Catastrophic Brain Injury: Judge’s Conscientious Decision
In what Sir Andrew McFarlane described as a truly tragic case in which 12-year-old Archie Batersbee’s interests had rightly and repeatedly been given the most anxious attention, the judge had made a conscientious decision that the Court of Appeal would not disturb and permission to appeal was unanimously refused: Dance & Anor v Barts Health NHS Trust & Anor [2022] EWCA Civ 1055 (25 July 2022) Sir Andrew McFarlane P (Family Division); King, Jackson LJJ
On 7 April 2022 Archie was found to be in a very profoundly damaged state by his mother, with a ligature around his neck in their home. He was taken to hospital where he had remained ever since and for some weeks had been in a deep coma and on a life support regime. He had not regained consciousness and his mother had not left his side.
Barts Health NHS Trust sought declarations from the High Court resulting eventually in a hearing before Arbuthnot J who made a declaration that Archie was brain-stem dead thereby permitting the Trust to withdraw treatment.[1]
On 29 June 2022 The Court of Appeal allowed an appeal against that decision[2] and directed that the matter should be returned to the High Court. On 11 July 2022 a full day hearing took place before Hayden J, V-P of the Court of Protection and a Judge of the Family Division. He concluded that it was not in Archie’s best interests for life sustaining treatment to continue and declared it lawful for his treatment to be withdrawn.[3]
In determining issues of this nature, a court was required to afford paramount consideration to the best interests, in the widest sense, of the individual child. A judge must maintain a keen and unwavering focus upon the child’s best interests throughout the hearing and it must be the central core of the concluding judgment. The question of whether this was demonstrated by the judgment of Hayden J was now at the centre of the parents’ case on appeal.
Tragically, the consequence of the catastrophic brain injury that Archie sustained on 7 April was that Archie was no longer the boy in the photograph which had achieved widespread Press and media publicity; he was someone whose every bodily function was now maintained by artificial means.
Counsel for the appellants accepted on behalf of the parents that there was no prospect of recovery and that Archie’s death was most likely to occur within weeks as opposed to a period of months or longer.
It was clear that the choice before the judge was an arranged removal of life sustaining treatment with the inevitability of death a short time later or the continuation of life-sustaining treatment in the knowledge that in the very near future Archie’s bodily functions would collapse in an unplanned manner.
The first two grounds of appeal asserted that the approach adopted by the judge, which involved disregarding or reinterpreting Archie’s express wishes and desires, was wrong in law because it was in breach of the rights established by a number of international conventions and that the judge was in error in failing to give reasons for his decision on each of those matters. It was clear that those two grounds failed on the basis that they had no reasonable prospect of success.
Ground 3 related asserted erroneous findings of fact but the judge’s finding on the absence of any prospect of recovery was based upon a comprehensive review of all of the medical evidence. The determination of questions of fact were pre-eminently matters for the trial judge, and the Court of Appeal would only interfere when there were clear grounds for regarding any particular finding as unsafe.
A second factual challenge was that the judge was in error in relying upon the evidence of an independent expert who conducted an informal brain-stem evaluation. It was not mentioned by the judge and was but one aspect of a full and comprehensive assessment which included finding Archie to be “entirely unresponsive with absent pupillary, cough, gag, corneal and ocular-vestibular reflexes” and “no respiratory effort during a 2-minute informal apnoea test”.
A third factual challenge relating to the judge’s finding that Archie could not breathe as a result of damage to his brain was not concerned with the mechanism (as suggested in the skeleton argument) but with the fact that Archie was unable to sustain breathing independently of the ventilator. A reading of the judgment as a whole did not indicate that the judge regarded this as being solely caused by brain damage. As the judge was not concerned to diagnose brain-stem death, it did not impact on the judge’s overall findings and therefore had no relevance to any potential appeal.
As to ground 4 of the appeal, against the judge’s findings on the medical evidence, in circumstances where Archie was unable to experience anything that occurred to him or around him (either painful or pleasurable), the judge was entitled to hold, as he did, that the medical regime “serves only to protect his death, whilst being unable to prolong his life.” Accordingly, his findings as to dignity and autonomy, futility and burden were fully open to him and entirely justified. Specifically, the judge was entitled to find that the treatment carried a burden for Archie, even though he had no capacity to experience pain and no conscious awareness.
