by Dominic Wilkinson
Archie is legally alive, and the legal decision about whether it is in his best interests to keep him alive now needs to be revisited in the High Court.
Today, the Court of Appeal made a decision in the case of Archie Battersbee to send the case back to the High Court to examine what should happen next in his medical treatment.
Two questions
There are two separate questions. First, is Archie legally dead. Second, should life support machines continue?
Two weeks ago, on 13th June, a judge in the High Court, Justice Arbuthnot, found that Archie was brain dead. She therefore concluded that the best thing for him was to stop life support machines.
Disagreement about brain death
There have been other cases where parents or family members have not accepted a medical diagnosis of brain death. In the UK, courts have always supported that medical diagnosis, and concluded that treatment should stop. However, one difference in Archie’s case is that the standard tests for brain death were not possible.
In Archie’s case, testing was complicated because he had evidence of damage both to his spinal cord and his brain. This meant that normal nerve tests were not possible. Doctors used several extra scans. These showed that sadly there was no blood flowing to Archie’s brain, that his brain had no electric activity, and that there was permanent damage to the brain stem (an area at the junction of the brain and the spinal cord that contains crucial nerve centres for controlling basic functions), including those that control breathing and awareness. Doctors felt that it was likely that Archie was brain dead and the judge in the High Court ultimately agreed.
What happened in the Court of Appeal
The legal appeal focused on the question of whether Archie was brain dead.
A central question was how certain doctors could be of this.
Today the Court of Appeal found that because the doctors who examined him could not be completely sure that Archie was brain dead, that Justice Arbuthnot’s finding on 13 June was incorrect. He is still legally alive.
This is consistent with existing practice in the UK. Diagnosing a patient with brain death is a very serious decision. There are strict rules that doctors follow in making this diagnosis. Doctors only make a diagnosis of brain death when they are certain beyond any doubt that the patient is indeed brain dead according to UK criteria.
What happens next?
Archie is legally alive. However, the question remains whether it is best to continue the machines that are keeping him alive, or to let him go. Doctors feel that he has such severe, permanent damage to his brain that it is not the right thing to do to continue life support. That is why they went to the court in the first place. His parents disagree.
Where there is disagreement about medical treatment for living children (or adults) with severe brain injury, there is a legal process for making decisions in the court based on their “best interests”.
In Archie’s case, Justice Arbuthnot in the High Court earlier in June had taken care to consider Archie’s wishes as well as his parents’ views and the evidence that they had obtained from other experts.
The high court judge listened to evidence from several medical experts testifying to the devastating nature of his brain damage. She concluded at the time that if he were alive, it would be in Archie’s best interests to stop the life support machines that are supporting him. Although he is no longer capable of feeling pain (or indeed anything), she found that his body was suffering physical harm from the treatments he was needing to receive, that “his prospects of recovery are nil”, and that the burdens outweighed the benefits of continued treatment.
However, the judges in the Court of Appeal today concluded that the question of Archie’s best interests had not had sufficient attention in the first hearing. Accordingly, they have referred the case back to the High Court to revisit this.
There now needs to be a new, urgent hearing to resolve this fraught and difficult question. Archie’s case will be heard by Justice Hayden on 11th July.
Previous blogs on this case:
Archie Battersbee: how the court reached its conclusion
Should Parents be able to decline brain death testing in a child?
Thank you for clearly setting out the reasoning and conclusions of the court of appeal, as the case report is not yet in the public domain (unlike the High Court decisions which were both made available on the day the judgements were announced). This is very helpful.
I agree with the analysis given here that the two key issues to consider in this case (from a medical, ethical and legal perspective) are first, whether Archie is certainly dead and second, whether if he is not certainly dead, providing life sustaining treatment, including ventilation, would be in his best interests.
In a comment on the initial two judgments by the High Court I was shocked by the judgment of the High Court that, in a disputed case where death had not been demonstrated by standard criteria, a judge could assess whether he is dead on “the balance of probabilities”.
https://www.bioethics.org.uk/news-events/news-from-the-centre/press-statement-on-archie-battersbee-very-likely-dead-is-not-dead-enough/
It is reassuring that this approach was overturned on appeal.
