Press Release: Court of Appeal decision in Dance & Battersbee (respondents/appellants) v Barts Health NHS Trust

What happened in the Court of Appeal
The legal appeal focused on the question of whether Archie was brain dead.
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. 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.
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. Should Parents be able to decline brain death testing in a child?
Archie Battersbee: how the court reached its conclusion
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.
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.
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.
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.
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.
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.
There are two separate questions. First, is Archie legally dead. Second, should life support machines continue?
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.
What happens next?
A central question was how certain doctors could be of this.
Disagreement about brain death
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.
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”.
Two questions Two weeks ago, on 13^th 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.
Previous blogs on this case:
by Dominic Wilkinson