Pater knows best : withdrawal of medical treatment from infants in Scotland

Brown, Jonathan and Christie, Sarah (2020) Pater knows best : withdrawal of medical treatment from infants in Scotland. Oxford Journal of Legal Studies, 40 (4). 682–707. ISSN 0143-6503 (https://doi.org/10.1093/ojls/gqaa019)

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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 call 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.

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