Alfie Evans and the end of the myth of the UK as a free country.

[Husar]

But then you can also believe the stalker who says the woman he keeps harassing just can't express her feelings because she is possessed.
It is simply beyond our knowledge so the police and judge should stay out of it unless they can prove she is not possessed by a curse, which they can't.

[Fisherking]

But then you can also believe the stalker who says the woman he keeps harassing just can't express her feelings because she is possessed.
It is simply beyond our knowledge so the police and judge should stay out of it unless they can prove she is not possessed by a curse, which they can't.

In a criminal case it is typically a jury who decide the facts of the case. In this case the injured party is a government agency complaining that the patient's family is not willing to just let the child die and want to leave the county seeking further treatment. Government deciding if government is actually injured and what course to take. I see no harm in allowing the family to decide their course of action and find the government case petulant.

[Montmorency]

Perhaps the better question here would be; who would have been outraged or harmed had the patient been allowed to go?

Before one can answer this, I think it needs to be turned around. Do you see any circumstance (without regard for any specific existing law or rule) in which the state (-run healthcare system) should or may overrule a caretaker in their decision on behalf of the ward to withhold, reject, or terminate
(1) a treatment or practice
(2) matriculation into this or parallel system?

It has no ones best interest at heart except that of government. Pretending otherwise is foolishness.

That's uselessly-circular thinking. Garbage in, garbage out implies the alternative. And government isn't unitary, which is in fact compatible with its components frequently contradicting each other; you're repeatedly alluding to some diffuse "interest", but it's better framed in terms of who gets the say.

In a criminal case it is typically a jury who decide the facts of the case.

Well, in the Anglo tradition... I recall it is uncommon beyond, and I'm unsure to what extent it ought to be applied.

[Montmorency]

I won't be going into other cases after all, because I'm not sure what primary sources to look for (to the extent this information is even publicly available).

There is the Charlie Gard case, which is briefly noted in the judgement below and the appeal judgement to which I link below. The appeal judgement in the Gard case makes reference to the 1989 Children Act whereas the Evans judgement does not. The appeal permission to the Evans judgement goes into further detail on relevance of the CA1989. (I won't be explicitly evaluating here the argumentation in the Gard judgements against that of the Evans case, though we may refer to the Evans appeal for some comparison.)

Maybe I'm missing something - if so, @rory_20_uk can help me out - but here's what I've gathered so far on the legal and procedural application relevant to the thread topic:

Children Act of 1989

[Charlie Gard appeal rejection]

[Alfie Evans Court Judgement]

[Alfie Evans appeal rejection]

[Supreme Court appeal rejection]


Some points about the CA1989 obligations and authorities:

Section 31 CA 1989 provides:
"(2) A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control."
Section 31(9) defines 'harm' as "ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another." The component parts of that definition are further defined as follows:
"development" means physical, intellectual, emotional, social or behavioural development;
"health" means physical or mental health; and
"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical.

The definition is deliberately widely drawn. Section 31 provides the principal route for child protection in England and Wales and must, insofar as it can be achieved, be capable of capturing all forms of child abuse. Crucially, however, it comes into play in care proceedings only when a child is "suffering, or likely to suffer, significant harm" which is attributable to the care given to the child "not being what it would be reasonable to expect a parent to give to him." (or the child being beyond parental control).

[...] it should not be overlooked that care proceedings are not the only statutory route whereby the court has jurisdiction to interfere with the exercise by a parent of their parental responsibility. Far more common than proceedings under section 31 of the Children Act 1989 are proceedings under section 8 of the Children Act 1989, Child arrangements orders and other orders with respect to children.

Section 8.1 provides
"(1)In this Act —
"child arrangements order" means an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person;
"a prohibited steps order" means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court;
"a specific issue order" means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child".

Section 8, then, sets out the orders available to the court when resolving disputes between parties where a disagreement has arisen in relation to the exercise of parental responsibility. Such disputes are usually in relation to residence and contact following the breakdown of the relationship between the parents of a child, but also the section covers specific issue and prohibited steps order.

