One positive aspect of the debate about the Alfie Evans case - and heaven knows there are plenty of negative aspects - is the way that the rights of the parents came into focus. Over the last several decade the rights of parents have been eroded in every area of family life and every area of law: in education, in child safeguarding, and in healthcare. There has been some push-back on the role of the secret Family Courts and the Social Services recently, and this may have helped to draw attention to the rights of parents in the Alfie case as well.
Children who are too young or too ill to consent or withhold consent for medical treatment must not be deprived of medical treatment just for that reason. It has always been the case, and it remains the case, that parents are able to consent, or withhold consent, on their behalf. The same is true of children's property: parents act a trustees and can consent or not on behalf of their children in relation to property owned by their children. It is an obvious legal doctrine and a very necessary one. If you take your child to hospital for treatment, you will be asked to sign special forms giving consent to the treatment. Sometimes you have to sign over and over again as treatment goes on.
An attitude has developed, however, among some in the medical, legal, and political establishments, which regards this as a tedious and unnecessary rigmarole. Once a child is under the care of a qualified doctor, it would be wrong for the parents to refuse to consent to whatever treatment or lack of treatment the doctor thinks is appropriate. There is something slightly creepy about a doctor or social worker asking a parent to sign a form handing over the legal right to do something and simultaneously whispering that, if the parent doesn't sign, there'll be trouble. A lot of parents are getting this creepy impression.
Much as the criticism by Americans of the UK's 'socialised' medicine is irritating to us here, on this they do have a point. In private medical practice, getting a second opinion is the most natural thing in the world. Private doctors don't have the feeling of ownership over their patients which the National Health Service has developed. The idea that a patient might fail to take his pills, or might take his problems to a quack, may be distressing to a private doctor, but his first instinct is not to call the police. But that is exactly what is increasingly happening in the NHS.
No doubt people will rush to point out that Alfie Evans ended up with multiple 'second opinions', and his parents were able to argue the case for their preferred option at considerable length in a court of law. But there is something surreal about these courtroom arguments. Mr Justice Hayden was called upon to the assess the testimony of multiple doctors. He has to consider their qualifications and experience. He had to weigh up the pros and cons of various plans for treatment or non-treatment. His decision was that, though he found it was overwhelmingly probable that further treatment would not cause Alfie any suffering, the possibility that it might do so made it, on balance, not the right thing to do, given the limited upside of the proposed treatment.
But Mr Justice Hayden has no medical expertise. Why on earth was it up to him? What, to use a legal term, is his locus standi, his standing or relevance to the question? As the law stands it is up to a judge to determine the 'best interests' of a child if a doctor does not want to accept the decision of a parent or guardian. This would make sense if a doctor, or any other bystander, was intervening in a case which looked like abuse. But Hayden made it clear that Alfie's parents were not only devoted to their child's wellbeing but were extremely well informed about the medical facts. It also emerged, in the court proceedings, that the parents' preferred option would have been regarded as reasonable by the medical establishments in Italy and Germany. Ok, so we can disagree with the parents, and with the foreign doctors. But simply disagreeing with another person's carefully-considered opinion, in the light of competent medical advice, about the best interests of their child, should not entail calling in the strong arm of the law.
So I'm not saying that the rejection of the treatment proposed by the Bambino Gesu was, in itself, an unreasonable judgement to make. I'm just asking how we've come to the position when this judgement is being made, not by parents, and not by doctors, but a judge sitting in court.
The only way to justify what happened is to say that, not that parents can be overruled where they are clearly harming their child, but that the have no role to play in decision-making at all. Indeed, in one of the most worrying aspects of the judgement, two of the doctors quoted seemed to be of the opinion that the fact that Tom Evans and Kate James were Alfie's parents made them less competent to influence decision-making about Alfie's care, not more:
these reactions are very difficult to separate especially for parents. (para 21)
It may also be
difficult for the parents to understand, but in my opinion there is little if any to offer. (sic: para 22)
Now obviously parents, like everyone else, can be effected by their emotions and can succumb to irrationality. But it is their very visceral attachment to their children which is the guarantee of their concern for their children's welfare. Justice Hayden's amateur psychoanalysis of Alfie's parents, a pastime to which he frequently returns in his judgement, is not only patronising and unprofessional, but spectacularly misses the point. Parental concern for a child is the proper and appropriate attitude for a parent of a sick child, and parental insistence on the child's welfare is the proper and appropriate principle to guide his care.
To fend of the inevitable retort, that some parents lack this concern: yes, and that is negligent or abusive and the law can deal with such cases without removing parental rights altogether. The blindingly obvious feature of this case is that we are not dealing with such a situation here.
Hayden quotes a previous judgement setting out pithily the current legal situation in England and Wales: 'the sole principle is that the best interests of the
child must prevail and that must apply even to cases where parents,
for the best of motives, hold on to some alternative view.' (para 49) At the risk of repeating myself, this takes for granted that we are talking about the 'best interests of the child' as determined by a court of law, as opposed to as determined by parents, or even as determined by the child's medical team. (Courts can, at least in theory, rule in favour of parents and against doctors, as well as the other way round.) It is a statement of the legal principle that parents are in the last analysis mere onlookers in relation to their children's health. To different extents this has attitude already been applied, by parallel, to children's education, their sexual lives, and their psychological well-being. The logic of this principle is that parents are not parents but mere biological pathways for the production of wards of the state.
Most parents most of the time, in Britain in 2018, have not been deprived of their stewardship of their children's wellfare. At present this kind of reasoning is only wheeled out where a serious conflict has developed between parents and some state agency. But the legal principle is becoming well-established and its extension to wider and wider areas of life is just a matter of political and legal will. Should this happen the state may begin to notice a disengagement by parents, a disinclination to invest in their children, and a disinclination to have children. They may find their final victory over the family is a hollow one.
This is the last of a four-part series on the Alfie Evans case. See also:
Alfie vs. the System
Alfie and the Natural Law
Alfie and end of life care
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