Press release: Battersbee appeal at European Court declined
Press release: Battersbee final* appeal rejected
by Dominic Wilkinson
In the latest legal hearing, in a long running dispute about treatment for brain-injured 12 year old Archie Battersbee, the Court of Appeal yesterday rejected his family’s request to delay stopping treatment until a UN committee had reviewed his case.
Why was the appeal rejected?
Archie’s parents had previously mounted a series of legal appeals against a decision by Justice Hayden in mid-July that it would be best for Archie to stop the life support machines that are keeping him alive. That included an appeal to the highest court in the UK, the Supreme Court.
Yesterday, the Court of Appeal concluded that it would be wrong to further delay the decision. The UN committee had no legal status in UK law, and therefore would not change the decision about what would be best for Archie.
What is the underlying issue?
Archie sustained profound brain damage from lack of oxygen in early April, when he was found at home with a ligature around his neck. All medical experts who have examined him have agreed that he has absolutely devastating brain damage, from which there is no possibility of recovery. Indeed, the doctors treating him initially believed that the brain damage was so severe that he was brain dead. However, the Court of Appeal in another hearing back in June found that Archie could not be declared brain dead (because the usual testing for brain death was not possible). But even if he is not brain dead, there remains a question about whether it is right to keep him alive.
How common are these disputes?
Tragically, for a small number of children who become critically ill each year, medicine reaches its limits. For children like Archie, doctors cannot make them better, and advanced medical techniques and technologies may end up doing more harm than good. Sometimes, all medicine can do is to prolong the inevitable.
It is entirely understandable that loving parents would struggle to understand or accept this news. Many parents might not initially accept the advice of doctors that it may be best to let their child go.
But in the vast majority of cases, with patience, compassion, careful explanation and empathic support, parents and doctors are able to come together to agree on what would be best for a seriously ill child.
In a small number of cases, medical teams may need external help to reach an agreement. For example, they may draw on a clinical ethics committee, or independent mediation, or may seek second opinions from specialists in other hospitals. In a tiny proportion of cases, if parents and doctors cannot agree what would be best, for a child who is stuck on life support in an intensive care unit, the right thing to do is to ask the court to help. The court in the UK has an important role in resolving disagreements about treatment. The court does not side with either doctors or parents. It focuses exclusively on what would be best for the child (the child’s best interests).
Why all the legal appeals?
The UK legal system allows decisions to be appealed to higher courts. In these cases about treatment for children, it is very rare for higher courts to reach a different decision than the initial judges. In cases, like the Charlie Gard case, or Archie’s case, parents may seek appeals repeatedly in the hope that the court decision will be overturned, or perhaps as a way of buying extra time.
In Archie’s case, it appears that his parents may have run out of options, though it is theoretically possible that they will attempt to appeal again to the Supreme Court, or appeal to the European Court of Human Rights. Even if those appeals do go ahead and delay things further, they are extremely unlikely to change the ultimate decision.
Sadly, the underlying situation for Archie remains unchanged. The best, and only course of action that can help him now, is to let him go.
Press Release: Court of Appeal decision in Dance & Battersbee (respondents/appellants) v Barts Health NHS Trust
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?
Should Parents be Able to Decline Consent for Brain Death Testing in a Child?
by Dominic Wilkinson
In the recently reported case of Archie Battersbee, a 12 year old boy with severe brain damage from lack of oxygen, a judge declared that he had died on 31st May. This was almost eight weeks after his tragic accident, and five weeks after doctors at his hospital first applied to the court for permission to test him. His parents have appealed the ruling, and the appeal hearing is likely to be heard in the Court of Appeal next week.
If the judgement is correct that Archie is, sadly, legally dead, it is extremely likely that this has been the case for more than a month and potentially now more than two months. One of his doctors testified that in the view of the specialists looking after him it was likely that Archie’s brain stem had died between 8th and 26th April. While it would not be unusual for doctors and families to take a few days to discuss and then proceed with formal testing, this length of delay is extremely unusual in the UK. The delay in making a definite determination in Archie’s case is because his parents declined consent for brain death testing.