The resolution of every dispute under section 8 Children Act 1989 is determined by reference to the welfare principle enshrined in s.1 CA1989 whereby "the child's welfare shall be the court's paramount consideration." In other words, the decision is made by reference only to the best interests of a child.

It should not be thought that because section 8 applications fall outside s31 CA 1989 they cover only less serious matters than those dealt with by the courts under s31CA 1989 and the inherent jurisdiction. On the contrary, the courts hearing section 8 cases can and often do deal with allegations of the utmost seriousness relating, for example, to allegations of child sex abuse and domestic violence of every type from a verbal abuse up to and including marital rape and attempted murder.

Nor is section 8 limited to disputes between those parties who have parental responsibility. Third parties without parental responsibilities (for example a grandparent) can, with leave (granted under s10(2)(b) CA 1989) make applications under section 8.

Significant for the purpose of this present matter is that it is common ground that an NHS Trust can (with leave) seek a specific issue order under section 8 in a serious medical treatment case, as an alternative or more usually and preferably in parallel with an application under the inherent jurisdiction.

It is correct that, before granting leave, the court is required to have reasonable cause to believe that the child is likely to suffer significant harm if the inherent jurisdiction is not invoked, but the application of the provision is expressly limited to local authorities.

107. A primary purpose of the Children Act 1989 was to delineate, limit and provide structure for the roles respectively of local authorities and the courts. Prior to the Children Act coming into force, local authorities had regularly resorted to the inherent jurisdiction of the High Court in order to achieve some form of control over the lives of individual children and their families. A clear purpose of the 1989 Act was to close down or at least limit that avenue and to channel all such cases through the statutory scheme embodied in Section 31 of the Act, which requires the state in the guise of a local authority to satisfy the court that the significant harm threshold criteria are established before the court can consider going on to make orders to give the local authority power to control the life of an individual child in a family.

But the parents suggest a wider analogy, in particular with proceedings for a care order but also with adoption proceedings. Section 31 of the Children Act disables a court from granting a care order to a local authority unless the child has suffered or is likely to suffer significant harm, attributable to care below a level which it would be reasonable to expect a parent to give. Here, in the panel's view, one reaches the nub of the parents' argument. If significant harm (or its likelihood) has to be established before a child can be removed - perhaps only temporarily - from the home of his parents under a care order, why does it not need to be established before he can be removed, permanently, from them and from everything in this world, by death?
A child, unlike most adults, lacks the capacity to make a decision in relation to future arrangements for him. Where there is an issue in relation to them, the court is there to take the decision for him as it is for an adult who lacks that capacity.
The gold standard, by which most of these decisions are reached, is an assessment of his best interests. The first provision in the Children Act is that the child's welfare shall be the court's paramount consideration. Parliament's provision reflects international instruments, particularly the UN Convention on the Rights of the Child. And in the Human Rights Convention, the rights of a child under article 8 will, if inconsistent with the rights of his parents, prevail over them.
But Parliament has provided that in care proceedings there should be an initial hurdle, namely the establishment of significant harm or its likelihood, attributable to the parents, before an assessment of the child's best interests can be reached. For in such proceedings a powerful extra objective is in play, namely to avoid social engineering. These are proceedings by the state to remove a child from his parents. Families need protection from too ready a removal of him. It might be arguable that a child growing up in many households today would be better off elsewhere. But Parliament has provided that that should not be a strong enough reason for removing him. Significant harm must be established.
The present proceedings are quite different; and the gold standard needs to apply to them without qualification. Doctors need to know what the law requires of them. The founding rule is that it is not lawful for them (or any other medical team) to give treatment to Alfie which is not in his interests. A decision that, although not in his best interests, Alfie's continued ventilation can lawfully continue because (perhaps) it is not causing him significant harm would be inconsistent with the founding rule.
We are satisfied that the current law of England and Wales is that decisions about the medical treatment of children, like those about the medical treatment of adults, are governed by what is in their best interests. We are also satisfied that this does not discriminate against the parents of children such as Alfie in the enjoyment of their right to respect for their family life because their situation is not comparable with that of the parents of children who are taken away from them by the state to be brought up elsewhere.

