Judges in the Alfie Evans Case Failed to Convince a Large Part of Humanity

It was always overwhelmingly likely that Alfie Evans would die, probably in hospital, perhaps at home, within a short time of his story becoming an international one. If the consensus of doctors, not only in Alder Hey but elsewhere too, was even close to accurate, his survival would have required a miracle in the strictest sense of a divine intervention in the natural order. There are records of such events, for instance in the medical chronicles of Lourdes, but they are not to be presumed upon. A miracle in the lesser, colloquial sense of some highly unlikely event, such as a new and hopeful diagnosis, was the best to be rationally hoped for — and in the event too much for that.

Yet when Alfie died early on Saturday morning, there was a widespread sense of shock as well as sorrow. The little boy had fought so hard to keep on breathing that even hardened skeptics had begun to wish against reason that he might somehow triumph over death. Of course, Christians believe that in the most vital sense Alfie has already triumphed over death: A baptized child below the age of reason, he is in paradise. We need his prayers rather than he ours. And I should perhaps add a doubt that he is preparing to judge, perhaps harshly, those who took different views from those of “Alfie’s Army” on how he should be treated medically.

Let me be clear: It’s the conclusion of this article — spoiler warning — that the decision of the British courts, confirming the medical advice of the Alder Hey doctors, that Alfie’s parents should not be allowed to take him, for additional treatment, from Alder Hey in Liverpool to a hospital in Rome connected to the Vatican was a serious moral mistake. There was nothing wrong with that advice from a purely medical standpoint; in a sense, Alfie has confirmed that by dying. Those who rage at the doctors should remember that they have kept the little boy alive for more than a year and would have continued trying to restore him to better health if they had found any scientific basis for doing so. Alder Hey’s doctors did everything that doctors can do for their patient. But a doctor cannot invest all the emotions of a parent in his medical judgment and still function as a doctor for his patient and all his other patients. They were entitled to argue that further attempts to cure him would be medically pointless and to advise Alfie’s parents that the best course would be to give him palliative care as his body gradually betrayed him.

And Alfie’s parents were entitled to thank them, to reject their counsel, and to seek second opinions from other doctors. When they did exactly that, however, the courts intervened to insist that Alfie should be left in the care of Alder Hey, where doctors would confine their care to ensuring that his last hours were as painless as possible. Now, if that’s wrong — a serious moral mistake, as I call it above — why is it wrong?

The reason it’s wrong is not the frequent accusation that Alfie was being deprived of treatment because it would cost Britain’s collectivized National Health Service too much money. It’s legitimate to raise such questions, as American commentators have done, because the NHS does promise to provide all U.K. citizens with the full range of medical treatment without payment at the point of consumption. That promise can’t be kept. Given the relentless rise in the costs of health care, if the NHS is not to consume Britain’s entire national income over time, it must impose some form of medical rationing. Its budgetary priorities then emerge in disguise as clinical decisions, which means that patients have to wait long periods for operations or receive less than ideal drugs. In a phrase: death panels.

But that wasn’t happening here. Ending Alfie’s treatment was a decision driven not by cost control but by the idea that his treatment was futile. And futility is as much a moral as a medical judgment. It is also a judgment that needs a little unpacking. Adults sometimes seek a second opinion or unorthodox treatment for conditions all the experts judge to be terminal. They do so for a range of reasons: It extends their lives a little, gives them hope while doing so, very occasionally succeeds, and does no harm besides. Some people who have taken that decision only to find death at the end of a short excursion have nonetheless been glad to have made the attempt. Is it therefore right to call such a decision futile? I don’t think so. Besides, even if I did think so, it was their decision to make. Alfie cannot make that decision for himself. So it has to be handed by the doctors to Alfie’s guardian, who, at most times and places, would be his parents.

In technical legal terms, Alfie’s case was treated as a dispute between his court-appointed guardian and his parents. But no one thinks that between Alfie and his parents, Kate and Tom, there existed a real dispute that required court intervention.

Not today and not in Britain, where the courts have increasingly been asked by government to replace parents on a wide range of issues, very often including the medical treatment their children should receive. Everyone can grasp the justification for this when parents are refusing life-saving blood transfusions for a child on religious grounds and the courts mandate it. It is plainly less justified (or even simply unjustified) when the courts allow children to have abortions without their parents’ knowledge. And it is positively eccentric if, as in Alfie’s case, the courts prevent parents from arranging for their children to receive medical treatment intended to extend their life. Every level of the U.K.’s court system reached that decision, however, and it was in effect endorsed by the European Court of Human Rights when the case was referred to it. All of these legal judgments essentially repeated and endorsed the doctors’ judgment that further treatment of Alfie would be futile, and accordingly concluded that ending his life was the right thing to do. And they rooted their decision in the view, expressed in U.K, legislation, that the interests of the child should be “paramount,” that allows the courts, rather than the parents or anyone else, to interpret what those paramount interests require.

Now, it’s worth pointing out that if the court had been arguing that the parents should be overruled in order to give Alfie medical support to stay alive, there would have been little or no opposition to their verdict. In cases where the parents are taking or allowing actions that apparently harm a child, court intervention is more or less unanimously supported on the reasonable grounds that a dispute within the family exists and needs external adjudication. In technical legal terms, indeed, Alfie’s case was treated as a dispute between his court-appointed guardian and his parents. But no one thinks that between Alfie and his parents, Kate and Tom, there existed a real dispute that required court intervention. On the contrary, the judges all felt compelled (like every other commentator) to express admiration for the love they had shown their little boy. In the absence of a genuine dispute, then, the courts were simply substituting their opinions for those of Tom and Kate, as the law allows them to do.

But in this and similar cases, there is never unanimous support for the court’s verdict. On the contrary, a very large part of the modern world — including the pope, the Italian government, the Polish president, the doctors at the Vatican hospital offering to treat Alfie, and a wide variety of religious and political commentators — was outraged by the courts’ verdict. The idea that the paramount interests of the child required forbidding his parents from moving him to another hospital where doctors were willing to treat him was a paradox too far. As several commentators asked, notably Ramesh Ponnuru at Bloomberg, if no harm would be done to the child by moving him to the Rome hospital — and doctors and judges generally agreed that Alfie felt no pain, though one judge used the possibility to buttress her argument — why on earth should a government intervene to stop his parents from trying to keep him alive for even a little while longer?

At various points in the legal process, judges tried to answer this question. And though they did so to their own collective satisfaction, they failed to convince a large part of humanity. Their essential argument is that moving Alfie was irrational when it was almost certain that it would not save his life or extend it substantially. But was it irrational for his parents to try to keep their child with them a little longer? Or to assist his own instinctive efforts to stay alive? Or to move him to where they thought the doctors might be more sympathetic to their hopes and his struggles? Or to help Alfie to the point where they could say to themselves later that they had done all anyone could do to keep him with them? The judges seem to think that these passionate considerations were irrational and that the court should intervene to ensure that no one got carried away by them. It is a cool and distant outlook. And it persuaded at least one judge to take a decidedly patronizing view of Tom and Kate in general (mixed, of course, with admiration for their fight) that reads, well, awkwardly in cold print. My colleague Nicholas Frankovich quoted her words two days ago:

It is clear and understandable that they have been unable to think through the disadvantages for them as a family to relocating either to Italy or Munich without the support of their extended families and unable to speak either language, in order to be able to spend Alfie’s last weeks or months in what they currently regard as a more empathetic environment. [Our italics]

As Nick pointed out, there wasn’t much to support these dismissive comments. Both parents, Tom in particular, waged a very effective public campaign on two continents to get different medical treatment for Alfie. Ordinary, working-class people manage to travel abroad, get affordable accommodation, and pursue all kinds of cultural experiences for far less urgent purposes. It doesn’t seem as if the tasks listed by the judge would be beyond any of them.

Irving Kristol pointed out that America, considered in religious-versus-secularist terms, was a country inhabited mainly by Indians but governed by Swedes. That worked as long as the Swedes respected the opinions and practices of the Indians.

What emerges from this case is that a cool and prudent judicial outlook is vital when it comes to sifting evidence and choosing between conflicting precedents. But it leaves a great deal out of life, including love, sacrifice, and faith — religious faith but not only that — and it has no great confidence in the abilities of those who haven’t passed professional exams or been to university. But half the great things that people achieve in life looked impossible when they embarked on them. Given that millions of people in Europe and America were moved and thrilled by the struggles of Alfie and his parents, we must assume that they share in part the emotions and the calculations that drove them — the very emotions and calculations that the judges regard as irrational, wasteful of effort, pointless, and needing to be curbed by wiser minds.

Paul Goodman at the website Conservative Home and Damian Thompson at The Spectator have both focused on this point, suggesting that responses to the Alfie Evans case reflect a wider division in modern society between those who still adhere to a religious interpretation of life and those who have embraced a colder and more scientific outlook. This division is sharpest and most painful on issues such as end-of-life dilemmas; and though Catholicism has been in the front line on this occasion, all orthodox religious denominations that resist liberal erosion are suspect to the dominant progressive consensus. Southern Europe, traditional Catholics, and American Evangelicals belong to the first category; Northern Europe, mainline Protestants, and post-Christian liberal intellectuals, to the second. Secularism is advancing, and as a consequence cultural traditionalism and the religious view of life are retreating.

Or so it is claimed. How validly? Paul Goodman cited Ireland as an example of a society moving from the first to the second category, and he predicted that the forthcoming referendum on removing a constitutional restriction on abortion would confirm that change.

There is certainly such a division, and Paul is broadly right in outlining its current borders. It is not especially new, however. Several decades ago Irving Kristol pointed out that America, considered in religious-versus-secularist terms, was a country inhabited mainly by Indians but governed by Swedes. That worked as long as the Swedes respected the opinions and practices of the Indians. What has changed is that the Swedes no longer think these things deserve their forbearance: The religiously-minded Indians must be brought into line. And that has changed across the West. But it must be doubted that even a mild-mannered dictatorship of relativism can be imposed on millions of people who believe they are being ordered to despise God and His commandments. It’s simply unsustainable. Throughout Europe there are rebellions against the rule of progressive elites on moral as well as nationalist and populist issues. Poland in the North is sharply divided on them; Hungary’s prime minister describes his country as a Christian nation. The Irish debate on abortion has suddenly taken fire, and its result seems less certain to favor the pro-choice side than it did a month ago. And not all intellectuals have given up on religion — indeed, they increasingly wonder if many of the ills afflicting their nations, notably the malaise of cultural self-hatred, does not have its origins in the attempt to drive religion from the public square — as this debate between two of France’s most distinguished political theorists demonstrates.

Alfie Evans has died, and his parents are grieving. We should pray they are given the strength to cope with their grief. But people on both sides of this divide will now be feeling differently about life, death, and the power of love as a result of what they have suffered. And we should let them know that.

Original article here.