It was plain that with respect to ground 5, the judge had full regard to the presumption in favour of prolonging life. The judge’s analysis, whilst being bleak in the extreme, was fully justified and in accordance with established principles.
The parents’ primary ground was advanced orally, and for the first time, during the hearing. The central criticism was that the judge failed to carry out a careful, clear and comprehensive evaluation of the benefits and burdens of the continuation of life-sustaining treatment.
It was important to stress that the proposed appeal did not engage any point of law. The criticism related entirely to the manner in which the judge conducted his assessment, it being accepted that he gave himself a correct direction on the law.
Whilst it was sadly correct that it was the medical evidence that ultimately determined the outcome of the judge’s best interest determination, he had clearly taken full account of the countervailing factors. Those factors, and in particular Archie’s individual feelings and religious beliefs, were insufficient to avoid a finding that the continuation of life-sustaining treatment was any longer in the best interests of this moribund child who was weeks away from a death which would otherwise occur from a gradual further deterioration and then failure of his organs followed by the failure of his heart.
The new ground of appeal related only to matters of form and not of substance, had no real prospect of success and there was no other compelling reason for granting permission to appeal.
But that was by no means the end of this tragic and unhappy saga:
28 July 2022
During the afternoon of 28 July, Archie Battersbee’s parents filed an application to the Supreme Court seeking a stay of the decision of the Court of Appeal. Because of the urgency of the application the Court convened a panel of three Justices who considered submissions from the parties on paper in the usual way (UKSC 2022/0115): Lord Hodge DP, Lord Kitchin, Lord Stephens
Having carefully considered the careful judgment of the Court of Appeal delivered by Sir Andrew McFarlane, President of the Family Division, the panel refused permission to appeal.
The panel was satisfied that (if the Supreme Court had jurisdiction to hear the application – a matter on which it had not been addressed) the application did not raise an arguable point of law that the Court of Appeal had fallen into error in exercising its discretion in the way in which it did.
01 August 2022
On 30 July a senior spokesman of the United Nations Human Rights Treaties Branch, requested the UK government to refrain from withdrawing life-preserving medical treatment, including mechanical ventilation and artificial nutrition and hydration.
The following day the government legal department, on behalf of the Secretary of State for Health, asked the Court of Appeal to consider the request urgently.
A further hearing took place in the Court of Appeal when the UK government, who requested the hearing, declined to make representations or appear by counsel.
Dismissing the appeal, Sir Andrew MacFarlane (sitting with King and Moylan LJJ) ordered a short delay in withdrawing life-sustaining treatments until noon on Tuesday 02 August: “Every day he continues to be given life-sustaining treatment is contrary to his best interests, so a stay, even for a short time, is against his best interests.”
Sir Andrew added that the Convention on the Rights of Persons with Disabilities upon which the UN committee based its request, was not part of the law of the United Kingdom and it was not appropriate to apply an unincorporated international treaty into its decision-making process.
It is anticipated that by tomorrow there may be a further bid to have the case heard by the Supreme Court.
02 August 2022
A further application for permission to appeal was dismissed by the Supreme Court (Lord Hodge DP, Lord Kitchin, Lord Stephens). The court’s task was to give paramount consideration to Archie’s welfare.
It had to be borne in mind that the central issue between Archie’s parents and the NHS Trust (which was supported by Archie’s very experienced Guardian) had not been about Archie’s recovery but about the timing and manner of his death. There was no prospect of any meaningful recovery. Even if life sustaining treatment were to be maintained, Archie would die in the course of the next few weeks through organ failure and then heart failure. The maintenance of the medical regime served only to protract his death.
The Court of Appeal had not erred but had made the correct decision. The reasons given by the Supreme Court were:
1 The courts had reached a decision which was compatible with Archie’s rights under the European Convention on Human Rights which had been incorporated in part into domestic law by the Human Rights Act 1998. It was not clear that Archie had any more extensive rights in international law under article 10 and 12 of the UN Convention under which the Committee operated.
2 Contrary to counsel’s submission, a decision by the courts in Archie’s best interests not to give effect to a request by the Committee to the UK Government for a stay did not involve what he called “a flagrant breach of international law”. To give effect to the application for a stay would be to act unlawfully in conflict with the court’s duty under domestic law to treat Archie’s best interests as paramount as the Committee envisaged a procedure for its consideration of the application which would extend into 2023.
3 In any event, the Convention under which the Committee operated was an unincorporated international treaty which bound the UK Government on the international plane and was not part of our domestic law.
