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Barts Health NHS Trust v Dance & Ors [2022] EWHC 1435 (Fam)

Arbuthnot J determines an application by Barts Health NHS Trust in respect of a 12 year old boy.

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Background

The case concerned Archie Battersbee, a boy aged 12. On 7 April 2022, the mother found Archie suspended by his neck from the bannisters at home following an accident when messing around with a dressing gown cord.  Archie was taken to Southend Hospital and later transferred to the Royal London Hospital. He had not regained consciousness.

On 26 April 2022, the Trust applied for a specific issue order (s.8 CA 1989) for Archie to undergo brain stem testing accordance with the Academy of Medical Royal Colleges' 2008 Code of Practice for the Diagnosis and Confirmation of Death to establish whether or not he was brain stem dead. The parents had refused consent.  The Trust further applied for a declaration that it was lawful to withdraw mechanical ventilation. This second application was not pursued at the interim stage. Following a hearing on 12-13 May 2022, the Court ordered that Archie be subject to brain stem testing using the approved test. On 16 May 2022, two independent intensivists attempted to administer the brain stem test. It was not possible to do so. 

Given the inability to carry out the brain stem test, the guardian applied for Archie to be subjected to a further MRI scan of his brain and spine. This was opposed by the parents who were concerned about the risks to Archie. After hearing evidence, the Court directed the further MRI, which was undertaken on 31 May 2022. 

Hearing

The final hearing commenced on 6 June 2022.  The Trust sought a declaration that Archie was brain stem dead and that he was dead on a particular date. This was particularly complex as it was impossible to administer the approved brain stem test for neurological death. If the Court was not able to make the finding sought, the Court was to consider  whether it was lawful and in Archie's best interests to continue to receive mechanical ventilation. 

Counsel for the parents raised two preliminary matters: (i) that the scans produced were not images of Archie but of someone else; and (ii) that the hospital was purposefully starving Archie.  The Court considered both matters. Neither complaint had any foundation but perhaps demonstrated the desperation of the parents and their lack of trust in clinicians. While this could be understood on a human level, the experienced doctors were worthy of trust. 

During the final hearing, the Court heard evidence from treating specialists, including the consultant paediatric neuroradiologist, consultant paediatric neuroradiologist and consultant paediatric intensivist.  The court heard from the family spokesperson (Archie's brother's partner) and Dr Shewmon, an expert instructed by the parents, who was highly experienced but had not seen Archie's scans.  The medical evidence and chronology is set out in detail within the judgment.

Discussion

On behalf of the parents, it was submitted that (i) the court had to apply the criminal standard and be sure beyond reasonable doubt that Archie was dead and (ii) if the court adopted a neurological definition of death, this would "extend the common law definition of death". On best interests, counsel for the parents stressed the principle of the sanctity of life and the strong legal presumption in favour of preserving life, relying upon Archie's Article 2 rights, Article 6 of the UN Convention of the Rights of the Child, and Article 10 of the UN Convention on the Rights of Persons with Disabilities.

Arbuthnot J sets out the relevant law. The Court was bound by Airedale NHS v Bland [1993] AC 789, which makes clear the legal criteria for death is brain stem death. This was confirmed in Re M (Declaration of Death of Child) [2020] EWCA Civ 164.  The test for death is settled. Arbuthnot J relied in particular on Manchester University NHS Foundation Trust v Midrar Namiq (Re M) [2020] EWCH 180 (Fam) (confirmed on appeal), in which the test for death by neurological criteria was examined and the Court found the baby had died by neurological criteria. Arbuthnot J noted that because of Archie's severe brain injury, the Court was not able to rely on the results of the Code of Practice brain stem death test and had to consider the evidence provided by the clinicians.

In respect of the standard of proof to be applied, Arbuthnot J understood the parents' feelings on a human level. However, the law is settled and clear. The Court was considering making a protective order and the civil standard of proof applies.  Arbuthnot J adopted the approach of Lieven J in Re M: the burden of proof is on the Trust; the standard of proof is the balance of probabilities but the Court should apply anxious scrutiny to the evidence; and no best interests analysis is appropriate.

In considering best interests, Arbuthnot J noted the principles set out by Baroness Hale in the case of Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67 in respect of an adult.  The most recent application in children's cases was in Manchester University NHS Foundation Trust v Fixsler & Ors [2021] EWHC 1426 (Fam) and Arbuthnot J sets out MacDonald J's summary of the application of the best interests' test. Pursuant to Yates and Gard v Great Ormond Street Hospital for Children NHS Foundation Trust [2017] EWCA Civ 410, she notes the sole principle is that the best interests of the child must prevail and that must apply even to cases where parents, for the best of motives, hold on to some alternative view.

Arbuthnot J considers in particular Baker LJ's decision in Parfitt v Guy's and Thomas' Children's NHS Foundation Trust [2021] EWCA Civ 362 considering best interests where the child had no capacity to feel pain. 

Decision

The lack of the brain stem test, caused by Archie's severe brain damage, did not prevent the Court from anxiously considering the clinical evidence and coming to a conclusion. On the balance of probabilities, Arbuthnot J found that Archie died at noon on 31 May 2022, shortly after the MRI scans that day: irreversible cessation of brain stem function had been conclusively established.  The Court gave permission to medical professionals to cease treatment, such as mechanical ventilation, and declared these steps lawful.

Out of deference to the parents, Arbuthnot J went on to consider the Archie's best interest. While Archie did not feel pain, the medical procedures keeping his body functioning were a burden and he was suffering physical harm from his condition and the extensive medical treatment. The burden of treatment and lack of prospect of recovery outweighed Archie's Christian beliefs and the benefits to him of continuing life on mechanical ventilation for a few more weeks or months.  Had Arbuthnot J not made the declaration of death, she would have found it was not in his best interests for treatment to continue.

Note: Arbuthot J subsequently granted permission to appeal. The appeal has yet to be determined.

Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII