July 14 2024
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Ashya King: Is it a crime to take your child out of hospital without consent?

Ashya King: Is it a crime to take your child out of hospital without consent?

Is it a crime to take your child out of hospital without consent?
Recently, a little boy called Ashya King was taken out of Southampton hospital by his parents. He is now in a hospital in Spain, where he doesn’t speak the language, surrounded by strangers, and not allowed to see his parents – a situation which cannot be in anybody’s best interests, least of all his.

  • This article first appeared in Peter English’s random musings blog. Peter English is a doctor in public health and health protection. Before coming into public health he was a general practitioner. His interests include vaccination and medical ethics. Dr English blogs and posts in a personal capacity – nothing he writes in his blog should be assumed to represent the views of anybody other than himself, including his employer
  • For background on the case, read Bracken Stockley’s report here

There have been many media reports, including recordings of statements made by the police. But the full facts are not now – and may never be – in the public domain.

What appears to be the case is that:

  • Ashya had had an operation to treat a brain tumour. We don’t know whether the treatment was palliative (to reduce symptoms); an attempt at cure; or an attempt to prolong his life.
  • He was being fed by some sort of machine – I got the impression they were talking about a nasogastric tube (an idea supported by the photographs in this report); but they could also have been referring to nutrition being provided directly into his blood system through some sort of drip (a form, perhaps, of ‘total parenteral nutrition’ (TPN)).
  • His parents – with the knowledge and agreement of the ward staff took him off the ward on Thursday morning. The ward staff’s assumption was that he would remain on hospital premises. Concern was raised when he did not return after some hours.
  • When Ashya had not been returned to the ward, the alarm was raised in the hospital, and a search made, which failed to find him.
  • After this, the police were informed. Statements were made saying that the battery on his feeding machine was expected to run out of charge, and it would require changing to keep feeding him.
  • At some time on Friday it is reported that Ashya was made a temporary ward of court – but by then he may already have left the country.
  • Reports subsequently indicated that Ashya was in France, and then in Málaga, Spain.
  • We then heard that the UK police had issued a European Arrest Warrant, and that Ashya’s parents had been detained under this warrant, while Ashya had been admitted to a hospital in Spain.
  • We have also heard that the parents are Jehova’s Witnesses; and that they had gone to Spain to obtain proton beam treatment for Ashya that they had been denied in the UK. (It seems that UK doctors had decided that Ashya would not benefit from this treatment, but that his parents disagreed with this view.)
  • We have more recently heard that from the hospital that: ‘Throughout Ashya’s admission we have had conversations about the treatment options available to him and we had offered the family access to a second opinion, as well as assistance with organising treatment abroad.’

Suzanne Moore has written an excellent column in the Guardian about this. I’m going to consider a bit further the way the law has been used – or possibly abused – in this affair.

Was Ashya at risk?
The first question is, was Ashya at risk? Of course, we don’t know the details, so we can’t really say what the risk to Ashya was. And being at risk is not binary. If you say that either a child is ‘at risk’ or ‘not at risk’, what you are saying is that the risk the child is exposed to does, or does not, exceed a threshold you consider acceptable.

Ashya was well enough for it to have been considered safe for him to leave the ward for an hour or more with his parents. So it’s reasonable to deduce that his life wasn’t at imminent risk if he wasn’t on the ward where immediate treatment could be provided. It’s therefore likely that the risk to him in travelling in a car for a few hours wasn’t excessive.

It has been suggested that his cancer was considered incurable, and that he did not have long to live anyhow. If that were the case, there’s a good case for saying that the most important thing would be to make what life he has left as pleasant and rewarding as possible for him – the ‘taking him on a last holiday’ idea isn’t a daft or inappropriate one. But again, if he had a good chance of survival, and the parents believed that proton beam therapy might, for example, cause less collateral brain damage, that might not seem an irrational reason for it – even if his doctors disagreed.

But of course, it would seem that he would need to have his TPN or nasogastric feeding continued, and his symptoms controlled; and that if he wasn’t fed and kept hydrated he would die quickly. This report suggests that his parent had, in fact, obtained supplies of his nasogastric feed, and been able to connect the feeding machine to the car electrics to keep it charged up, all suggesting that they were competent to provide the care he needed on his journey to Málaga; and indeed, it is now evident that he arrived there alive, showing ‘no visible signs of distress’, and not greatly the worse for his journey.

