This article is taken from the November 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

In 2020, Baby NR was born with significant disabilities, including a brain malformation. His doctors thought his prospects were so poor that they applied to the High Court, first to withhold CPR if his heart stopped, then for a declaration that it would be in his best interests to remove him from his ventilator and let him die.

The parents are devoted Orthodox Christians who opposed the applications. The Children’s Guardian supported the NHS Trust. Mr Justice Poole visited Baby NR in hospital, took evidence and on both occasions made the orders.

He also offered his utmost sympathies to the parents. So far, this is a familiar story, repeated many times each year in the Family Division.

But in September, five months after the judge allowed his doctors to cease life-sustaining treatment, the parties were back in court. The doctors had testified that Baby NR would live for a few hours, a few days at best after he was extubated.

Five months later, Baby NR was still alive, was showing signs of improvement, and was well enough to be cared for at home, something which the Court had previously accepted would never happen.

The parents were understandably angry at everyone involved. They had readied their hearts for their only child’s death, but the doctors and the High Court and the Children’s Guardian had all been wrong. Far from being embarrassed, King’s College Hospital NHS Foundation Trust asked the court to keep in place the declarations for withholding resuscitation and treatment, never mind that their doctors had been terribly wrong.

Poole J tried to put a positive spin on the whole affair. Had he not ordered Baby NR to be removed from life support, he said, he may not have recovered as he did. Had he known that Baby NR’s condition would improve after extubation, he would also have ordered it in the same manner. In the end, according to the judge, the court had done nothing wrong.

With all due respect to his lordship’s Panglossian spin, this is arrant nonsense. The doctors asked for, and the court allowed, the withdrawal of life support fully expecting that this would lead to Baby NR’s demise. They did so based on their sincere and confident assessment of the situation, which proved to be mistaken.

This case brings to mind a second one, this time in the Court of Protection. Sudiksha Thirumalesh was a young woman who suffered from a rare mitochondrial disorder. Her doctors applied to the Court to send her to palliative care, over her strongest objections, as a hopeless case.

Roberts J ruled that Sudiksha lacked the legal capacity to decide her own medical treatment because she was delusional for thinking that she could live if she received experimental medical treatment. Because of reporting restrictions, Sudiksha could not even be named publicly, so that her family could not raise money for her experimental treatment overseas.

The court’s ruling against Sudiksha was posthumously overturned on appeal

On 31 July this year, the Court of Appeal overturned Roberts J’s decision as being wrong in law and against the terms of the Mental Capacity Act 2005.

The decision came too late for Sudiksha, who died shortly after the Court of Protection’s decision.

I do not know if Sudiksha would have lived had she been allowed to receive experimental treatment in Canada. I will assume she would have died anyway. I do know that it is not anyone’s job, not even that of a judge, to tell someone that they are wrong for believing in life.

The Court of Appeal has now affirmed this principle as a matter of law, but the vindication came too late for Sudiksha, who was neither delusional nor mentally impaired for not wanting to die.

We should not expect perfection in judges, lawyers or doctors. They are fallible. In English family law, the standard of proof is the civil one, meaning that the judge has to be satisfied that something is more likely than not.

There used to be some authority for the existence of a heightened civil standard in family law cases of great seriousness, but the House of Lords rejected it in 2008. It is perhaps worth asking whether it is adequate for decisions of life and death to be made regularly on a standard of proof lower than that required to convict a shoplifter.

Finally, as this column goes to print, Kim Leadbeater MP will introduce legislation that, if enacted, would legalise assisted suicide. If the early indications are correct, the bill will require the person who wishes to die to have less than six months to live, and a High Court judge will have to give permission before they can end their life.

Yet we know from the highest medical authorities that it is very difficult, if not impossible in many cases to predict the remaining life expectancy of a patient with that degree of certainty.

This country abolished the death penalty in large part because it felt that the risk of a wrongfully convicted person being executed outweighed the moral imperative for capital punishment. There is no reason to hold proponents of assisted suicide and euthanasia to a lower standard.