Information Note on the Court’s case-law 250
April 2021
Parfitt v. the United Kingdom (dec.) - 18533/21
Decision 20.4.2021 [Section IV]
Article 2
Positive obligations
Article 2-1
Life
Decision to withdraw life-sustaining treatment for child suffering from terminal medical condition, based on her “best interests”: inadmissible
Article 8
Article 8-1
Respect for family life
Decision to withdraw life-sustaining treatment for child suffering from a serious disease, based on the “best interests of the child”: inadmissible
Facts – The applicant’s daughter, P.K., has a rare and usually terminal medical condition called Acute Necrotising Encephalopathy (ANE). As a result, and among other things, she suffered very severe brain damage and is in a persistent vegetative state. At the relevant time, she was being treated in a hospital’s Paediatric Intensive Care Unit, where she was on a ventilator and subject to an invasive care regime.
The Trust in charge of the hospital where P.K. was being treated applied to the domestic courts for declarations and orders that would permit the withdrawal of her life-sustaining treatment. The applicant opposed the application and instead proposed that P.K. be returned home and her condition managed there. The High Court sided with the Trust, and the applicant appealed unsuccessfully. The applicant then sought and obtained an interim measure under Rule 39 of the Rules of Court staying the withdrawal of life-sustaining treatment from P.K.
Law
Article 2: In order to examine whether the State had complied with its positive obligations, the Court, having regard to the margin of appreciation afforded to the authorities in such cases, considered three elements:
(i) The existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2 – The Court had consistently acknowledged that the relevant regulatory framework in the United Kingdom did not disclose any shortcomings which could lay the basis of an arguable claim of a breach of the domestic authorities’ obligation to protect the right to life (see Gard and Others v. the United Kingdom (dec.) and Glass v. the United Kingdom (dec.)).
(ii) Whether account had been taken of the patient’s previously expressed wishes and those of the persons close to him, as well as the opinions of other medical personnel – While the High Court judge had acknowledged the expertise of all twelve highly respected, specialist doctors who had provided evidence before him, on balance he had given weight to the evidence of the clinicians responsible for P.K.’s day-to-day care and, ultimately, had been satisfied that the chances of P.K. being able to be transferred to long-term ventilation at home had been remote.
In reaching his conclusions, the judge had given due consideration both to the clear presumption that life should be preserved and to the wishes of the applicant, who had been represented throughout by an experienced legal team. Further, although P.K. was too young to have expressed any wishes of her own, her interests had been separately represented by a guardian appointed by the court and by lawyers introduced on her behalf, who had supported the Trust’s application. The judge had also had full regard to the fact that if she could have been asked, P.K. would likely have wanted to be at home rather than in hospital, but that the sad reality had been that as she had lacked conscious awareness she would not have derived any benefit from being home. She would not even have known that she was there.
Nonetheless, the judge had considered whether there would be “anything to lose” from transferring P.K. home. He had concluded that her invasive care regime had been a continuing burden which had brought her no benefit. Finally, although none of the medical experts had considered that it was in P.K.’s best interests to remain in the hospital, the judge had also addressed that issue. He had taken a broad view of her medical and non-medical interests, and her likely wishes and those of the applicant, but again, notwithstanding the presumption that life should be preserved, he had considered that it was not in her best interests that her life should be prolonged.
(iii) The possibility to approach the courts in the event of doubts as to the best decision to take in the patient’s interests – That element was likewise satisfied. Pursuant to the regulatory domestic framework there had been a duty to approach the courts in the event of conflict and the Trust had quite properly approached the High Court to obtain the necessary declarations and orders.
Conclusion: inadmissible (manifestly ill-founded).
Article 8: The High Court had interfered with the applicant’s right to respect for her family life by taking the decision regarding her daughter’s care. As that interference had been in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of P.K., the only issue was whether it had been proportionate to the legitimate aim pursued.
The fact that the regulatory framework in the United Kingdom vested responsibility for such decisions with the courts, and not with the parent(s), could not be impugned. The Court had itself stressed the importance of having access to the supervision of the national courts and, consequently, the appropriateness of the hospital turning to the courts where there was a difference of opinion between the parent(s) and the treating clinicians (Gard and Others).
Moreover, at both levels of jurisdiction the courts’ examination had been meticulous and thorough; all concerned had been separately represented throughout; extensive and high-quality expert evidence had been heard; weight had been accorded to all the arguments raised; and the courts had given clear and extensive reasoning to support their conclusions.
It was true that the test applied by the High Court had been that of “the best interest of the child’, and that in Gard and Others the Court had not considered it necessary to determine whether that was the appropriate test or whether the courts should instead ask if there was a risk of “significant harm” to the child. However, in that case the Court had also acknowledged the existence of a broad consensus in international law that, in all decisions concerning children, their best interests must be paramount. More recently, in Vavřička and Others v. the Czech Republic [GC], the Court had rejected the applicants’ contention that it should primarily be for the parents to determine how the best interests of the child are to be served and protected, and that State intervention could be accepted only as a last resort in extreme circumstances. Consequently, the decision to apply the “best interests of the child” test in a case such as the one at hand could not be said to fall outside the margin of appreciation afforded to States in striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy.
In any event, in determining the best interests of P.K., the judge had clearly found that, although she was unlikely to feel pain, both the constant invasions to her person required to keep her alive and the ongoing loss of freedom, function, and ability to enjoy childhood, had caused her continuing and ongoing harm.
Conclusion: inadmissible (manifestly ill-founded).
The Court discontinued the application of Rule 39 of the Rules of the Court.
(See Gard and Others v. the United Kingdom (dec.), 39793/17, 27 June 2017, Legal Summary; Glass v. the United Kingdom (dec.), 61827/00, 18 March 2003, Legal Summary; and Vavřička and Others v. the Czech Republic [GC], 47621/13 et al., 8 April 2021, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy