The legal wranglings surrounding the fate of nine-month old Charlie Gard are now beginning to approach their conclusion when the Supreme Court will hear an emergency proceeding next week.

On one side the Great Ormond Street Hospital will argue that Charlie’s life support should be withdrawn due to the irreversible structural damage to his brain meaning that he is now unable to breathe without a ventilator and is being fed through a tube. The argument follows that these artificial life supports should now be removed and Gard should be allowed to die with dignity.

On the other side Charlie’s parents, Connie Yates and Chris Gard, want to take Charlie to the United States so that they can proceed with experimental medical treatment in a final bid to save their son. So far the couple have raised far more than the £1.2million needed to cover medical costs in America

Connie Yates and Chris Gard with their son Charlie. (Family handout/PA)

The Treatment

Charlie Gard suffers from a form of mitochondrial disease that causes muscle weakness and brain damage. The nine-month old is unable to produce a compound called deoxy-nucleoside that is normally produced naturally in humans. The hope is that if this is given to Charlie then his DNA can be repaired.

Medical opinion, however, is doubtful that the treatment will be successful after consultation with doctors from Great Ormond Street Hospital as well as experts in Spain.

Legal Proceedings

The case first came before the Family Division of the High Court before Justice Francis where, with reference to the ratio in Wyatt v
Portsmouth NHS Trust [2005] EWHC 117, it was held that it could not be said that transferring Charlie to America for further medical treatment was truly in his best interests and this is ultimately the paramount concern at the heart of the case.

Interestingly at this stage the doctor who is developing the new treatment reviewed Charlie’s case and made the following comment:

“Seeing the documents this morning has been very helpful. I can understand the opinions that he is so severely affected by encelopathy that any attempt at therapy would be futile. I agree that it is very unlikely that he will improve with that therapy.”

The Court of Appeal concurred with Justice Francis despite also sharing their greatest sympathies with Charlie’s parents.

A week today three Supreme Court Justices will not actually hear an appeal but rather whether permission will be granted to appeal. If they are successful then a separate date will be set aside for the case to be heard in full.

Conclusion

Given the way that things have gone so far for Yates and Gard it is hard to be positive about their prospect for success either at this request for permission to appeal or before the Supreme Court if things get that far.

Justice Francis was very diligent in his examination of the arguments and did not take the decision lightly. Ultimately the question to be asked is ‘what is best for Charlie?’ and it is a difficult case to argue that his present condition is truly any sort of life.

The best hope for Charlie’s parents is to argue that they should have a greater say in what is best for their own son. Furthermore Article 2 of the European Convention on Human Rights is the right to life and presents another potential line of argument that could be relied on although it is important to remember that this is a limited right and by no means absolute.

Make sure to subscribe to the podcast. I hope to cover the decision by the three Justice panel in a bonus episode next week.