The Court of Appeal is today (Monday 1 August) holding an urgent online hearing at 11am following interventions in 12-year-old Archie Battersbee’s case from the government and the UN.
The legal stay on removing Archie’s life support was put back in place until 1pm on Monday 1 August. Barts Health NHS Trust had set a deadline of 2pm to remove the life support as, until the intervention, there was nothing legally in place to prevent it from being removed.
UN intervention leads to High Court hearing
On Sunday afternoon (31 July), the Government Legal Department dramatically referred Archie’s case back to the Family Division of the High Court for ‘urgent consideration’. The move followed the United Nations Committee on the Rights of Persons with Disabilities (UN CRPD) issuing an interim measures injunction on Friday 29 July to the UK government.
Supported by the Christian Legal Centre, the families’ lawyers had made a last-ditch application to the UN CRPD following the refusal of the UK’s Supreme Court to intervene in the case on Friday 28 July. The UK has joined the Optional Protocol to the Convention on the rights of persons with disabilities, which enabled the UNRPD to ask the UK government to delay the withdrawal of life support while a complaint is investigated.
The family argue that stopping treatment would be in breach of the UK’s obligations under Articles 10 and 12 of the UN Convention on the Rights of People with Disabilities, and Article 6 of the UN Convention on the Rights of Children.
The UN CRPD has previously criticised the UK system of withdrawing life-sustaining treatment based on the patient’s ‘best interests’ as determined by the Court. In its 2017 “Concluding observations on the initial report of the United Kingdom” on UK’s compliance with the Convention, the CRPD stated: “The CRPD notes with concern that the substituted decision-making applied in matters of termination or withdrawal of life-sustaining treatment and care is inconsistent with the right to life of persons with disabilities as equal and contributing members of society.”
Plans to remove life support
Despite the intervention, Barts Health NHS Trust, who are responsible for Archie’s care at the Royal London Hospital, said that they would carry on with plans to remove life-support.
Yesterday afternoon, Archie’s family had also released a statement responding to comments in the media from the hospital Trust regarding withdrawal of life-support, which they have described as ‘misleading’:
“The Trust has been dragging us as a family through the courts at a breakneck speed from 27 April till the final decision of the Supreme Court this Thursday evening. The urgent application to the UN had to be prepared overnight by our legal team and submitted Friday morning. On the same day, despite the interim measures granted by the UN, the Trust unilaterally informed us that the withdrawal will take place at 2 pm on Monday and that was not negotiable.
“… the Trust has no intention of ‘starting palliative care’. As the order of Mr Justice Hayden records, the Trust informed the Court that ‘the implementation of paragraph 3 of this recital and paragraph 2 of the declarations set out below will result in the child, Archie Battersbee’s death, within a short period of time thereafter’. There may be different descriptions for doing an act which is known and intended to result in the child’s immediate death. ‘Starting palliative care’ is simply not one of them. Indeed, we believe this is an insult to all those who do the noble work of palliative care.”
On Saturday (30 July), the mother of 12-year-old Archie Battersbee, Hollie Dance, had written an urgent open letter to the Secretary of State for Health and Social Care, Rt. Hon. Stephen Barclay MP, urging the government to prevent withdrawal of life-support being withdrawn following the UN CRPD intervention.
The letter reads:
Dear Mr Barclay,
You will be aware of the awful tragedy our family is going through since our son Archie suffered severe brain damage in April as a result of an online challenge gone wrong. We are grateful to doctors and nurses at Royal London Hospital for the treatment and care given to Archie in the past four months. However, I am sorry to say that throughout that period, our pain and distress has been being much aggravated by the actions of two or three senior doctors at the hospital, and the management of Barts Health NHS Trust.
From day one, the family as well as the treating clinicians have been put under daily pressure from the Trust to give up on Archie, withdraw life support and let him die. After only three weeks, we were dragged into Court at a few hours’ notice. Since then, throughout these three months, we have been rushed from one court hearing to another every few days, having to fight for Archie’s life against a generously funded army of lawyers and NHS managers.
Throughout these months, we were never given even a few days space to cope with the family tragedy. You will be aware that our case now is before the UN Committee on the Rights of Persons with Disabilities, who have last night issued an ‘Interim Measures’ injunction to the UK government to keep Archie alive while the Committee considers the case. Under Article 4 of the Optional Protocol to the UN Disability Convention, the interim measures are binding on the United Kingdom as a matter of international human rights law.
Devastatingly, the Trust’s lawyers have responded by telling the family that the Trust intends to defy the UN injunction and to proceed to remove life support from Archie as early as on Monday 1 August.
If this happens, this will be an extraordinary cruelty, and a flagrant breach of Archie’s rights as a disabled person. Archie is entitled to have the decisions about his life and death, taken by the NHS and UK courts, to be scrutinised by an international human rights body. Hastening his death to prevent that would be completely unacceptable.
I trust that you will now act immediately, as a member of the government responsible for the NHS, to ensure that this does not happen, and our country honours its obligations under the international human rights treaties which we have signed and ratified.
Please continue to pray for Archie and his family.
Find out more about Archie Battersbee