What should have been done?
Ashya King was clearly a very ill child. It was entirely reasonable to be concerned about his being taken from the hospital by his parents. He may not have needed treatment immediately, and been safe enough out of hospital for a few hours, even a few days; but he was clearly going to need further treatment. It was therefore entirely appropriate to raise the alarm and to send messages to his parents via the media, to check that he was receiving the care he needed – as it now seems that he was.

If the hospital had had concerns that the parents might take the child out of hospital and prevent him from receiving appropriate care, they should have done a risk assessment and considered applying for a Place of Safety Order (PSO) or a court order making the child a ward of court. Indeed, it would appear that somebody in the hospital did consider such a course: ‘[His father] claimed that doctors had threatened to put an “emergency protection order” in place after he questioned the strength of the chemotherapy and radiation that doctors suggested as treatment for Ashya, following his surgery.’ Why this was not done is not clear – perhaps because it was very clear to all involved that the parents, as they claim, only wanted what was best for Ashya. It is normal practice to advise parents that if they don’t comply, you will apply to the court – and only to do so if they indicate that they will not comply with the treatment proposed.

It has also been reported that Ashya was made a temporary ward of court on Friday – but it is not clear what this means if the parents were not aware of it, and possibly already out of the country. On this occasion it is quite possible that the family decided that the hospital was not going to provide the best treatment for Ashya, and might prevent them from obtaining it, and therefore carefully removed him from the hospital without informing anybody for fear that they would be preventing from doing so. As far as I am aware, while this may be exceedingly unwise and possibly put the child at risk, it is not an offence in law. It is not clear what crime the parents are supposed to have committed in taking Ashya to Spain; nor what the justification for issuing a European Arrest Warrant are.

Had his parents committed a crime? What are the limits of parental responsibility?
The normal presumption is that, unless there is evidence to the contrary, parents want what is in the best interests of their children.

For that reason, parents – and others with parental responsibility (not such a simple concept as it might at first seem, as explained here) can consent (or decline consent) to treatment on behalf of their children.

Once a child becomes old enough to understand the implications of the medical treatment, and of refusing it, they may give consent for themselves – they are ‘Gillick competent’. (Oddly, in law, while they can consent to a treatment, they can’t refuse it until they reach the age of 18 – although in practice it would be extremely unusual to force treatment on a resistant teenager.) While the age of majority is 18 years and until that age a child is a minor, in practice, for the purposes of giving consent, a child is, in England and Wales at least, considered competent to consent at the age of 16 years. (If an adult does not have capacity to give consent, the mental capacity act may apply – see here for more information on consent.) Ashya was too young to be likely to be Gillick competent, even if the consequences of his illness and treatment hadn’t damaged his cognitive abilities.

It does not appear that his parents had refused consent to treatment. Society puts the welfare of children over the wishes of their parents. If a child is likely to suffer if a treatment is withheld, there are ways to proceed, which are described here.

Why might Ashya’s parents have taken him without consent, and was it sensible to do so?
It seems clear from the reports published to date that Ashya’s parents wanted what they considered the best for Ashya.

It is devastating to be told that your beloved child has a serious illness that is likely to kill them in months; and that prolonged treatment might save their life, but might leave them with brain damage that will cause serious impairment. As death becomes more likely, many parents will look around for miracle cures that have a chance to save their child. There are clinics – such as the Burzynski Clinic in Texas that exist by preying on parents of children with such conditions, offering hope through treatments of unproven benefit.

In this case there is a novel treatment, proton beam therapy, that might – and I do not know enough about it to have an opinion on this – offer some hope to patients such as Ashya. It would appear that the NHS had not offered this treatment to Ashya, although it’s not clear to me whether this is because it is thought to be of no benefit for people with his condition, or whether it is because it is an expensive and unproven experimental treatment. On balance I am inclined to believe that the decision was probably correct – that the proton beam therapy was not sufficiently likely to improve his condition, and the costs – not least, the harm to Ashya of having to travel to another country where it is available – were likely to be greater than any likely benefits. But it would appear that his parents – possibly rationally, but under the sort of duress that is driven by desperation – came to a different conclusion.

