Written by Joseph A. Morris
Forgive me while I vituperate.
I am stunned. I thought that I have been reasonably attentive to trends in British jurisprudence in recent years. Through the long, dark night of Britain’s subordination to the diktats of Brussels and the less-than-Anglo-Saxon notions that pass for “human rights” in the courts of the European Union, I had thought that British courts, including the still-young Supreme Court of the United Kingdom that has succeeded the House of Lords in serving as Britain’s court of last resort, were still going about the business of vindicating “the rights of Englishmen.” Apparently not; at least if the Englishman is not yet quite two years old.
Instead, it seems, the British judiciary now sees its highest duty to be, not the vindication of individual liberty but the enforcement of the supreme authority of the administrative state. I am dismayed by what I see, and gobsmacked that I did not see it coming.
I attach a copy of the order and opinion of April 20, 2018, entered by the Supreme Court of the United Kingdom in the case of Alfie Evans, the 23-month-old child who lies fighting for his life in Alder Hey Hospital in Liverpool, England. This order is the child’s death warrant.
The hospital has decided that the child is so ill that no care can save him and therefore no one should try. The hospital detached him from his breathing apparatus on Monday night (April 23d). To the bureaucracy’s horror, Alfie still lives. Alfie is not dying quickly enough to satisfy the hospital, and now it plans to deny him food and water.
Meanwhile, Alfie’s parents would like to take Alfie home — or take him somewhere else where other doctors and hospitals can treat him. Hospitals as far away as Italy have offered to accept Alfie, and have even sent ground ambulances and air ambulances to transport him. They have all been rebuffed by Alder Hey Hospital, which decrees that Alfie must die.
Late today the Supreme Court heard an emergency application begging it to reverse itself. The application asserted at least two new circumstances: First is that Alfie is still alive tonight. His survival defies the prediction of the all-knowing doctors at Alder Hey that he would not be able to live once detached from the respirator. Second is the remarkable intervention of the Government of Italy, which has granted Alfie Italian citizenship, generously offered to see to Alfie’s medical and hospital care, and even sent a military air ambulance and team to England to fly Alfie to a hospital in Rome that believes it has pioneered a therapy that stands a chance at saving Alfie. Lawyers for Alfie’s parents and for the Government of Italy were in the courtroom in London to argue the emergency petition today. The Court rejected the application and said that it won’t entertain others. Insofar as I know, it did so without a written opinion. So the attached opinion is the British judiciary’s highest and last written effort to explain itself.
The Supreme Court of the United Kingdom holds that the last word on Alfie’s fate must rest with the hospital where he lies. The parents are not permitted to take him to another hospital; they are not even allowed to take him home to die in their arms. Die Alfie must, and he must die when and where the health care bureaucracy tells him to die.
The bureaucracy in question is not some corporate chain of megahospitals; nor is it the grasping, heartless insurance company of Bernie Sanders’s nightmares. No. It is Britain’s vaunted National Health System, the socialist paradise.
The Court holds that the preferences of the bureaucracy count for more than the judgments of Alfie’s parents. The Court does not explain why that must be. The Court’s opinion leads ineluctably to the conclusion that the views of the bureaucracy count for more than the views of a family in determining what is in the best interests of a child. “Best interests” — undefined and unparsed — is the “Gold Standard”, the Court bleats again and again, that must govern decisions about the welfare of a child. What principle limits this “Gold Standard”, then, to cases involving the welfare of children? The next case — the case when the views of the bureaucracy must outweigh the views of a conscious, sober, autonomous adult regarding his own care, treatment, and risks of death — is immediately on the horizon.
Alfie’s case is very different from the case of Terri Schiavo, the 41-year-old woman who died in 2005 in the State of Florida after being removed from life support. In that case, to be sure, the medical and hospital bureaucracy strongly wanted to “pull the plug” on a woman whom medical science found to be in a “persistent vegetative state”. But the bureaucracy there were merely experts advising the parties: Ms. Schiavo’s husband versus Ms. Schiavo’s parents. The Schiavo case was decided not on the basis of the bureaucracy’s views, but because the courts of Florida and the United States held that Ms. Schiavo’s fate should be decided by her family and because, in her divided family, her husband stood closer to her than did her parents. To be sure, the bureaucracy aligned with the husband; but it was the time-honored primacy of the spousal relationship over any other that carried the day. It was the highest and closest family member, not a bureaucracy of strangers, that was held to be the proper judge of Ms. Schiavo’s “best interests”.
Alfie, by contrast, has no spouse. He has parents. There is no one closer to him. Alfie has a mother and a father who, although not married, are as one in their judgment that they, and not the hospital, should decide what is in Alfie’s “best interests”, and that it is in Alfie’s “best interests” to give him the chance to live.
The Court’s decision is an embarrassment. Its opinion is shallow, an insult to the intelligence of readers, lay and professional.
