Archie Battersbee died after the court ordered the withdrawal of life support. When can the court take over parents’ duty to make decisions about their child’s medical treatment?

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Archie Battersbee sadly died on Saturday 6 August after his life support was switched off, as he was deemed brain stem dead with no chance of recovery. He was found unconscious in his family home in April after attempting a dangerous online challenge.

In April 2022, the NHS trust commenced proceedings in the High Court for authorisation to conduct a brain stem test, as his parents had refused consent. The Court, however, authorised the brain stem test to be carried out. Archie did not respond to the peripheral nerve stimulation tests, which were a precursor for the brain stem test.  

An MRI scan was then authorised by the court, despite his parents continued disapproval. The MRI scan showed that Archie had died from brain stem death and the Court ultimately allowed the withdrawal of life support treatment. The Judge commented that to continue treatment would be ‘futile’ (pointless).

The Battersbee family exhausted all legal avenues, which included an appeal to the Court of Appeal and the Supreme Court, to try and prolong his life-support treatment, but their attempts were unsuccessful. They applied to the United Nations Commission for The Rights of Disabled People (UNCRDP) and the European Court of Human Rights (ECHR), which also rendered no success. The ECHR had refused to interfere with the UK Court’s ruling and any request by the UNCRDP to delay the withdrawal of treatment was considered non-binding.

In the Judgment handed down by Mrs Justice Arbuthnot, she said:

“Although I take into account the parents and the medical professionals’ views, it is Archie’s best interests which are my paramount consideration. I approach it with the point of view I assume he would have. As part of that, I bear in mind his burgeoning religious views which were of significance to him. Although he did not go to church, he wears a cross and a St. Christopher’s ring. In time his religious views may have developed. I put in the balance on the one hand that Archie had told his mother he would not want to leave her, and he had said that he would want to remain on life support rather than have that withdrawn.

 

Archie was fit and he wanted a future in sport. He was on the national junior gymnastics team and had started MMA. I see in Archie a drive to preserve his life because his instinct to survive would have been strong. He loved being at the centre of and the youngest in his loving family. On the other hand, I must ask myself what Archie’s view might be of the treatment as it is being administered to him today. He is 12 and although he told his mother he would prefer to be on a life support machine rather than dead, that was not an opinion he had come to base on the reality of the medical intervention he receives now and the likely outcome.”

 

When can the court consent to my child’s medical treatment?

By law, a healthcare professional is required to obtain the consent of 1 person with parental responsibility to carry out medical treatment. If they do not consent, permission can be sought from the court. As Archie’s parent’s both refused consent, The Royal Hospital of London applied to the Court for permission under S.8 of the Children Act 1989 (‘the Act’) to carry out brain stem testing, and to withdraw the life-support treatment.  The Act provides that the child’s welfare shall be the court’s paramount consideration.  The parents wanted Archie to remain on life support until he died ‘naturally’.

There are a number of principles from case law (judge-made law), that the court has to consider in the circumstances:

  1. The paramount consideration is the best interests of the child. The role of the court when exercising its jurisdiction is to take over the parent’s duty to give or withhold consent in the best interests of the child. It is the role and duty of the court to do so and to exercise its own independent and objective judgment.
  2. The starting point is to consider the matter from the assumed point of view of the patient. The court must ask itself what the patient’s attitude (Archie, in this case) to treatment is or would be likely to be.
  3. The question for the court is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken. The term ‘best interests are used in its widest sense, to include every kind of consideration capable of bearing on the decision, this will include, but is not limited to, medical, emotional, sensory, and instinctive considerations. The test is not a mathematical one, the court must do the best it can to balance all of the conflicting considerations in a particular case with a view to determining where the final balance lies.
  4. In reaching its decision the court is not bound to follow the clinical assessment of the doctors but must form its own view as to the child’s best interests.
  5. There is a strong presumption in favour of taking all steps to preserve life because the individual human instinct to survive is strong and must be presumed to be strong in the patient. The presumption however is not irrebuttable. It may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering and other burdens are sufficiently great.
  6. Within this context, the court must consider the nature of the medical treatment in question, what it involves and its prospects of success, including the likely outcome for the patient of that treatment.
  7. There will be cases where it is not in the best interests of the child to subject him or her to treatment that will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child’s and mankind’s desire to survive.
  8. Each case is fact specific and will turn entirely on the facts of the particular case. The views and opinions of both the doctors and the parents must be considered. The views of the parents may have particular value in circumstances where they know well their own child. However, the court must also be mindful that the views of the parents may, understandably, be coloured by emotion or sentiment. There is no requirement for the court to evaluate the reasonableness of the parents’ case before it embarks on deciding what is in the child’s best interests.
  9. The views of the child must be considered and be given appropriate weight in light of the child’s age and understanding.

 

Consent

Usually, young people aged 16 or over are considered to have the mental capacity to make their decisions about their medical treatment, so long as they:

  • understand the information given to them in relation to a decision
  • remember the information long enough to make a decision
  • use or weigh up the information available
  • communicate their decision in any way which can be recognised

If, however, a young person aged 16 or over is not able to do the above, he/she is considered to be lacking capacity. In which case, others such as parents, legally appointed guardians, local authorities, or agencies, designated to provide care for the child would need to consent to their medical treatment. The same applies to young people under the age of 16 unless they are believed to have enough intelligence, competence, and understanding and can fully appreciate what’s involved in their treatment. In law, this is known as Gillick Competence and is determined through a Gillick assessment. If they pass the assessment, they can consent to their medical treatment without needing parental permission.

This article is intended for guidance only and ‘must not be relied upon for specific advice.


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