June 29, 2022

expert comment on the news that the Court of Appeal has sent the case of Archie Battersbee back to the High Court

A comment from Professor Dominic Wilkinson on today’s decision by the Court of Appeal.

Prof Dominic Wilkinson, Professor of Medical Ethics and Consultant Neonatologist, University of Oxford, said:

“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.

“There are two separate questions. First, is Archie legally dead. Second, should life support machines continue?

“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.

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 in early July.”

Declared interests

Prof Dominic Wilkinson: “No conflicts of interest.”