Case Commentary on Alfie Evans.

Case name and citation

Alder Hey Children’s NHS Foundation Trust v Mr Thomas Evans, Ms Kate James, Alfie Evans (A Child by his Guardian CAFCASS Legal) [2018] EWHC 308 (Fam).

Introduction

In this short case commentary, I am going to set out the key facts of the case, the legal question posed and the legal outcome. Commentary is going to focus upon what interesting features the case possesses, some hint at continuing trends and other aspects I have never personally witnessed before in such a case.

Facts

  • Alfie was born a healthy baby, issues only became apparent when he was a few months old, this culminated in Alfie being admitted to Alder Hey Hospital.
  • The doctors are all in agreement that Alfie is suffering from a fatal neurodegenerative disorder.
  • Aflie’s parents who are Roman Catholic want to move him to the Vatican hospital to undergo a tracheostomy and be fed via PEG (at 40).
  • Alfie is currently on artificial ventilation.

Appellate history

This case commentary is on the High Court decision of Justice Hayden (see citation above), this judgment was upheld by the Court of Appeal on the 6 March 2018 (judgment yet to be made available). However, the parents have lodged a request for appeal with the Supreme Court. We are yet to know the outcome of this request.

Legal Question

This case is an application request, whereby ‘the trust seeks a declaration that continued ventilation support is not in Alfie’s best interests and in the circumstances it is not lawful that such treatment continue’ (at 1).

Legal Outcome

Hayden J.  granted the application, deciding that it was in Alfie’s ‘best interests’ to be taken off of artifiical ventilation and to receive solely palliative care. He commented that Alfie ‘requires peace, quiet and privacy in order that he may conclude his life, as he has lived, with dignity’ (at 62).

Commentary

This case, can on the surface, seem to be much of the same, but it does contain a few aspects that are worthy of noting.

Firstly, this case joins former cases such as Kings College Hospital NHS Foundation v MH [2015] EWHC 1920, in that the judges utilise medical professional guidance in their judgement to ascertain the clinical position on the issue. In Alfie’s case Hayden discussed the Royal College of Paediatrics and Child Health guidance entitled: ‘Making Decisions to Limit Treatment in Life-limiting and Life-threatening Conditions in Children: A Framework for Practice’ (at 46).

Is this trend evidence of further deference to the medical profession or is it merely judges utilising the guidance provided to the doctors in the cases?  It is most probably the latter, although it does create a cause for concern in that the judges may be elevating the status of these professional guidance documents, they after all have no legal standing.

Secondly, this case follows the trend of judges going to personally visit the child, whose life they are debating, very much like the fictitious High Court judge Fiona Hayes from Ian McEwan’s The Children Act (I recommend highly). I believe this is a positive movement, indeed it allows the judge to put a face to the name. In this case, Hayden J’s visit to Alfie, led the former to comment that ‘the atmosphere around Alfie was peaceful, dignified and through some might find it surprising for me to say so, very happy’ (at 54). Such visits may help relations between the parents and the court.

The last dimension of the case that warrants discussion is the use of religious opinion on matters of life and death. This is embodied in an open letter by Pope Francis, put forward by counsel for the applicant. This is something I have never personally seen in any of the cases I have read, even cases where the religious position of the parents is discussed. (If anyone has seen such practices in other medical law cases, I would love to know!).

In regard to the aforementioned open letter, Hayden J. commented that the Pope ‘called for “greater wisdom” in striking a balance between medical efforts to prolong life and the responsible decision to withhold treatment when death become inevitable’ (at 52). The use of religion here, I find somewhat problematic. Is counsel for the applicant and then Hayden J. trying to make it seem like the parent’s religious views are unfounded? It makes me a little uneasy.

Conclusion

This case therefore, offers up much of the same, adding itself to the long list of cases where parents disagree with the medical professionals over what is in the ‘best interests’ of their child (see my case commentary on Charlie Gard for more on this). However, it offers up interesting aspects, namely the increasing reliance by judges on medical professional guidance, judges interacting personally with the children whose lives they are discussing and lastly the case offers up something new, to me anyways, the use of religious speeches/open letters.

As noted above, this case is not over yet since the parents have lodged an appeal request to the Supreme Court. So keep an eye out to see what happens with this application, although it can be hypothesised that the application will be denied.

Belle Le Gallez

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2 thoughts on “Case Commentary on Alfie Evans.

  1. Matthew Naughton March 11, 2018 — 7:53 am

    I don’t understand, what kind of conclusion is “death become inevitable…”? Every living creature since the dawn of life has been doomed to ultimate demise. Also, how many recommendations did judge Hayden use from each side, was it fairly balanced or was ALDER HEY’s support overwhelming? Shouldn’t both sides have equal representation?

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    1. Hi Matthew,

      This area of law often polarises opinion, due to it focusing on the life and death of an individual.

      It should be remembered that one of the key principles leading judges in these sorts of cases is that there is a strong presumption in favour of preserving life (see Holman J in An NHS Trust v MB [2006] EWHC 507 (Fam). So it is not something that the courts disregard.

      In regard to the relative weight of the medical opinion and the weight of the parental opinion, this is something that a lot has been written upon. This area of law is fraught with medical/parental clashes (although it is worth remembering that co-operation and a united front is the norm on the wards where these children are being treated). In this specific case, I would say that Justice Hayden did well to balance the two sides, it is a very hard task, that I do not envy. You may be interested in looking at the literature surrounding ‘best interests’ and how it incorporates not solely medical information but also the emotional and social well being of the child. One issue with this however is that medical opinion, in the form of statistics etc. always seems to come across as more weighty as opposed to the sometimes anecdotal discussion of the child as a part of the family.

      I hope that answers some of your questions,

      All the best,
      Belle

      Like

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