But that might lead us to ask: should parents be asked for consent to testing in these cases? Continue reading
Archie Battersbee: How the Court Reached its Conclusion
PA Images / Alamy Stock Photo
Dominic Wilkinson, University of Oxford
London’s high court has heard the tragic case of 12-year-old Archie Battersbee, who suffered severe brain damage after an accident at his home in Southend, Essex, in early April.
On Monday, Mrs Justice Arbuthnot concluded that Archie was brain dead and that treatment should cease. His parents disagree and are planning an appeal.
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 concluded that treatment should stop. However, one difference in Archie’s case is that the standard tests for brain death were not possible. The judge relied in part on a test (an MRI brain scan) that is not usually used. Continue reading
NHS and Care Home Mandates Should Take Account of Natural Immunity to COVID
by Dominic Wilkinson, Jonathan Pugh, Julian Savulescu
Yesterday, the health secretary, Sajid Javid announced that COVID vaccines would become mandatory for frontline NHS staff from April.
Meanwhile, from tomorrow care home workers in the UK will not be able to work if they don’t have a vaccine certificate and are not medically exempt. This vaccine mandate has been controversial, with providers raising concerns that as many 70’000 employees could leave the sector putting beds and care at risk. However, its advocates have argued that it is a proportionate public health measure due to the need to protect vulnerable care home residents.
Proportionality is one key ethical criterion in public health ethics; public health interventions are only permissible if their benefits outweigh their costs. However, another key ethical criterion is necessity; public health interventions are only permissible if they are necessary for achieving a certain benefit.
One striking feature of the current UK care home and NHS staff mandate is that it does not allow an exemption for those who have proof of natural immunity.
COVID: Media Must Rise Above Pitting Scientists Against Each other – Dealing With the Pandemic Requires Nuance
Trish Greenhalgh, University of Oxford and Dominic Wilkinson, University of Oxford
At the start of the pandemic, there was a striking sense of shared resolve and solidarity. Facing a public health crisis greater than any in living memory, people were largely united in their support of difficult measures to protect the vulnerable, safeguard the health system and sustain key workers.
There were, of course, differences of opinion. For example, some disagreed about the severity of the threat posed by COVID, about the wisdom of different national approaches to lockdown, about the timing of restrictions, and the effectiveness face masks.
More recently, there has also been disagreement on how vaccines should be distributed, whether vaccine passports are a good idea, and whether vaccination should be mandatory for certain occupations)
Throughout the pandemic, scientists attempting to explain their findings have had to deal with unprecedented levels of dissent, anger and abuse from the lay public and occasionally from other scientists.
Since the government lifted COVID restrictions on July 19, views on how best to handle the pandemic have become more polarised than ever, broadly splitting into two camps: the “open up” camp and the “not yet” camp. Continue reading
COVID: Why We Should Stop Testing in Schools
Dominic Wilkinson, University of Oxford; Jonathan Pugh, University of Oxford, and Julian Savulescu, University of Oxford
Education Secretary Gavin Williamson has announced the end of school “bubbles” in England from July 19, following the news that 375,000 children did not attend school for COVID-related reasons in June.
Under the current system, if a schoolchild becomes infected with the coronavirus, pupils who have been in close contact with them have to self-isolate for ten days. In some cases, whole year groups may have to self-isolate.
Such mass self-isolation is hugely disruptive. Yet despite the clamour to switch to other protective measures, such as rapid testing of pupils who have been in close contact with an infected pupil, the public service union Unison has supported self-isolation as “one of the proven ways to keep cases under control”. Continue reading
Urgency, Delayed Decision-making and Ethics in the Court of Protection
By Dominic Wilkinson, 24th June 2021
cross post from the Open Justice Court of Protection Project
On 11th June 2021, I was a public observer (via MS Teams) of a case in the Court of Protection: Case No. 1375980T Re GU (also blogged about by Jenny Kitzinger here).