The question of whether a "significant harm" test should govern proceedings of this type was considered by the Court of Appeal and thereafter by the Supreme Court in its permission to appeal judgment, and finally in Strasbourg, in the well-known Charlie Gard case.
Baroness Hale it might thought had laid such a proposition to rest. She said In the matter of Charlie Gard, 8 June 2017:
"4. The legal test which he applied was whether further treatment would be in Charlie's best interests and in his order he expressly found that it would not be."

5. The parents argue that this is not the right legal test. In this sort of case the hospital can only interfere in the decision taken by the parents if the child is otherwise likely to suffer significant harm. But that apart, it is argued, decisions taken by parents who agree with one another are non-justiciable. Parents and parents alone are the judges of their child's best interests. Any other approach would be an unjustifiable interference with their status as parents and their rights under Article 8 of the European Convention on Human Rights. But there are several answers to this argument.

6. Firstly, applications such as this are provided for by statute: the Children Act of 1989. There was an application for a specific issue order in this case, as well as under the inherent jurisdiction of the High Court. Both are governed by the same principles. Section 1, sub-section 1 of the Children Act 1989 provides that the welfare of the child shall be the paramount consideration in any question concerning the upbringing of the child in any proceedings. This provision reflects but is stronger than Article 3.1 of the United Nations Convention on the Rights of the Child, which says that in any official action concerning the child, the child's best interests shall be a primary consideration.

7. Furthermore, where there is a significant dispute about a child's best interests the child himself must have an independent voice in that dispute. It cannot be left to the parents alone. This has happened in this case because Charlie has been represented by a guardian.

8. The guardian has investigated the case in his best interests and the guardian agrees with the hospital and with the judge's decision.

9. So, parents are not entitled to insist upon treatment by anyone which is not in their child's best interests. Furthermore, although a child can only be compulsorily removed from home if he is likely to suffer significant harm, the significant harm requirement does not apply to hospitals asking for guidance as to what treatment is and is not in the best interests of their patients. As the Court of Appeal found, it is in any event likely that Charlie will suffer significant harm if his present suffering is prolonged without any realistic prospect of improvement. This was found by reference to the judge's conclusions on the evidence.

10. Finally, the European Court of Human Rights has firmly stated that in any judicial decision where the rights under Article 8 of the parents and the child are at stake, the child's rights must be the paramount consideration. If there is any conflict between them the child's interests must prevail."

The Evans appeal judgement also discusses the relevance of the Act (Act sections 8 and 31) in the appellants' putative jurisdictional comparison between care provisions ("significant harm") and inherent jurisdiction ("best interests"). That's a little more technical matter and largely isn't relevant to what interests the thread except as reinforcement.

Spoiler Alert, click show to read: 

Significant for the purpose of this present matter is that it is common ground that an NHS Trust can (with leave) seek a specific issue order under section 8 in a serious medical treatment case, as an alternative or more usually and preferably in parallel with an application under the inherent jurisdiction.

Whether the dispute is with the third party without parental responsibility or the child's other parent with parental responsibility, the test is the same: "what is in the best interests of the child?" There is no threshold, whether of significant harm or otherwise.

During the course of section 8 proceedings it may become apparent to the court that additional factors are in play which are of more concern than the inevitable distress to a child upon family breakdown or in a medical treatment case, to the understandable chasm which has opened up between clinicians and parents unable to agree a way forward. The Children Act 1989 provides for just such an eventuality through section 37 Children Act 1989:
"37(1) Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child's circumstances."

It follows, therefore, that where an application is made for a specific issue order under section 8 CA 1989, care proceedings - with the threshold of significant harm - provide the court with an additional avenue of intervention, only resorted to when there are concerns in respect of the child in question over and above the inherent difficulties which arise by virtue of the issue before the court.
[...]
As in section 8 cases, there is no threshold, and it is not necessary for a trust to prove significant harm before a court can make an order which would have the effect of interfering with the exercise of parental responsibility on the part of the parents. Decisions are made only on the basis of the best interests of the child.
[...]
In my view, parents in care proceedings are not in an "analogous or relevantly similar situation" to those in medical "best interests" cases under inherent jurisdiction proceedings.

Some of the closing points from the Appeal judgement, bearing on parental responsibility and abridgement thereof, and the relevance of the child's condition:

Spoiler Alert, click show to read: 

Following this argument through, McCombe LJ in argument put it to Mr Knafler and to Mr Mylonas that it follows that in withdrawal of medical treatment cases just as much as in care proceedings, the court will not intervene to interfere with the exercise of the parents' parental responsibility absent the child's suffering or being likely to suffer significant harm. If attribution of that harm to the parents has been necessary it is to be found in their refusal to consent to the palliative care regime proposed by the Trust.

It will be recollected that in Gard Baroness Hale said,
"As the Court of Appeal found, it is in any event likely that Charlie will suffer significant harm if his present suffering is prolonged without any realistic prospect of improvement"

That finding had been made on the basis of very similar findings in relation to the issue of pain, as in the present case, namely that whilst it was unlikely that Charlie, or here Alfie, is suffering pain it cannot be ruled out.

[...]the proceedings under the inherent jurisdiction have in my view an objective and reasonable justification and pursue a legitimate aim, namely the care and treatment of desperately ill children.

Again it was not argued before the court but, notwithstanding Mr Mylonas' circumspection, it seems to me that there may be a respectable argument that when it comes down to significant harm in the context put by McCombe LJ to Mr Mylonas when put side by side with "futile" may in this context be different labels but without distinction.

Mr Knafler was frank in accepting that a consequence of his approach would be that where a parent did not agree with the hospital's treatment plan, even where the plan had been endorsed by their own independent experts, the parents could insist on what Mr Knafler has termed "suboptimal" care. In other words, the best interests of the seriously ill child must, he says, take a secondary position to the wishes and feelings of their parents absent attributable significant harm. With respect to Mr Knafler, not only does such an approach feel instinctively wrong, but it must be recollected that not only do the parents have rights, but so does the child, Alfie, and European law has been consistent in saying that the best interests of a child, whether seriously ill or not, must take primacy.

It follows that the State has a wide margin of appreciation as to how the withdrawal of life-sustaining treatment is managed, unaffected by the fact that other states, in this case Professor Hass asserting such an approach is taken in Germany, may have very different approaches or views as to how and if treatment should be withdrawn, and if so in what circumstances. In the United Kingdom such cases are managed within the hospitals in accordance with guidelines, which guidelines operate under the law which states that the best interests of the child are the determining factor. In the event that there is disagreement the matter is referred to the court, where both the parents and the child are parties to the proceedings.

From the Alfie Evans High Court judgement:

Spoiler Alert, click show to read: 

It is necessary here to root my own conclusions in the framework of the Law and
within the available guidance. The Royal College of Paediatrics and Child Health
has produced guidance, published March 2015: Making Decisions to Limit
Treatment in Life-limiting and Life- threatening Conditions in Children: A
Framework for Practice’. The following is relevant:

The RCPCH believes that there are three sets of circumstances when
treatment limitation can be considered because it is no longer in the
child's best interests to continue, because treatments cannot provide
overall benefit:
II When life is limited in quality This includes situations where
treatment may be able to prolong life significantly but will not
alleviate the burdens associated with illness or treatment itself. These
comprise:
3 .Lack of ability to benefit; the severity of the child's condition is
such that it is difficult or impossible for them to derive benefit from
continued life.....In other children the nature and severity of the
child's underlying condition may make it difficult or impossible for
them to enjoy the benefits that continued life brings. Examples
include children in Persistent Vegetative State (PVS), Minimally
Conscious State, or those with such severe cognitive impairment that
they lack demonstrable or recorded awareness of themselves or their
surroundings and have no meaningful interaction with them, as
determined by rigorous and prolonged observations. Even in the
absence of demonstrable pain or suffering, continuation of LST may
not be in their best interests because it cannot provide overall benefit
to them. Individuals and families may differ in their perception of
benefit to the child and some may view even severely limited
awareness in a child as sufficient grounds to continue LST. It is
important, here as elsewhere, that due account of parental views
wishes and preferences is taken and due regard given to the acute
clinical situation in the context of the child's overall situation.