4 The Court of Appeal, in exercising its discretion on the latest application, included in its balancing exercise the fact that Archie’s parents had made the application to the Committee and the Committee’s request. According to the law of England and Wales, Archie’s best interests and welfare were the paramount consideration.
03 August 2022
The European Court of Human Rights (the President) decided not to indicate interim measures in this case (application no 37412/22 – AB & ors v United Kingdom).
The request was made by the parents of the child in their own names and on his behalf.
Today the applicants made a request to the court under Rule 39 asking it to issue an interim measure preventing the hospital from withdrawing life-sustaining treatment. They argued, among other things, that the State’s failure to honour the interim measure given by the UNCRDP breached Article 2 of the Convention, read alone or together with Article 14 of the Convention.
The applicants also lodged a substantive application with the court in which they relied on Articles 2 (right to life), 6 (right to a fair trial), 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 34 (right of individual petition).
The court decided not to issue the interim measure sought. It also decided to declare the applicants’ complaint inadmissible. Having regard to all the material in its possession and in so far as it had jurisdiction to examine the allegations made, the court considered that the conditions of admissibility provided for in Articles 34 and 35 of the Convention were not fulfilled.
Therefore, the court would not interfere with the decisions of the national courts to allow the withdrawal of life-sustaining treatment from [the child] to proceed.
04 August 2022
Parents indicate they will make an application to the High Court for permission to move Archie to a hospice and the matter returns to the Family Division of the High Court.
05 August 2022
Refusing the application to move Archie to a hospice, Theis J said that Dr F’s evidence was clear and detailed about the risks of transfer. She was someone who knew Archie well and had a detailed understanding of his medical position. Her careful analysis, which the court accepted, in her most recent statement and her oral evidence of the risks and where they came from in the four areas she identified was careful and balanced, underpinned by clear reasoning based on her experience and a detailed understanding of Archie’s medical condition.
The doctor distinguished this transfer from other movements in the hospital and had undertaken detailed enquiries of what a transfer to the hospice would involve to help inform her view. In her statement she described the risks in transfer for Archie as “major and unpredictable”. It was also necessary to factor in the further detail that would be caused.
Her evidence needed to be viewed in the context of her update about Archie’s medical position which was becoming more fragile. The court accepted her evidence about Archie’s increased reliance on the vasopressin infusion and the consequences for him and a recent incident with disturbance of the line to his neck, the loss of blood pressure and the need to relocate that line. Those were but two examples of Archie’s difficult and increasingly compromised position.
Archie’s best interests must remain at the core of any conclusions reached by the court. When considering the wishes of the family, why those wishes were held, the facilities at the hospice, what archie was likely to have wanted as outlined by Hayden J, the risks involved in a transfer as outlined by Dr F and the increasing fragility of his medical condition.
Her Ladyship was satisfied that when looking at the balancing exercise again his best interests remained as set out on 15 July 2022 that he should remain at the hospital when treatment was withdrawn.
During the afternoon of 05 August the Court of Appeal refused permission to appeal for the reasons given by Theis J. A further attempt to appeal to the European Court of Human Rights under Articles 6 and 8 during the evening was refused.
06 August 2022
During the course of the morning Archie’s life support was switched off and he died around 12.15 noon. May Archie Batersbee now rest in eternal peace.
Cases Cited in Court of Appeal Judgment:
The legal context
Aintree University Hospitals NHS Trust v James [2013] UKSC 67
In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911
Airedale NHS Trust v Bland [1993] AC 789
ECHR, CRC and CRPD
Lambert v France (2016) 62 EHRR 2
Haas v Switzerland (2011) 53 EHRR 33
Gard v UK (Application No. 39793/17)
Pretty v UK [2002] ECHR 2346/02
Effects of Treatment
Parfitt v (1) Guy’s and St Thomas’ Children’s NHS FT (2) Knight [2021] EWCA Civ 362
Presumption in favour of prolonging life
A NHS Trust v Y [2018] UKSC 46
Adequacy of Reasons
Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407
[1] Barts Health NHS Trust v Dance & Ors [2022] EWHC 1435 (Fam)
[2] Barts Health NHS Trust v Dance & Ors (Re Archie Battersbee) [2022] EWCA Civ 935
[3] Barts Health NHS Trust v Dance & Ors (Re Archie Battersbee) [2022] EWFC 80
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