Andrea Williams addresses 12 myths circulating about Archie Battersbee’s case.
Myth 1: Archie was brain dead, according to his doctors
Truth: No doctor ever diagnosed Archie as brain dead. The established test for diagnosing brain stem death could not be carried out.
Some doctors said Archie was “likely” to be brain dead based on MRI and CT scans, but the same doctors said in the same breath that he had a 1-5% chance of making some recovery.
Some other eminent doctors, such as Professor Alan Shewmon, the top expert in diagnosing death who gave evidence in Court, disagreed, and even questioned the whole concept of brain death.
Mrs Justice Arbuthnot found in June that Archie was brain-dead “on the balance of probabilities” (para 179), which is the standard of proof in civil litigation, but not the standard applied by the medical profession to diagnosing death. The Court of Appeal then said Mrs Justice Arbuthnot was wrong to do so and should have instead considered Archie’s best interests on the basis that he is alive.
Myth 2: By keeping Archie alive, NHS would be wasting resources needed for treating other children
Truth: The treating consultant who gave evidence in Court specifically assured the Court that considerations about resources had no influence whatsoever on the Hospital’s decisions.
When the family’s Counsel suggested to the same witness that the Hospital wanted to withdraw life support to save resources, Mr Justice Hayden intervened to declare the question entirely inappropriate and directed that it should not be answered, and the allegation was self-evidently baseless.
Myth 3: The Hospital only took the family to court as a last resort, after all attempts to reach a compromise failed
Truth: The Hospital always talked to the family in the language of ultimatums or fait accompli. A rushed course of action was set early on by the Hospital, and it became impossible to press pause. At all times, the Hospital refused the family’s repeated invitations to negotiate a compromise.
On 8 April, Archie was taken to Royal London Hospital.
On 11 April, doctors told Archie’s parents to bring all the family in, to say goodbye and to discuss organ donation.
On 14 April, the Hospital threatened to involve its legal team unless the parents agreed to remove life support. Since the family did not agree, the Hospital began preparing its application to Court.
Just before court proceedings, a doctor mentioned in passing that there was a possibility of a mediation, where “an external person, mediator, comes and sits down and we essentially have the same meeting, where we say this is where we are at, we are asking you to agree with us, and the mediator will see if we can get you to reach the point we are at.” He stressed that the mediation was not about trying to reach any compromise, it was simply about getting the family to agree with doctors.
The following evening (27 April), the family was served with the court proceedings, and required to attend the first hearing the following morning.
The Hospital had never referred the case to an Ethics Committee.
The Hospital did not even provide the family with medical records and scan results, despite repeated requests over three weeks, until the Court ordered it to do so.
During the Court proceedings, the family’s legal team repeatedly proposed to pause the proceedings, if only for a few days, to attempt a genuine mediation. The Hospital always refused.
In the end, the family no longer resisted withdrawal of life support, but asked for it to happen in a hospice away from the Hospital. Both the Hospital and the Courts devastatingly refused that.
Myth 4: The case ended up in courts because the family had unrealistic hopes that Archie would recover
Truth: The family continued to pray for a miracle, but at the same time, did not question the medical evidence and the pessimistic prognosis that Archie was likely to survive at most for a few weeks. The family had a strong ethical objection to the idea of a ‘planned death’, and to removing life support in the knowledge that this would cause an immediate death. Rather, the family wanted his death to happen in God’s time, whenever it might be, and in God’s way.
The Hospital, CAFCASS and the Courts disagreed with this, maintained that a ‘planned death’ was necessary to ensure Archie’s dignity, and treated the case as very urgent lest he died “in God’s time” before a ‘planned death’ could be arranged. See the second Court of Appeal judgment at paragraph 13 and the third Court of Appeal judgment at paragraphs 16-17 and 42.
Logically, the severity of Archie’s medical condition could not weigh in this debate one way or the other.
Myth 5: The courts put Archie at the centre of this case, and made a decision based on objective evidence of what Archie would have wanted for himself in his own best interests
Some time before his accident, Archie had told his family that if he ever was permanently unconscious on life support, he would want it to be maintained for as long as it takes, because he would not want to leave his Mum. The family told the Court about that, and the Court accepted that those were Archie’s wishes (the judgment of Hayden J at para 31).
However, the Court decided to override Archie’s own wishes because the Court concluded that a ‘planned death’ – as opposed to a natural death in God’s time – was in Archie’s best interests.
Myth 6: The only alternative was to force doctors to act unconscionably by violating Archie’s best interests
Doctors can always refuse to give treatment that is contrary to their conscience, and there is no need to take a family to court for that. However, in that scenario (discussed in the GMC Guidance on ‘Personal beliefs and medical practice’) they must also arrange for a different doctor, or a different team who do not have the same conscientious objection, to advise and treat the patient.
This is not what happened in Archie’s case, where the Hospital asked the Court to make a binding determination that it was not in Archie’s best interests to be kept alive, not only by this Hospital, but by any hospital anywhere in the world. Had the Court disagreed, the Hospital was happy to continue treating him.
Myth 7: Cases or this kind are very rare
Truth: High-profile cases such as Charlie Gard, Alfie Evans, Isaiah Haastrup, Tafida Raqeeb, Pippa Knight and now Archie Battersbee are only the tip of the iceberg. They only become so well known when there are no reporting restrictions that prevent families from talking to the media without risking being imprisoned for contempt of court. That only happens when the case has been so widely publicised from an early stage before it was brought to court that it is too late to impose reporting restrictions.