Contra Fisherking's impression, the key factors in the doctors' and judges' reasoning were "combination of the futility of Alfie’s life (i.e. the absence of any prospect of recovery) and the uncertainty of knowing whether Alfie is suffering." And I would recommend he read at least the February judgement linked above; he may be surprised at how generous and empathetic the judge is.

In subsection "The Directions Hearing", referring to litigation of late 2017, the judge remarks that the father seemed to be acting in such a way as to delay the case and "buy time for his son". (Just in case someone complains the courts are too ponderous an instrument.) Also noted in the appeal judgement:

The father (and no doubt the mother) is anxious to have adequate time to understand, consider and contribute to any end of life plan for Alfie. The Trust has indicated that they are happy to respect the father's wishes in this regard and will not, following the dismissal of any appeal, act with unseemly haste. The Trust gave the court that assurance against their continuing concern that this desperate father will do anything to put off the day when ventilation will be withdrawn. Clearly if no compromise or agreement can be reached, the matter will have to be returned to the judge for him to hear argument and to fix a date.

And it goes on into fact-specific considerations, as well as the case made by the parents and the alternative medical opinions for moving Alfie (alleged lack of medical justification against moving), and even the Catholic doctrine supporting "due proportion in the use of remedies" (re: the discontinuation or withholding of "overzealous" therapies). But the basic idea of all this is that life under total disability shouldn't be aggressively extended. Allowing repeated movement of the patient to different countries and hospitals just to continue the same sort of intensive, and then palliative care would be an example of the proscribed aggressive intervention.

The judge's conclusions:

Spoiler Alert, click show to read: 

60. Whilst I have, for the reasons stated, rejected the evidence of Dr Hubner, I do not
exclude the possibility that travel by Air Ambulance may remain a theoretical
option. It requires to be considered however in the context of the matters above and
one further important consideration. All agree that it is unsafe to discount the
possibility that Alfie continues to experience pain, particularly surrounding his
convulsions. The evidence points to this being unlikely but certainly, it can not be
excluded.

61. Alongside all this it must be remembered that Alfie can not sustain life on his own.
It is the ventilator that has been keeping him alive for many months, he is unable to
sustain his own respiratory effort.

62. All this drives me reluctantly and sadly to one clear conclusion. Properly analysed,
Alfie’s need now is for good quality palliative care. By this I mean care which will
keep him as comfortable as possible at the last stage of his life. He requires peace,
quiet and privacy in order that he may conclude his life, as he has lived it, with
dignity.

63. The plans to take him to Italy have to be evaluated against this analysis of his needs.
There are obvious challenges. Away from the intensive care provided by Alder Hey
PICU, Alfie is inevitably more vulnerable, not least to infection. The maintenance
of his anticonvulsant regime, which is, in itself, of limited effect, risks being
compromised in travel. The journey, self-evidently will be burdensome. Nobody
would wish Alfie to die in transit.

64. All of this might be worth risking if there were any prospect of treatment, there is
none. For this reason the alternative advanced by the father is irreconcilable with
Alfie’s best interests. F continues to struggle to accept that it is palliation not
treatment that is all that can now be offered to his son

A decision to suspend further intensive treatment should thus be internally supported - and it isn't logical to reject one course of action, but then to remand the subject into the same thing but elsewhere. I'm not sure if the option to withdraw patient into home care is addressed, though I'm not clear here how the parents prioritized this option. I can't figure out, for example, whether the parents wanted to visit the Italian or German hospital just in order that Alfie could be prepped for palliative home-care, and if so why this could not be accomplished without transiting hospitals (i.e. locally). Also keep in mind that under any case of home-care, the parents wanted Alfie subjected to major surgical procedures (tracheotomy and gastrostomy). There's no indication that the parents simply argued, 'We want to take Alfie home now'. So the issue remains abstract.

F presses for Alfie to be permitted to travel to the BG hospital (Rome) and
provided with a tracheostomy and PEG feeding. He argues, if that proffers no
solution, there should be a further transfer to the Munich hospital. If that too fails F
says that Alfie should be allowed home to die “when he decides to”.

Finally, it's an interesting fact that the NHS Trust itself paid for the various outside specialists to assess Alfie, advise the parents, and advocate the parents' case before the caretakers and before the courts.