The hospital claim that they did discuss treatment options with Ashya’s parents – including having conversations about the treatment options available to him and offering the family access to a second opinion, as well as assistance with organising treatment abroad. I believe them; but I think it entirely possible that Ashya’s parents, perhaps after the threat to obtain an emergency protection order, might not have believed they were genuine.

I think it was very unwise of Ashya’s parents to take him to Spain without having this organised by or at least with the support of the hospital; but their decision might not be entirely irrational.

What crime – if any – did Ashya’s parents commit?
As I’ve described above, parents are considered to be competent to decide what is in the best interests of their child, and legally they may do so until the point where a court order or similar (I shall use ‘court order’ for short) is taken out against them. It would be contrary to a fundamental principle of English law to be able to create an order that applies in retrospect. The hospital might well wish that such an order had been in place before Ashya’s parents removed him from the hospital. They may even be confident that had they applied for one, it would have been made available, urgently. But unless a court order had been obtained, and the parents made aware of it, I cannot see that they were committing any crime simply by taking Ashya out of the hospital and out of the country. The court order obtained on Friday appears to have been ‘shutting the stable door after the horse has bolted’. It is possible that the fact that the family were in Spain when there was a court order preventing them from taking Ashya away might be the justification for the arrest warrant; but unless the court order applies to people outside the English jurisdiction, or the order was obtained before they left the country AND the parents knew about it, it is hard to see how they could have committed an offence, let alone ‘an offence [which] is punishable by imprisonment or a detention order for a maximum period of at least one year’.

It has been suggested that they might be guilty of neglect by doing so; but the evidence reportedly presented by the family that they only wanted what they considered to be the best for him, that they would be able to feed and care for Ashya until they got him to a hospital in Spain where the proton beam therapy was available – and the fact that he arrived there seemingly no worse for the experience – seem to suggest otherwise. As I understand it, there is a fairly high bar to proving neglect, and it seems unlikely to me that a court would find this.

It is possible, of course, that after Ashya was taken from the hospital a court order (probably a place of safety order) was obtained; but I doubt that it would be possible to prove that the parents were  breaking the law unless you could prove that they knew of the existence and content of this order. And I am not at all sure whether – such an order would apply once Ashya had left England: in fact, I doubt very much that it would.

So it seems extremely unlikely to me, on the information in the media, that the parents will have committed an offence in law, let alone , or that it would be an offence meeting the minimum threshold for a European Arrest Warrant. (Of course, if they’d seriously assaulted a health care worker or something in the process of removing Ashya or something like that, they may have committed such an offence; but given that they’d been gone for some time before the alarm was raised this seems unlikely; and on the basis of past evidence the police seem to be very quick to publicise – even exaggerate – any offences that people might have committed when they’re trying to arrest them.)

If no offence was committed, it is hard to imagine how a European Arrest Warrant was obtained. Perhaps it was obtained because an arrest warrant can be obtained on suspicion – and it may have been suspected – not knowing that the parents had feed, power for the equipment, and other medical necessities for the journey, and were taking Ashya directly to a hospital in another country – that they were guilty of neglect. But given that we now know (or at least, have cause to think it likely) that that’s what they had done, the suspicion of neglect surely no longer exists, and the basis for the warrant is no longer valid.

Is it proportionate to hold Ashya’s parents in custody…and to keep Ashya in hospital, surrounded by strangers?
It’s seems clear that his parents were only doing what they considered (however unwisely) best for him; and it seems clear enough that they don’t intend to take him out of the hospital he’s now in. I would have thought the best thing would be for the parents to be released – and perhaps for the Spanish equivalent of a place of safety or ward of court order to be obtained, if it’s thought at all likely that the parents might do this again.

The current situation – not allowing Ashya’s parents to have contact with Ashya – seems to me to be likely to be illegal, and a breach of their human rights; but, more importantly, it is in nobody’s best interests, least of all Ashya’s.

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