I also thought that the focus of the High Court judgement was on whether Archie was dead, and the best interest question was more than an afterthought. Furthermore, I thought that the beliefs and feelings of the family and of Archie (as far as they are known) were not given due weight. I am glad that the court of appeal judged that this needed to be the subject of a new judgement before a different judge.
A question that remains, is whether treatment which gives real but very limited benefit (ongoing unconscious life in accordance with express prior wishes but with no hope of recovery) may be withdrawn in order to be given to someone who could benefit more, without claiming that withdrawing ventilation is in Archie’s best interest. This is a question that I think judges, doctors and politicians avoid making but it may be relevant in this kind of case. I await the case with interest.
A rather full philosophical ramble of a response:
A tremendous time is spent focusing upon the physical life and wellbeing of the individual in these cases, with, much of the time, no open consideration for the spiritual life(1) of everybody involved. To some extent by implication that spiritual issue may become built into the processes, but without direct or open acknowledgement. It seems probable that lack of open consideration occurs where the issues are so private, delicate and emotionally confused that clear answers could not be elucidated, thrusting an incomprehensible paradox to the fore. Perhaps a special language may assist, a formula to communicate clearly; but that moves towards the realm of a specialism which would require specialist knowledge to correctly communicate, or reduce to only four words, and so provide no clear answer to that difficulty for any individual involved.
Where any social group has a particular difficulty with the correctness of an action that relies upon certain factual criteria, the removal, or alteration of which, would have widespread implications, across many spheres, and for that commonly structured worldview, a great deal of angst within that social group can accompany any change because of the complications caused. It should then be of no surprise when a fuller consensus becomes more necessary and is sought.
Could it not be said that the physical condition of those most unfortunate people in these life threatening circumstances is assisting everybody else involved with their own emotional turmoil about life itself?
Where some progress (in whichever direction) regarding the physical wellbeing of a person, or one life is saved, the general emotion moves from what is in a more negative spectrum into a positive one, yet until (or if) that happens the immediate relatives may be pitied (or possibly even denigrated – in its less serious sense) for holding onto the positive emotions throughout their time of stress as they are assisted into accepting a view based upon the best/latest scientific analysis as a means of ‘helping’ them look at things in the same way as those others.
The difficulties, tensions and concerns of/for the carer’s appears as a necessarily prime concern where complicated processes are required to maintain a physical life. And where strong limitations on resources are imposed – the lives of other people in difficult situations forcefully intrude upon already difficult emotional decisions, creating the potential for an atmosphere of despair. Yet, skills, patience and spiritual wellbeing(1) can become strengthened during that caring time; Until hope is extinguished by a science based world-view which itself is still under development and trapped within a frustration or despair caused by its own current level of capabilities.
Clearly the ethical considerations prior to that extinguishing of hope apparently contain what is here termed spiritual(1) elements. So what often causes that to be so weakened when hope becomes extinguished, and despair is given precedence? The physical good(s) provide/s no real answer. And as in the abortion debates, physical life becomes a strange driver when scientific advance cause the ethical judgment to impinge upon it. That judgement faculty focus most frequently appears to require a black and white, right and wrong outcome but in paradoxical situations can reveal an emotional base to worldviews in flux, creating space in those circumstances for a fuller reflection on the morality(or if preferred – ethics) of the life cycle and life itself by removing what could be termed Piranesi’s prisons of the mind, one image(carceri) of which was so entertainingly repeatedly depicted, with wider contextual meanings, in the popular JK Rowlings writing or films of the Hogwarts dormitory stairs(3). Illustrating that suspending or disabling judgement oddly enables less tension within that reflective space, revealing….