In addition the Trust paid for outside expert mediators to work with the parents and themselves. It did this because the doctors and nurses caring for Alfie, in common with all clinicians in such a situation, aspire to work together with the parents and to support them rather than to be in conflict with them.

Altogether, my impression is that the system has worked fairly well and the decision-making has all been within the text of the law. Why shouldn't this instill some pride our British members?

British law as I reference it here requires the state, incidentally or otherwise, to make an assessment of best interests and to act upon it - or take it into consideration in the course of action. This was done in both the Gard and Evans cases, and the reasoning isn't inconsistent (though I hope you will forgive me for not giving the Gard judgements a thorough summary). If you want to continue in the abstract rather than the particular, you will probably attempt to argue that you don't want the state determining what a citizen's "best interests" are...


( @Husar: The German Dr. Haas, and considerations around his advisements and testimony in this case, suggest to me that the German healthcare system is likely to act in a way that maintains the child or disabled patient on life support indefinitely:

Because of our history in Germany, we've learned that there are some things you just don't do with severely handicapped children. A society must be prepared to look after these severely handicapped children and not decide that life support has to be withdrawn against the will of the parents if there is uncertainty of the feelings of the child, as in this case

Respond?

)

[Fisherking]

Monty, that is admirable research you put together but in these cases it only goes to prove the assertion I made in the title of this thread.

Why? Because they are arbitrary conditions set to check Liberty. Freedom to choose. There is no criminal act here. No act which upsets the order of society. The court could have as well found that the public can shop at M&S but not Tesco.

These cases point to a level of arrogance and paranoia that are nearly unimaginable. Would you question a doctor who took you to court for wishing a second opinion from another qualified physician? That to seek one could mean you would or could be tortured? They call into question the rest of the worlds ability to practice medicine. Are the physicians of other counties less compassionate or less dedicated? Is their only care the profit motive?

These cases may well seem hopeless but what does it matter. All the more reason for those involved to seek other opinions, if for no other reason than peace of mind.

It has resulted in those persons involved as being treated as Wards of the State and not as free people able to choose their own way in life. The statutes and their conditions only point this up.

[Gilrandir]

No, that's wrong. I was in court once and there was no jury.

Because it was a tennis court?

[Montmorency]

Monty, that is admirable research you put together but in these cases it only goes to prove the assertion I made in the title of this thread.

Why? Because they are arbitrary conditions set to check Liberty. Freedom to choose. There is no criminal act here. No act which upsets the order of society. The court could have as well found that the public can shop at M&S but not Tesco.

These cases point to a level of arrogance and paranoia that are nearly unimaginable. Would you question a doctor who took you to court for wishing a second opinion from another qualified physician? That to seek one could mean you would or could be tortured? They call into question the rest of the worlds ability to practice medicine. Are the physicians of other counties less compassionate or less dedicated? Is their only care the profit motive?

These cases may well seem hopeless but what does it matter. All the more reason for those involved to seek other opinions, if for no other reason than peace of mind.

It has resulted in those persons involved as being treated as Wards of the State and not as free people able to choose their own way in life. The statutes and their conditions only point this up.

Isn't criminality arbitrary?

The NHS cooperated with and even paid for the parents' second opinions in this case. Everyone agreed with the first opinions on the prognosis, the difference was over the "end of life" care.

Again, the deeper question is: do you see any circumstance in which a state (-run healthcare system) should or may overrule a caretaker in their decision on behalf of the ward to withhold, reject, or terminate
(1) a treatment or practice
(2) matriculation into this or parallel system?

[Husar]

( @Husar: The German Dr. Haas, and considerations around his advisements and testimony in this case, suggest to me that the German healthcare system is likely to act in a way that maintains the child or disabled patient on life support indefinitely:

Respond?

)

According to the last paragraph in this article, yes: https://www.zeit.de/wissen/gesundhei...rechte-medizin

It says German doctors and courts usually decide for life support for as long as possible because the right to life is seen as especially worthy of protection here. Then again, given the rare disease in this case, I'm not sure we've had (m)any comparable cases in Germany. It says doctors here treat patients for as long as there is hope of improvement, however minuscule it is. The article is about the Gard case where there was a slim chance of treatment with the experimental method, the given case of this thread seems to have had no such chance.
It also doesn't necessarily mean that they would let the parents do whatever they want with the child regarding alternative treatments and so on.