The proposition the Court sustains is that strangers — physicians; a hospital; a taxpayer-funded health benefits payment system — have final authority, superior to that of an child’s parents, to decide on the child’s course of care. This judgment shocks the conscience. The Court does not explain why it must be so. It simply repeats, as if chanting the text of a talisman, that “best interests” is the “Gold Standard”. The Court assumes, without explaining why, that doctors and bureaucrats, rather than parents and families, are better judges of “best interests”.
There is nothing in the record that makes Section 1 of the Custody of Children Act of 1891, “now repealed”, cited at Paragraph 7, even remotely apposite. There is no evidence that the parents have “deserted” or “abandoned” the child, or that they have conducted themselves in such a way that they should be denied custody. No basis is stated at Paragraph 8, invoking the successor acts, to show that, under these circumstances, it is in the best interests of the child to hasten his death rather than to let him live out his life, for such duration and such quality as it may have, in the custody of his parents — his natural custodians who have done anything but abandon him.
A hospital currently has custody. The Court states at Paragraph 13 that “it has been conclusively determined that it is not in Alfie’s best interests, not only to stay in Alder Hey Hospital being treated as he currently is, but also to travel abroad for the same purpose.” So why deny custody to his parents? If the child is destined to die, no matter what, why condemn him to remain in a hospital that has declared its intention to hasten his death? Why not allow his parents to tend to the child as best they can, whether to accord him hospice care at home or to seek out the best care that they, in their judgment, can obtain?
Why are the views of the doctors and the hospital deserving of greater weight than the views of the parents as to what is in the bests interest of the child, especially when, now, the hospital and the doctors not merely concede but affirmatively declare that there is nothing that the hospital and the doctors can do for the benefit of the child save to starve him and dehydrate him to death?
And why is definitive weight given to the views of this particular set of doctors and hospital administrators when, it seems, that there are other doctors and hospitals, in and out of the United Kingdom, who are willing to try to treat the child?
The only error chargeable against the parents, it would seem, is that at some point they were foolish enough to entrust their child to the care of a hospital and a set of physicians who are so cruel and so arrogant as are the set at Alder Hey Hospital. Alfie was born on May 9, 2016, and was ill from birth. Afflicted soon after birth with a mysterious degenerative illness that seems to be related to a defect in mitochondrial DNA, he was brought by his parents to Alder Hey Hospital on December 1, 2016, after suffering seizures. Doctors thought he wouldn’t survive then, but he fought for life, beating a severe infection. Alder Hey Hospital has been his home for more than a year. Adler Hey doesn’t want him anymore. But the hospital refuses to let him leave alive.
The hospital admits — nay, it asserts — that there is nothing that the hospital can do to benefit the child. Why, then, is the hospital entitled to custody of the child solely for the purpose of making sure that he dies as speedily as possible?
Is not the Court’s decision an abjuration of the individual liberty of the child and his parents; the right of parents to guide and care for their minor children; and the duty of a British court to protect any person seeking the writ of habeas corpus?
What is the true objective of the proponents of the position adopted by the Court in this case?
Is it to protect the public fisc against the costs of care of hopeless cases? Then why not let the parents obtain care for the child, as they seek to do, at their own expense or, in any event, at the expense of someone other than Britain’s socialist health care system?
Is it to protect the public fisc, as some contend, against the possibility that English tort law gives the parents a right of action against the hospital and the doctors for negligent care if the child reaches, as he will within a fortnight, the age of two years? That is, is the aim of the decision, not to mitigate the child’s suffering but, instead, to make sure that the child does not reach an age when his claims against those who may have maltreated him become actionable? If so, should that not be honestly stated?
Or is it to establish the principle that none of us — oneself if one is an adults; or by one’s parents if one is a child — is in charge of his own life, but we must all surrender our autonomy to the supreme knowledge of doctors and hospital administrators (even if we arrive in their clutches by the merest chance)? Then are not the lives and liberty of all of us at risk?
This is a dark hour for British justice. Parliament and the British judiciary stand indicted by their own actions and inactions of cruelty, intellectual dishonesty, and the high crime of hostility to life and liberty.
People the world over have hitherto so admired British justice that they have written into countless contracts choice-of-law and choice-of-forum clauses that would bring their disputes under the laws of England — hitherto the “Gold Standard” (a phrase the Court uses as a substitute for the reasoning that it shows itself incapable of articulating) of human justice. Perhaps universal admiration of British justice needs to be reconsidered. The case of Alfie Evans provides a far more compelling reason than “Brexit” for potential litigants, the world over, to want to keep British courts out of their affairs.
The message of the case of Alfie Evans is that British courts can no longer be trusted to protect life and liberty and have, instead, surrendered themselves to the supremacy of bureaucratic tyranny that is the antithesis of the rule of law.
Don’t take my word for it. Read the decision of the Supreme Court of the United Kingdom yourself. It’s only four pages long. Ask yourself if this is persuasive jurisprudence of the kind that once made the brain acknowledge the rigor of British judicial reasoning — and made the heart swell in admiration of British justice.
Joseph A. Morris is a Partner in the law firm of Morris & De La Rosa, with offices in Chicago and London. He maintains an active practice conducting trials and appeals in the areas of constitutional, business, labor and international law.