Court Of Protection Ruling On End Of Life Support Treatment For Boy Aged 12

A particularly devastating case was reported in the national media recently, and it concerns Archie Battersbee, a 12-year-old boy from Essex, who was found unconscious at home on 7 April 2022.

It is not clear what happened to him, and he has been on a life support machine ever since he was hospitalised. The hospital considered that there is no prospect of recovery, and proposed taking him off life support but Archie’s parents disagreed. Unable to unilaterally make the decision, the hospital applied to the Court for an order.

The application has been heard by the Court, and the Judge – Mrs Justice Arbuthnot – even visited Archie in hospital recently. Mrs Justice Arbuthnot, having been presented with MRI scans and medical opinions, concluded that Archie had died at noon on 31 May 2022, and that brain stem function had irreversibly ceased. She ruled that the hospital could cease to ventilate Archie.

Archie’s parents have said that they will be appealing the decision. His mother, supported by the Christian Legal Centre, believes there is still hope and spoke about Archie appearing to recognise her when she was with him in hospital. It is likely that the case will be heard again very soon given the urgency. The family feels that the hospital and now the Court have not taken their wishes and feelings into account.

Comment

Although the circumstances of Archie’s injury are unknown, it goes without saying that the story is desperately sad. Archie is not in a position to speak for himself, and the hospital is unable to do what it believes is best if Archie’s parents do not agree. However, the Court of Protection does have the power to intervene in such cases. If the family and hospital agree, life support can end as was established by the Court of Protection in An NHS Trust v T [2018] UKSC.

The Court has a duty to make a decision that is in Archie’s best interests. The concept of best interests is not so much a litmus test as a list of criteria that the Court must consider when making a decision on behalf of a person without the capacity to do so and it is set out in section 4 of the Mental Capacity Act 2005. Those criteria are available here.

Archie’s family rightly argues that their wishes and views should be closely considered by the Court, and the importance of this cannot be understated as they are Archie’s parents, and caregivers, and will know him better than anybody. In addition to this, the Court has a duty to avoid making any decisions in relation to life-sustaining treatment that is based on a motivation to bring about a person’s death. This is quite often a factor that applies more to elderly patients in which medical practitioners and/or close relatives might want to end that person’s suffering. Under the Human Rights Act 1998, every individual has a right to life that should be upheld as far as possible.  

That said, the Mental Capacity Act requires the Court to consider the views of “anyone caring for a protected party, or concerned for their welfare” and this is not confined to Archie’s parents. The medical practitioners who have been treating him are caring for Archie and pursuant to the Hippocratic oath, doctors have a duty to help the unwell to the best of their ability and judgment. That judgment is of a specialist nature.

In this case, it appears that despite the parents’ wishes, the medical evidence was fairly compelling. The Judge appears to have agreed with the medics’ conclusions that Archie’s brain stem has failed, and will not recover, and in the absence of any contrary medical opinion, it is arguable that it is not in Archie’s best interests to be kept alive by ventilator when he will have no quality of life.

Doctors usually advise stopping life support when there is no hope of recovery. Sometimes this is to minimise a patient’s suffering, and it can also partly be due to concerns that a lack of available ventilators will result in another patient being denied access to life-sustaining treatment. That said, there are sometimes cases where medical opinion can differ and it appears as though to have any chance of succeeding on appeal, Archie’s family will need to demonstrate that there is a contrasting medical opinion.