It has resulted in those persons involved as being treated as Wards of the State and not as free people able to choose their own way in life.

The state tends to do that if the parents don't have the best interests of the child in mind. The child cannot act as a free person and make decisions, although I guess you could free it of all the tubes the doctors inserted and see what it does by its own free will...

[Montmorency]

According to the last paragraph in this article, yes: https://www.zeit.de/wissen/gesundhei...rechte-medizin

It says German doctors and courts usually decide for life support for as long as possible because the right to life is seen as especially worthy of protection here. Then again, given the rare disease in this case, I'm not sure we've had (m)any comparable cases in Germany. It says doctors here treat patients for as long as there is hope of improvement, however minuscule it is. The article is about the Gard case where there was a slim chance of treatment with the experimental method, the given case of this thread seems to have had no such chance.
It also doesn't necessarily mean that they would let the parents do whatever they want with the child regarding alternative treatments and so on.



The state tends to do that if the parents don't have the best interests of the child in mind. The child cannot act as a free person and make decisions, although I guess you could free it of all the tubes the doctors inserted and see what it does by its own free will...

I think the UK courts are aware that there is (or think there ought to be) a high threshold to overriding parental autonomy. But the legislators have clearly been of the position that parental autonomy is not unlimited. It isn't even in the US (though we do a terrible job of replacing it, since the kids are typically poor and/or dark).

Again from the Supreme Court Evans appeal rejection; this is addressing the appellants attempt to compare* the courts' decisions wrt Alfie to "care proceedings" (analogous to child abuse/neglect proceedings in the US) that find "significant harm" to children as a consequence of parental action/inaction, outlining probably the consensus orientation of government:

*That is, the argument that the court doesn't have jurisdiction to make "best interests" judgements because they should have to prove "significant harm", i.e. active abuse/neglect.

For in such proceedings a powerful extra objective is in play, namely to avoid social engineering. These are proceedings by the state to remove a child from his parents. Families need protection from too ready a removal of him. It might be arguable that a child growing up in many households today would be better off elsewhere. But Parliament has provided that that should not be a strong enough reason for removing him. Significant harm must be established.

The present proceedings are quite different; and the gold standard needs to apply to them without qualification. Doctors need to know what the law requires of them. The founding rule is that it is not lawful for them (or any other medical team) to give treatment to Alfie which is not in his interests. A decision that, although not in his best interests, Alfie's continued ventilation can lawfully continue because (perhaps) it is not causing him significant harm would be inconsistent with the founding rule.

We are satisfied that the current law of England and Wales is that decisions about the medical treatment of children, like those about the medical treatment of adults, are governed by what is in their best interests. We are also satisfied that this does not discriminate against the parents of children such as Alfie in the enjoyment of their right to respect for their family life because their situation is not comparable with that of the parents of children who are taken away from them by the state to be brought up elsewhere.

[Pannonian]

I think the UK courts are aware that there is (or think there ought to be) a high threshold to overriding parental autonomy. But the legislators have clearly been of the position that parental autonomy is not unlimited. It isn't even in the US (though we do a terrible job of replacing it, since the kids are typically poor and/or dark).

Again from the Supreme Court Evans appeal rejection; this is addressing the appellants attempt to compare* the courts' decisions wrt Alfie to "care proceedings" (analogous to child abuse/neglect proceedings in the US) that find "significant harm" to children as a consequence of parental action/inaction, outlining probably the consensus orientation of government:

*That is, the argument that the court doesn't have jurisdiction to make "best interests" judgements because they should have to prove "significant harm", i.e. active abuse/neglect.

And there are scandals over cases where it was deemed the state did not do enough to protect children from abusive families. Every time a child who has been visited by social workers dies whilst in their parents' care, heads are called for over why the children hadn't been taken from their families for their own protection. It's often the more conservative papers that lead the call for heads.

