt_SE Says:

    Death panels are very real.

  6. Molly NH Says:

    Did anybody see the movie Lorenzo’s Oil ? The parents for heaven’s sake, came up with a treatment for their son’s inherited, incurable illness. The boy lacked a certain essential fatty acid or something similar and it was damaging his nervous system.
    They went to libraries and educated themselves and came up with a treatment. It s an excellent movie, if you can tolerate Susan Sarandon.

  7. Molly NH Says:

    BTW, in the UK just a couple of years ago Prince Philip who is 96, was given a coronary procedure, it must have been a by pass, I am sure regular citizens on NHS probably could not have this done if over 75 & Philip was over 90.

  8. Big Maq Says:

    @Molly NH – as I understand it, the NHS has something that is colloquially called a “meat chart”.

    I’ve had it explained to me that it results in some absurd outcomes. One example, is that if one is blind from two cataracts, only one will be treated, as the person would no longer be blind, and the “funds” from not treating the other eye could go to someone else to improve their quality of life.

    It is how they go about dividing up a fixed size, government funded pie.

    Of course, for people who hold a higher position in society, there is always an express lane – be it public or private.

  9. Big Maq Says:

    “That child was CERTAIN to be VERY expensive to the state health care system.

    I’ve even heard arguments that such a child ( saved ) would cost the lives of a hundred ordinary children — or seniors.” – blert

    Interesting angle.

  10. Molly NH Says:

    As far as the NHS needing to save money to treat ordinary children and seniors, hmmm
    I recall reading at the BBC site, that the entire NHS system (like every where) was loaded down with bureaucrats, many were nurses, who never got near an actual patient. And the UK had to hire expensive per diem nurses and nurses from other countries.
    So that *bit* about spending the money is just designed to mollify the complainers.

  11. Ymar Sakar Says:

    In both cases, judges were given power by the people to determine the cruelest out of outcomes. But the people blame the judges when it was the people that put those judges into power via “democracy”.

  12. Geoffrey Britain Says:

    In English Law; “Parenthood doesn’t give them rights; parenthood gives them responsibilities.”

    Responsibility without authority is enslavement.

  13. Geoffrey Britain Says:

    Ymar Sakar,

    “In both cases, judges were given power by the people to determine the cruelest out [most humane] of outcomes.”

    I would argue that where we’ve gone wrong is in failing to recognize that legal consequence for the convicted must be proportional to the crime.

    When consequence is disproportional, justice is betrayed. Mercy must be in balance with justice. Proportional consequence can never be “cruel and unusual punishment”.

    “But the people blame the judges when it was the people that put those judges into power via “democracy”.”

    What alternative to “consent of the governed” would you suggest?

  14. Yancey Ward Says:

    I think what happened is abundantly obvious- the NHS wasn’t going to pay for Gard’s experimental treatment (a defensible position, in my opinion) but, the people responsible for this decision weren’t content to defend that decision on a cost/benefit basis, but instead would rather defend the decision on the basis of claiming he couldn’t be saved in any case. To that kind of thinking, the worst possible outcome would be the experimental treatments success. To prevent that possibility is the only reason they fought the parents in court, and in my opinion that is nothing short of evil.

  15. Pirate's Cove Says:

    […] Neo-neocon covers the difference in parental rights between the US and UK […]

  16. Frog Says:

    The Court is an arm of the State, as is the NHS. A monstrous exercise of power against one wee little infant who was a burden to the State ONLY because the State insisted on exercising its power. There was $1.7 million raised for his transfer to the US for care, which could and should have been done months ago. Instead, a monstrosity of State power resulted, fortunately for all to see.

    Evil is afoot in the UK, pretending to be a Good. The judge was a tyrant, blathering about how tough this was for him.

  17. Richard Aubrey Says:

    Never forget that the NHS gave the family a hard time about a clergyman visiting to pray.
    It was an American clergyman. Probably the Brit clergy are afraid of getting on the Liverpool Pathway priority list.

  18. Ymar Sakar Says:

    What alternative to “consent of the governed” would you suggest?

    No human alternative is going to save people ultimately.

    Ultimately for justice to prevail, there must be a judgment seat above that of human interests. This can be called Deus Ex Machina or the Judgment of Jehovah, either way it qualifies.

    Every time the Israeli tribes complained that they should never have left Egypt, in violation of their covenant with their god Jehovah, they were sent plagues, executions, and all kinds of discipline punishments. But in a democracy, the people think only their elected leaders need punishments for failure, when in fact it is the people in need of the most chastisement.

    Rather than recommending that the people kill tyrants every 5 years, the Founding Fathers made a note that no system was going to work if the people became corrupt. Killing tyrants is nice, but many can misuse it as they did with Lincoln. And even if the tyrants are real, killing them isn’t going to regenerate the fiber of the people.

