Children and Families

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?

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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

Mother of Archie Battersbee, Hollie Dance, outside the high court in London, England.
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

New Publication: ‘Overriding Adolescent Refusals of Treatment’

Written by Anthony Skelton, Lisa Forsberg, and Isra Black

Consider the following two cases:

Cynthia’s blood transfusion. Cynthia is 16 years of age. She is hit by a car on her way to school. She is rushed to hospital. She sustains serious, life-threatening injuries and loses a lot of blood. Her physicians conclude that she needs a blood transfusion in order to survive. Physicians ask for her consent to this course of treatment. Cynthia is intelligent and thoughtful. She considers, understands and appreciates her medical options. She is deemed to possess the capacity to decide on her medical treatment. She consents to the blood transfusion.

Nathan’s blood transfusion. Nathan is 16 years of age. He has Crohn’s disease. He is admitted to hospital with lower gastrointestinal bleeding. According to the physicians in charge of his care, the bleeding poses a significant threat to his health and to his life. His physicians conclude that a blood transfusion is his best medical option. Nathan is intelligent and thoughtful. He considers, understands and appreciates his medical options. He is deemed to possess the capacity to decide on his medical treatment. He refuses the blood transfusion.

Under English Law, Cynthia’s consent has the power to permit the blood transfusion offered by her physicians. Her consent is considered to be normatively (and legally) determinative. However, Nathan’s refusal is not normatively (or legally) determinative. Nathan’s refusal can be overridden by consent to the blood transfusion of either a parent or court. These parties share (with Nathan) the power to consent to his treatment and thereby make it lawful for his physicians to provide it.

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We Should Vaccinate Children in High-income Countries Against COVID-19, Too

Written by Lisa Forsberg, Anthony Skelton, Isra Black

In early September, children in England, Wales and Northern Ireland are set to return to school. (Scottish schoolchildren have already returned.) Most will not be vaccinated, and there will be few, if any, measures in place protecting them from COVID-19 infection. The Joint Committee on Vaccination and Immunisation (JCVI) have belatedly changed their minds about vaccinating 16- and 17-year olds against COVID-19, but they still oppose recommending vaccination for 12-15 year olds. This is despite considerable criticism from public health experts (here, here, and here), and despite the UK’s Medicines and Healthcare products Regulatory Agency (MHRA) declaring COVID-19 vaccines safe and effective for children aged 12 and up—Pfizer/BioNTech in the beginning of June, and Moderna the other week.

In Sweden, children returned to school in the middle of August. As in the UK, children under 16 will be unvaccinated, and there will be few or no protective measures, such as improved ventilation, systematic testing, isolation of confirmed cases, and masking. Like the JCVI in the UK, Sweden’s Folkhälsomyndigheten opposes vaccination against COVID-19 for the under-16s, despite Sweden’s medical regulatory authority, Läkemedelsverket, having approved the Pfizer and Moderna vaccines for children from the age of 12. The European Medicines Agency approved Pfizer and Moderna in May and July respectively, declaring that any risks of vaccine side-effects are outweighed by the benefits for this age group.

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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

Mandating COVID-19 Vaccination for Children

Written by Lisa Forsberg and Anthony Skelton

In many countries vaccine rollouts are now well underway. Vaccine programmes in Israel, the United Kingdom, Chile, United Arab Emirates, Bahrain and the United States have been particularly successful. Mass vaccination is vital to ending the pandemic. However, at present, vaccines are typically not approved for children under the age of 16. Full protection from COVID-19 at a population level will not be achieved until most children and adolescents are inoculated against the deadly disease. A number of pharmaceutical companies have started or will soon start clinical trials to test the safety and efficacy of COVID-19 vaccinations in children and adolescents. Initial results of clinical trials seem promising (see also here and here).

There are strong reasons to inoculate children. COVID-19 may harm or kill them. It disproportionately affects already disadvantaged populations. For example, a CDC study published in August 2020 found the hospitalisation rate to be five times higher for Black children and eight times higher for Latino children than it is for white children. In addition, inoculating children is necessary for establishing herd immunity and (perhaps more importantly), as Jeremy Samuel Faust and Angela L. Rasmussen explained in the New York Times, preventing the virus from spreading and mutating ‘into more dangerous variants, including ones that could harm both children and adults’. Continue reading

Press Release: New Tavistock Legal Ruling on Puberty Blockers

The legal decision this morning, in the Family division of the High Court, provides important clarification. It is likely to be a relief to young people with gender dysphoria and their families.
In December, the High Court found that young people under 16 with gender dysphoria were highly unlikely to be able to understand the complexities and uncertainties of puberty blocking treatment. That meant that they could not consent (on their own) to treatment. The court recommended that doctors and families go to court to seek permission to start treatment.
That decision has caused great uncertainty for a large number of vulnerable teenagers with gender dysphoria who had previously been started on treatment or were awaiting treatment. It wasn’t clear whether they would be able to receive puberty blockers.
The decision today clarifies that parents of young people with gender dysphoria can consent to puberty blocking treatment on behalf of the young person. Where the parents, doctors and young person are all in agreement about this, there is no need to go to court.
 
This court decision reinforces a long established ethical approach to medical treatment in children and young people. The views of the child or young person should be sought. If the young person is sufficiently mature they may be able to consent on their own to the treatment in some cases. But where that isn’t the case, parents are able to consent to treatment that would be in the young person’s best interests (ie would be best overall for them). That ethical approach has long been adopted, in this country and others, for young people needing surgery or chemotherapy or other medical treatment. It applies to extremely important life and death decisions (for example about stopping life support). It also applies to puberty blockers.
Debate about the role of puberty blockers in young people and children is likely to continue. But this decision means that where doctors believe that it would be best for the young person to have this treatment, the young person wants the treatment and parents consent, the treatment can legally be provided.”
Professor Dominic Wilkinson
Professor of Medical Ethics, University of Oxford
Consultant Neonatologist

No conflicts of interest

Ethics Doesn’t Rule, OK?

By Charles Foster

Ethics and law are different. Or they should be.

Law has the power to coerce. That is a frightening power. There should be as little law as possible. But there should be more ethics than there is.

The boundary between the two domains is not absolute. Clinicians are probably more frightened of being struck off by the General Medical Council (GMC) (after an adjudication on their ethics by the Medical Practitioners’ Tribunal Service) than they are about an order by a civil court that compels their insurers to pay damages for clinical negligence. The exercise of the GMC’s statutory powers can be draconian: the existence of those powers, and the associated sanctions, is certainly coercive.

But although the boundary is sometimes blurred, it is still real. It is the job of the law to keep it from becoming dangerously permeable. In a recent case the law was caught napping. Continue reading

Current Lockdown Is Ageist (Against The Young)

Written by Alberto Giubilini

Oxford Uehiro Centre for Practical Ethics and Wellcome Centre for Ethics and Humanities

University of Oxford

 

Former UK supreme court justice and historian Lord Jonathan Sumption recently made the following claim:

“I don’t accept that all lives are of equal value. My children’s and my grandchildren’s life is worth much more than mine because they’ve got a lot more of it ahead. The whole concept of quality life years ahead is absolutely fundamental if one’s going to look at the value of these things.”

This wasn’t very well received, to say the least. Experts were quickly recruited by the press to rebut his claims. Headlines were made to convey people’s outrage at the idea that we can put a value on human life, and what is worse, different values on different human lives (which, by the way, is precisely what the NHS regularly does whenever it decides whom to put on a ventilator when there are not enough ventilators for everyone, or when it decides not provide life-saving treatments that cost more than £ 30k per quality-adjusted-life-year). Continue reading

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