[Fisherking]

Only if you are a post modernist or perhaps think every law is just simply because it happened to be codified.

For over a thousand years, in the English system of law a crime required a victim and a demonstrable harm. Be that theft of property, fraud, or serious bodily harm.

Those were infringements upon the rights or property of others. So, no, generally it is not arbitrary. At least not until statutory laws in the last century began to criminalise other behaviour without a definable victim. These you would be correct in terming arbitrary.

When should state hold president over next of kin or caretaker, when there is provable criminal intent to do harm to the ward.

Certainly not when they disagree with medical opinion of not sustaining life.

So, where does the Britton’s right to liberty fall? Apparently they have the liberty to agree with government decisions and shut up. It is an empty promise on paper.

According to the last paragraph in this article, yes:

The state tends to do that if the parents don't have the best interests of the child in mind. The child cannot act as a free person and make decisions, although I guess you could free it of all the tubes the doctors inserted and see what it does by its own free will...

They did that. The child continued to live so they withheld sustenance until he died. But that wasn't torture, it was a medical procedure to them.

[Greyblades]

This is the moment where English liberty has died?

Not the two decades of ever mounting restrictions of action by moralizing psychopaths? The criminalizing of speech? The enforced discrimination of race, the death of habeus corpus?

Is it truly only the refusal to continue supporting the lingering spasms of a literal living corpse that can finaly make my people see the ascendance of this ever creeping tyrrany?

[Montmorency]

Only if you are a post modernist or perhaps think every law is just simply because it happened to be codified.

For over a thousand years, in the English system of law a crime required a victim and a demonstrable harm. Be that theft of property, fraud, or serious bodily harm.

Those were infringements upon the rights or property of others. So, no, generally it is not arbitrary. At least not until statutory laws in the last century began to criminalise other behaviour without a definable victim. These you would be correct in terming arbitrary.

Traditional legal systems (specifically here Germanic ones) are about controlling retaliation. They have little resemblance to our "state", other than in the reductive sense of bodily and property relations being the first available judicial object (states broadly being the entities that emerged to manage the distribution of persons and resources, in the first place).

This is not a complete legal/judicial/executive framework for the modern world, and what it seems to come down to is a strong libertarian distaste for our multitudinous modern societies.

When should state hold president over next of kin or caretaker, when there is provable criminal intent to do harm to the ward.

Certainly not when they disagree with medical opinion of not sustaining life.

So now the discussion in the case material of "care proceedings" and "inherent jurisdiction" becomes more relevant. (Refer to my links and quotations in the big post.)

The judges in the two appeals (including Supreme Court) presented their belief that a state intervention to avert or halt "significant harm" to children (cf. "criminal intent to do harm to the ward") is actually derivative from and subordinate to the inherent jurisdiction of the courts and the state in determining a subject's best interests.

If I understand this correctly, then it is not actually possible to give the state to evaluate significant harm while drastically restricting its jurisdiction to determine best interests.

That being correct, of course, would leave you with the arbitrary circumscription.

[Husar]

In a criminal case it is typically a jury who decide the facts of the case.

No, that's wrong. I was in court once and there was no jury.

In this case the injured party is a government agency complaining that the patient's family is not willing to just let the child die and want to leave the county seeking further treatment. Government deciding if government is actually injured and what course to take. I see no harm in allowing the family to decide their course of action and find the government case petulant.

Well, if there is the chance that the child is suffering due to the decision of the family, the government and court have to represent the interests of the child. When parents are beating their child blue and breaking its bones, I suspect you also wouldn't say the parents have to decide how best to raise their child.
Most governments don't even let people decide when to commit suicide and try their best to save them. All of this is usually considered a good thing, partially because people often think differently about these things once the emotions have subsided. This father wanted to sue the government and now he doesn't anymore according to the article I found. Why do you think that is?

[Montmorency]

Most governments don't even let people decide when to commit suicide and try their best to save them. All of this is usually considered a good thing, partially because people often think differently about these things once the emotions have subsided. This father wanted to sue the government and now he doesn't anymore according to the article I found. Why do you think that is?

I would in theory endorse a formal self-termination mechanism. The details are a pain in the ass, obviously.