Abstract
The cases of Charlie Gard and Alfie Evans placed the withdrawal of treatment from terminally ill infants at the forefront of medical law and ethics. In the medico-legal context, Scottish court procedures materially differ from those in England. This article considers these differences in light of the possibility that a similar case might soon be called before the Scottish courts. The Court of Session would then be required to consider whether to utilise its parens patriae jurisdiction to consent to the withdrawal of treatment as if it were the parent of the infant. The operation of this jurisdiction is such that the outcome of any Scottish case cannot be said to be certain, as the Scottish courts are bound to pay more heed to parental autonomy than their English counterparts do.
Highlights
The cases of Charlie Gard[1] and Alfie Evans[2] placed the question of withdrawing treatment from terminally ill infants at the forefront of medical law and ethics.[3]
The Court of Session would be required to consider whether to utilise its parens patriae jurisdiction to consent to the withdrawal of treatment as if it were the parent of the infant
It is submitted that the Scottish Court of Session would be faced with a greater legal and ethical conundrum—and potentially greater public furore—than the courts of England and Wales faced when applying the relevant law relating to the withdrawal of medical treatment
Summary
The cases of Charlie Gard[1] and Alfie Evans[2] placed the question of withdrawing treatment from terminally ill infants at the forefront of medical law and ethics.[3]. The legal test to be applied in ‘futile’ circumstances[9] asks whether the withdrawal of treatment would be in the child’s ‘best interests’.10 This metric is the same in Scotland as it is in the rest of the UK.[11] Perhaps for this reason, academic commentary concerns itself with ‘British’ courts, without distinguishing between the legal systems of the UK.[12] The conceptual framework underpinning the law on withdrawal of treatment rests on a fundamentally distinct basis in Scotland, since the Court of Session retains parens patriae (‘parent of the nation’)[13] jurisdiction over Scottish legal subjects.[14] It is not, accurate to say that physicians in Scotland have the power ‘to unilaterally withdraw or withhold treatment that they regard to be futile’;15 rather, physicians possess a de facto privilege, due to the flexible interpretation of the law following from Law Hospital NHS Trust v Lord Advocate,[16] to do so within certain parameters.[17] In practical terms, to suggest that this position differs greatly from that in England is (ordinarily) gard-should-make-us-question-our-attitudes-to-parental-autonomy/>; for Evans, see
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