The case was (though I did not know it beforehand) related closely to issues that I have written about over a number of years (for example here, here, here ). It was an urgent hearing before Mr Justice Hayden concerning clinically-assisted nutrition and hydration (CANH) for a 70 year old man, GU, who has been in a prolonged disorder of consciousness for seven years.
I have read the judgments from many similar cases in the UK, from the first ever case concerning a feeding tube for a vegetative patient heard in (what is now) the Supreme Court in 1992 (the case of Tony Bland, injured in the Hillsborough football stadium disaster), through to the most recent Supreme Court case of Re. Y, at which the court ruled that it is not mandatory to bring cases concerning CANH-withdrawal to court unless there is disagreement about best interests, or the decision is finely balanced (report here). I’m also familiar with the judgments in other jurisdictions (e.g. Schiavo in the USA, Lambert in France) and have been involved in deliberation in clinical ethics committees about cases with similar features.
Yet, this was my first time hearing open deliberations in the Court of Protection. It was a fascinating and thought-provoking experience. Continue reading
Care home staff vaccination – press release
Two (contrasting) perspectives on the news this morning about planned mandatory vaccination of care home workers.
Professor Julian Savulescu
“The proposal to make vaccination mandatory for care home workers is muddle-headed. Vaccination should be mandatory for the residents, not the workers. It is the residents who stand to gain most from being vaccinated. Young care workers have little to gain personally from vaccination and there are now lethal risks, as well as uncertain long term consequences of novel vaccines. They have already risked their own lives during the pandemic. Some will be immune from past infection. Those remaining should be offered incentives, including financial incentives, to be vaccinated, not coerced. Vaccines like hepatitis and influenza may be mandatory, but they have been around for years and have established safety profiles.
“It’s too soon to be talking about mandates. We’re still researching rare but potentially serious side-effects that have been thrown up by national monitoring, for example a possible link between Pfizer and myocarditis. We don’t have the full picture on how well they prevent transmission. Public Health England data about how transmission is only available for the first dose and it is currently at up to 50%. Meanwhile the level of protection afforded to vaccinated individuals themselves is holding up very well in terms of hospitalisation and death even against the new variants. With the level of confidence we have encouragement to vaccinate is warranted, and incentives are warranted. Mandates should only be made on the basis of bulletproof safety and efficacy data, including transmission data.”
Prof Dominic Wilkinson & Dr Jonathan Pugh
“In the earlier phase of the pandemic, some of the most medically vulnerable members of our community, patients in care homes and acutely ill patients in hospitals, ended up catching coronavirus from those caring for them. Some patients and care home residents died from infections that they caught from their caregivers.”
“That is a tragic and distressing situation that we must do everything possible to avoid repeating.
First, we should ensure that all those who are high risk have access to vaccination. There are still approximately 10% of older adult care home residents who have not had a 2nd dose of the vaccine.
Second, those who work in the frontline with vulnerable high risk patients have an ethical obligation to take all reasonable measures to prevent spread of the vaccine to those they are caring for. They must follow guidance about the use of measures like hand washing and PPE. They should take part in lateral flow testing schemes. And they should be vaccinated.
In England, as of 10th June, 17% of adult care home workers have not had the COVID-19 vaccine.
There is a strong ethical case that care home workers (and NHS staff) who have not had the COVID vaccine should be redeployed to areas other than frontline care.
It would be ethical to make COVID vaccination (in the absence of a medical exemption) a condition of employment in the same way that hepatitis B vaccination is currently for some health professionals.If vaccines are made mandatory for health care and care home workers, they should be able to choose from available vaccines. Every effort possible should be made to address any concerns that they have about the vaccines.”
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