    People want to get exercised about this one incident in the UK, while ignoring the many millions of sacrifices to Lucifer and Bhaal that goes on in their own country every single month, year, etc.

  19. Ymar Sakar Says:

    They used to make cultural propaganda about religious fanatics denying medical treatment for their family, due to organized religion dogma. This was treated as a medical and social pariah.

    Babylon 5 even had an episode about it from the atheist producer, with the Westernized doctor using a treatment that wasn’t authorized, and with the religious family killing the child as a result. Not good for either side.

    I find it interesting that in the modern 21st century, the one that actually ended up denying available medical care was none other than the Left’s dystopian system that they sold as utopian, and the religious are the ones fighting for life, in which they were sold as dystopian, by the utopian system.

  20. Frog Says:

    I beg to differ with whoever was the source of blerts’ “I’ve even heard arguments that such a child (saved) would cost the lives of a hundred ordinary children — or seniors.”
    That argument is a patently and obvious malign fabrication, said by the ignorant or for the ignorant.

    Medicine is not a zero-sum game.

    Medicine in the non-socialized world does not operate by cost/benefit ratios or quality-adjusted life-years. Only in the Ezekiel Emanuel, Jonathan Gruber, Obamacare anti-Christian world into which we are being dragged, kicking and screaming. For our own good! So they say.

  21. Michael F Adams Says:

    I have a good friend who escaped nursing in the UK about ten years ago. He tells me that aids and technicians do most of the hands-on care, RN’s are supposed to supervise. This is in such contrast to Flo Nightingale’s concept of the nurse, (and BTW, Deming’s idea of an efficient factory) who was self directed, who practiced nursing as an interdependent profession. These multiple layers of management, all too familiar also to American nurses, look more efficient on paper, but cost more at every turn. There are watchers watching the watchers, each of whom must be paid, who can make errors and pass them on. Last time I was in Britain, I saw a T-shirt that said “Save the NHS. Fire an administrator.”

    Never forget just how much propaganda effort goes into making the British believe that they have the “best health care in the world.” During the wrangle over Obamacare, I read so many opinions from Brits about how heartless Americans were, to refuse to care for the poor. I replied with questions as to how much these opiners knew about Medicaid, Medicare, CHIP, various state programs designed to catch the people who might fall through cracks. Of course, they knew nothing, as do most Democrats in America, I might add. In light of this propaganda line, it is abundantly clear just why Charlie Gard could not be allowed to come to America, if there was a chance that the experimental treatment might succeed. If I were a betting man, I would have put money on the idea that, following Charlie’s successful treatment, numerous long stories would have appeared on the BBC about the hapless sick poor in the USA. Socialized medicine is about control, always and everywhere. Let us resolve to learn the lesson we are being taught here, lest little Charlie die in vain.

  22. Ymar Sakar Says:

    Medical supplies are obviously a limited resource to the elites, because the more the peasants use up medical resources, the more rare and more highly valuable it becomes.

    Instead of opening up the market so that silicon chips become cheaper, they instead close the medical market and collapse it into a Venezuelan monopoly run by the State.

    This is by design, not because they are incompetent idiots, although the Left has their share of incompetent idiot zombies.

    The US stock market itself is designed as a zero sum trap. When it collapses, the 3% transfers the wealth to themselves as the stocks drop in price for everybody else. They had already sold off most of the value from their end first.

  23. blert Says:

    Frog Says:
    July 30th, 2017 at 5:48 pm

    I beg to differ with whoever was the source of blerts’ “I’ve even heard arguments that such a child (saved) would cost the lives of a hundred ordinary children — or seniors.”
    That argument is a patently and obvious malign fabrication, said by the ignorant or for the ignorant.

    &&&&

    At a fundamental level, it’s Gruber’s argument.

    The budget is X.

    The per capita budget is X/P.

    The ‘system’ is saved by excluding souls that exceed X/P by 100 times. ( could be 1,000 times — but you get the drift )

    That’s pretty much the argument.

    EVERY socialised medical scheme ultimately devolves to this.

    There is no infinity of medical resources… let’s get past that dream.

    Allocation is the fight.

    MY argument is that virtually none of this would happen if the health care cartel was subjected to the Sherman anti-Trust Act.

    Its’ the SUPPLY SIDE THAT’S RIGGED.

    Note how virtually no-one discusses this.

  24. Richard Saunders Says:

    One of the little-known facts about Obamacare was that it reduced payments for Graduate Medical Education — subsidies for hiring and paying more interns and residents — and Disproportionate Share Hospital — payments for serving more of the indigent than the average.

    Like I said, Obamacare was a plot by the Indian Medical School Association!

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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