On average, the Family Division considers 5 to 6 cases of withdrawal of life-sustaining treatment from children every year. About half of them remain completely secret, with no published judgment in the end; some judgments are published in a heavily anonymised version; and only a small proportion makes it to the mainstream media.
In addition, there are numerous adult cases, which are considered in the Court of Protection in a very similar way to children’s cases in the Family Division, such as ‘RS’.
Myth 8: Archie was not a ‘disabled person’, so one cannot say he was deprived of right to life because of his disability
Truth: Article 1 of the UN Convention on the Rights of Persons with Disabilities says: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” Archie – once found to be alive – clearly fell within this definition.
Hollie complained that Archie was deprived of right to life because of his disability to the UN Committee on the Rights of Persons with Disabilities, which is the most authoritative body in the world for the interpretation of the Convention. The Committee, having considered all judgments of UK courts which detail Archie’s condition, nevertheless took the complaint seriously enough to issue Interim Measures. It could not have done so if it thought that Archie was not a disabled person.
Myth 9: UN Interim Measures are only a request, not a legally binding injunction
Truth: ‘Interim Measures’ is an injunction issued by international courts and human rights bodies to protect parties from harm while they consider the case. While they are traditionally worded in the diplomatic language of ‘request’, it is well established in international law that they are binding on the country they are addressed to provided it had joined the relevant international treaty.
The Grand Chamber of the European Court of Human Rights considered this question in the seminal case of Mamatkulov v Turkey (2005) 41 E.H.R.R. 25. It concluded that there was a general principle of international law whereby Interim Measures were binding. It was because Interim Measures granted by UN bodies were binding that the European Court concluded that its own Interim Measures must also be binding.
In Archie’s case, the UN Committee issued Interim Measures which required the United Kingdom “to refrain from withdrawing life-preserving medical treatment, including mechanical ventilation and artificial nutrition and hydration, from the alleged victim while the case is under consideration by the Committee.” Now that this has been done, the UK has wilfully breached its obligations under Article 4 of the Optional Protocol of the UN Disability Convention.
Myth 10: There is no reason to doubt that the senior judges who considered this case made a right decision in accordance with the law of the land
Truth: Cases of this kind are not decided under any written law. They are decided based on the judge’s opinion, and whatsoever the judge thinks to be in the child’s best interests is given the force of law. This is not a rule of law as we understand it – this is, rightly or wrongly, an absolute power of a human being who is a judge to rule over the life and death of another person.
Prevailing cultural and social ideologies can be wrong, and power can corrupt. Having a long track record of ordering the removal of life support from disabled children and adults tends to blind judges (and society) to the obvious idea that something may be wrong with the original principle.
Only at one point did Archie’s case come before a regular civil judge with no previous history of adjudicating matters of life and death – Sir Geoffrey Vos, the Master of the Rolls, i.e. the head of the Court of Appeal. The result was the success of the first appeal which established that Archie was alive. That is the first time in legal history when a family won an appeal against a ruling authorising a withdrawal of life support from their child.
Since then, however, the case was kept within the tight knit family of present and former Family Division judges, who always sided with the Hospital.
Myth 11: ‘Thou shalt not kill’ has absolutely nothing to do with a planned withdrawal of life-sustaining treatment in the patient’s own best interests, based on a medical opinion, in line with NHS protocols, the Royal College Guidance, etc.
Truth: The distinction between active killing and withdrawing life support is very important in the context of a patient in full capacity making decisions for himself. Euthanasia and assisted suicide remain illegal, but a patient has a right to refuse medical treatment, and not to be forcibly treated against his wishes. In these situations, the ethical difference between killing and withdrawing treatment is easy to see.
The same distinction becomes much less clear in a different context, where a judge makes a decision on behalf of the patient – especially, as in Archie’s case, where a judge overrules the patient’s own express wishes. The choice is between life and death. Archie wanted to live. The state overrules his wishes and orders that he must die. On an appointed day, the doctors come into the room and do the act which they know for certain will result in his death. In this context, is the ethical difference so clear?
Sir James Munby in Airedale NHS Trust v Bland [1993] AC 789 argued all the way to the House of Lords that the act of withdrawing life-sustaining treatment amounts to murder. Five ECHR judges in Lambert v France (2015), dissenting, took a similar view.
This is not to say that the problem has a simple solution one way or the other. Some may argue that the real error was made by delaying the natural death with extraordinary treatment in the first place. Even so, the act of removing life support to facilitate a planned death does raise difficult ethical questions. People will have their own opinions on that point, but it is simply not the same ethical question as when the patient (and in the case of children, the parents as well) expresses a wish to end treatment.
Myth 12: Archie’s family and/or the Christian Legal Centre has benefited financially from the court proceedings and crowdfunding
Truth: All the support of Christian Concern and the Christian Legal Centre has been given free of charge. None of the gofundme donations have been or will be given to us.
Nevertheless, there have been significant charges for external solicitors, counsel and medical experts. Some lawyers have worked wholly or partly pro bono, but not all of them. There were also court fees to pay. The crowdfunded donations have contributed towards those costs; the rest will be funded by Christian Concern.
A case like this could easily costs hundreds of thousands of pounds. The family, Christian Concern and the Christian Legal Centre have in no way made money from this legal case. Nor have we received major funding from external groups or donors.
Note: This article originally contained a drafting error in myth 3, incorrectly saying the family was served with the court proceedings on 15 April rather than 27 April.
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