Philosophy may in some fields be becoming more scientific. But paradoxes continue to exist, additional ones sometimes come into being/or become (re)constructed and then require mental and emotional energy to more fully understand, rather than avoiding the paradoxical questions by placing a reliance upon those boundaries in the mind supported by time constrained justifications, which even so eventually allow any paradoxical difficulties to become visible. Some philosophies resolve the physical life question by moving the focus onto the mental/intellectual/mind/spiritual life(2), facilitating a clearer link with human morality/ethics and reducing the importance of the physical life (a paradox(or paradise) created?) whilst potentially improving the cohesion of, or communications within any commonly shared worldview for social groups. But inevitably those philosophies demand/require the formulation of boundaries, which eventually require surmounting, (unless stability is given the primary focus and then becomes fixed within a particular perspective), as knowledge grows. Do such boundaries illustrate a safety feature of the human condition, by temporarily constructing a zone of safety; or illustrate a necessary condition of the social life…
Writing this reminded me of an artwork seen a few years ago at the back of a shop in Ancient Carcassonne, sadly the artists name is not remembered. The artwork consisted of what could be described as either two unicorn horns/narwhale tusks joined at the wider ends creating one vertical work (I think in bronze) with two sharp ends, one at the bottom, the other at the top and a broader central portion. The title of the work is remembered as Ying and Yang – only three words rather than four. It raised a question of where people reading this would see themselves, or others positioned within the reference of that artwork? (Others includes items like ethics, morality, individuals, social groups.) And if any reader thought about and answered that in a restricted way; why only inside?
(1) I use that term in this response with the reservation that it not be interpreted in a religious sense, and because other words, which could fit, present additional meanings which could be argued against most forcefully in unintended ways from within other worldviews.
(2) In the religious/faith based sense.
(3) A depiction duplicated by the human condition, or a representationally repeated image could only be established by interpretation and analysis of the authors/and or film makers circumstances of life and knowledge at the time of creation by imposing upon their private condition, something which would be unnecessary except for those who require full and firm facts they can deem fit for their own firmly fixed worldviews.
Archie isn’t legally alive. He is dead (dead by neurologic criteria). Where is stated that doctors have not said he is dead?
With respect this is not the legal situation.
Some doctors have expressed the opinion that Archie is “probably dead” but no doctor has pronounced him dead. Being unable to conduct the apnoea test no doctor with responsibility for the patient was willing to pronounce the patient dead. “The witnesses called by the Trust in the last few days said they had never had to consider before whether a patient was brain stem dead without being able to administer and rely on the results of the Code of Practice tests”. In the absence of such a declaration it was the judge who took it upon herself to declare that “on the balance of probabilities” Archie could be declared dead. https://www.judiciary.uk/wp-content/uploads/2022/06/Archie-Batteresbee-judgment-2-1.pdf para 179.
The judges in the Appeal Court overturned this judgement and “strongly caution[ed] judges in future cases of this kind from being drawn into attempting to declare death on a basis outside the Code where none of the medical witnesses has themselves made a diagnosis of death.”
https://www.judiciary.uk/wp-content/uploads/2022/07/Dance-Battersbee-v-Barts-Health-NHS-Trust-and-Another.pdf para 37
In the second High Court decision it was stated that “The Judge who heard the application, Arbuthnot J, was persuaded by this analysis to make a finding of brain stem death by application of the civil standard of proof. The Court of Appeal concluded that such an approach was wrong in law. It strikes me that it is also wrong, clinically. The law and good medical practice will rarely, if ever, diverge. Ascertaining death requires the application of clear clinical guidelines. Where they are not met, brain stem death cannot be identified with the certainty that such a conclusion requires.”
https://www.judiciary.uk/wp-content/uploads/2022/07/Barts-Health-Trust-v-Battersbee-judgment-150722-3.pdf para 1-2
The legal case since the Appeal judgement has been on the basis that he has not been declared dead by a doctor and that the declaration by the original High Court judge was flawed and he is therefore assumed to be alive though with medical certainty that he will not recover. The belief of some doctors that he is probably brainstem death is not equivalent to a declaration of death. In law Archie remains alive until he is pronounced dead.
If the courts had accepted that he was dead then they would not be using the best interest test and treatment would have been withdrawn weeks ago.
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