Over the coming hours, in the Royal London Hospital in Whitechapel London, a clinical team is preparing to withdraw life sustaining treatment from 12 year old Archie Battersbee, following a protracted legal battle and intense media attention.
This is the story of the legal journey of Archie’s parents, court appointed guardian and treating NHS Trust, over the weeks preceding this decision. It is also the story of how courts in the UK and Australia reach some of the toughest decisions they are called upon to make, when asked to authorise the cessation of life sustaining treatment of children.
The facts
On 7 April 2022, Archie’s mother found him unconscious and unresponsive with a ligature around his neck. He was believed to have been participating in a popular TikTok challenge that had gone horribly wrong. Archie had suffered an out of hospital cardiac arrest and ultimately he was deprived of oxygen for about 40 minutes.
He was taken to Southend Hospital and then on 8 April 2022 he was transferred to the Paediatric Intensive Care Unit at Royal London Hospital in Whitechapel. A CT head and angiogram, MRI, MR angiogram and EEG investigations showed a catastrophic hypoxic ischaemic brain injury. He has remained there since and has not regained consciousness.
Archie was unanimously considered by treating clinicians to have no prospect of recovery and withdrawal of life support was recommended. A second opinion undertaken by Dr K, a Consultant in PICU, advised that a brain stem test be performed but also emphasised, “even if the tests did not confirm brain stem death, given the clinical situation, we would likely recommend stopping invasive mechanical support as being in Archie’s best interests given the severity of brain injury he has sadly suffered…”. The specialists at the Royal London and those that gave second opinions were of the view that Archie was “brain stem dead”. Clinicians suggested Archie undergo the nationally approved test for brain stem death but the family had reservations particularly about one of the steps of the test, the apnoea test, which would involve Archie being taken off the ventilator.
Applications
The first application by Barts Health NHS Trust (the Hospital Trust) sought an order that Archie undergo brain stem testing in the absence of his parents’ consent which had been refused. This order was granted by Justice Arbuthnot on 13 May 2022 on the basis that brain stem testing was considered to be in Archie’s best interests.
Following issues with administering the brain stem testing, Archie’s Guardian applied for orders that Archie undergo a further MRI scan as this procedure was also opposed by Archie’s parents. On 27 May 2022, Justice Arbuthnot ordered that the MRI scan should take place.
On 6 June 2022 the matter was listed for evidence to be heard. Counsel for Archie’s parents raised two preliminary matters, the first being their concern that the scans of Archie’s brain were not of Archie but of someone else. The second was the parents’ concern that the hospital was deliberately starving Archie. Both concerns were found to be unsustainable.
On 13 June the Hospital Trust applied for, firstly, a declaration that Archie was brain stem dead, and secondly, in the alternative, an order regarding whether it was lawful and in Archie’s best interests to continue to receive mechanical ventilation.
Justice Arbuthnot visited Archie at the Hospital before finding that Archie had died at noon on 31 May 2022, shortly after the MRI scans taken that day. Her Honour found that irreversible cessation of brain stem function had been conclusively established and gave permission to the medical professionals at the Royal London Hospital to cease the administration of mechanical life support and medication (including an order not for resus). The judge made no order as to Archie’s best interests, but said that had she not made the declaration of death, she would have found that it was not in Archie’s best interests for him to continue medical treatment.
Archie’s parents successfully appealed the declaration of brain stem death, with the Court of Appeal finding on 29 June that Justice Arbuthnot was wrong to declare brain stem death in the absence of conclusive brain stem testing. The Court of Appeal remitted the matter to Justice Hayden, of the Court of Protection and Family Division, to decide whether the continuation of life sustaining measures was in Archie’s best interests.
Justice Hayden’s decision on best interests
On 11 July 2022 the matter was heard before Justice Hayden, Vice President of the Court of Protection and a Judge of the Family Division.
The Hospital Trust, supported by Archie’s guardian, sought orders authorising life-sustaining treatment to be withdrawn at an arranged time at which family members might be present, supported by medical personnel. Archie's parents argued for the current life-sustaining treatment regime to be continued until such time as Archie’s body may give up and he would die, to use their words, “naturally” and, at a time “chosen by God”. Archie’s parents raised strong moral objections to the proposed act of removing Archie from the ventilator.
Justice Hayden was tasked with considering what was in Archie’s “best interests”. His Honour reviewed the medical evidence as a whole and analysed its significance in the context of the overall best interests analysis. In doing so, His Honour noted that every aspect of Archie’s bodily function was being maintained artificially through ventilatory support, chemical assistance and the physical care provided by nurses. As stated by Justice Hayden, “this is a remarkable medical achievement but the moral and ethical challenges it creates are obvious”.
Justice Hayden went on to acknowledge that determining what was in Archie’s best interests was not solely a medical issue. In a compassionate account of the evidence placed before the Court, the judgment detailed Archie’s life prior to the accident including his lively personality and the strong bond he shared with his mother, as well as his religious beliefs and conversations that he had with his brother about his wishes.
His Honour placed considerable weight on the importance of protecting Archie’s dignity in considering whether it was in his best interests to continue ventilation, as well as having regard to Archie’s needs and wishes.
On 15 July 2022 His Honour concluded that it was not in Archie’s best interests to continue ventilation, noting "the treatment is futile, it compromises Archie’s dignity, deprives him of his autonomy, and becomes wholly inimical to his welfare. It serves only to protract his death, whilst being unable to prolong his life".
Appeals by Archie’s parents
Archie’s parents applied to the Court of Appeal for permission to appeal the decision of Justice Hayden.
The Court of Appeal noted that in determining issues of this nature it is required to afford paramount consideration to the best interests, in the widest sense, of the individual child. The question of whether the judgment of Justice Hayden demonstrated that this was his approach was at the centre of the parents’ case on appeal.
On 25 July 2022, the three appeal judges dismissed the parents’ attempt to overturn the lower court’s ruling, stating:
“Whilst it is, most 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 no longer in the best interests of this moribund child, who is weeks away from a death which will otherwise occur from a gradual further deterioration and then failure of his organs followed by the failure of his heart.
Consent can only be given to medical treatment where it is in the patient’s best interests and the consequence of the judge’s assessment is that continued life-sustaining treatment for Archie will not be lawful, even for a period of days or weeks.”
A legal stay on the termination of treatment at the Royal London Hospital was extended to 1pm on Monday, 1 August 2022 to allow the Court of Appeal to consider a request from the UN Committee on the Rights of Persons with Disabilities.
In declining to order a further stay, the Court of Appeal on Monday stated "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." The UN convention which the request for postponement was based on was "not part of the law of the United Kingdom".
As a result, in the absence of any intervening orders from the Supreme Court, the removal of mechanical ventilation is expected to proceed in the hours ahead.
Discussion
Like the UK, Australian courts, when called upon to consider medical treatment of children, are guided by the question of the best interests of the child. This is a test which encompasses social, cultural and religious factors as well as medical evidence. While the courts take account of the views of the child’s parents, as in Archie’s case this is not determinative.
External factors, such as pressures on hospitals and lack of ICU beds, are not considered relevant. Australian courts tend to have regard to the invasiveness of the medical interventions required to sustain life when considering whether treatment is consistent with a patient’s dignity, privacy and autonomy. This is the case even where the medical evidence indicates that the patient has no awareness and would not be experiencing any pain.
