Archie Battersbee, a 12-year-old boy from south-east London, suffered a serious head injury while at home just over a month ago. He was found in an unconscious state after being accidently strangled by a ligature. Following the accident on 7 April, he has been convalescing at Royal London Hospital in Whitechapel. Archie's parents, Hollie Dance and Paul Battersbee, are embroiled in a High Court battle against the hospital which can ultimately determine if Archie will live or die, with the latest hearing taking place on 12 May.
The hospital brought the case to the High Court on the grounds that they believed Archie to be clinically dead. They are seeking to have a "brain stem" test administered. They argue that should the test determine Archie to be braindead, they would remove life supporting treatment.
Archie's mother has been at his bedside non-stop throughout his hospitalisation. The parents are fighting the hospital's request on several grounds. First, they argue that the test is unreliable and provided numerous instances where people have failed the test only to wake up later. They also argue that the test is premature as he has only been recovering for a month and there is still time for improvement over time. Head injuries typically take significant amounts of time to resolve. Lastly, the test would require his ventilator to be removed which, even should he pass the test, could cause significant long-term damage to his chances of a more meaningful recovery.
The family has also noticed that over the course of the month, Archie's grip has significantly increased in its strength. They have argued that if he was in fact brain stem dead, his body functions would have stopped within days, when the reality is that those functions have continued for several weeks.
Brain death is an ill-defined concept which in many ways contradicts the position of religion and bioethics. While there is no definition of death in UK law, courts have followed the guidance of the Royal Colleges, which is subject to change and political will. Its lack of precision can clearly be highlighted by Archie's case.
According to the guidance of the Royal Colleges, if Archie was in fact brain dead, as his doctors are contending, his bodily functions would have already disintegrated. The fact that they have not leads to only two conclusions. Either he is brain dead, and the guidance is wrong about functions coming to an end imminently; or the guidance is correct, and the fact that Archie's body has continued to function shows he is not brain dead and the test is not needed. Either position leads to the presumption that the test should not be performed against the parents' wishes.
Archie's parents, while praying for a miracle, have expressed to the court that they understand Archie may be a very different boy should he eventually wake up but that his life, whatever his condition, had much more value than the hospital was suggesting. The family is willing to dedicate their life to his fulltime care if required.
Adding to their frustration has been the hospital's inefficiency in providing key medical records about his condition, including the MRI scans the doctors are relying on to diagnose him. The family, after filling out and re-filling out forms for 3 weeks to access the records, were then told that they would need to fill out an entirely different set of forms because of the legal proceedings.
Sadly, Hollie and Paul's life and death battle for their son is not the first such court battle in the UK. The world has watched as Alfie Evans, Isaiah Haastrup and Charlie Gard were essentially ordered by the court to die against the wishes of the parents to move hospitals, and even countries of residence where offers of care were made. In another high profile case, RS, a polish national, was essentially starved and dehydrated to death after a court order.
The cases raise a serious question about the life and death powers of judges in the UK and procedural rules which make it incredibly difficult for family members to challenge bad findings of fact made at the initial hearing. Essentially in UK law, where facts are determined by a judge at the initial stage of proceedings they will remain the facts throughout all appeals, unless the higher courts rule those findings to be perverse, which is an incredibly high threshold to overcome.
Many times, parents at this stage will not have 'expert' lawyers in this area defending them because of their lack of knowledge about the process. Lawyers' fees are also a huge issue, especially in the UK where they can be astronomical. The cases are also highly rushed, with the hospital already being prepared to provide evidence in anticipation of filing their case to the Court of Protection. On the other side of the aisle, hospitals often use Queen's Counsel or other top lawyers, at taxpayer expense. Sadly, more times than not, the proceedings turn out to be adversarial, meaning the hospital tries to set out its case in the most dire of terms to convince the judge their motion is just. The end result is a process which very much favours the hospitals.
There are also outstanding questions about how patients die. Euthanasia is illegal in the UK, nonetheless, hospitals after receiving a court order have the power to starve or dehydrate a patient to death who otherwise can survive without life supporting equipment. In the case of Alfie Evans, this was done with police at the door to ensure no one could interfere.
In cases like Archie's, it is uncontested that hospitals can withdraw life sustaining treatment or refuse care against the parents' wishes should a court so order. However, removing care or refusing care is wholly different than actively preventing the family from receiving care elsewhere. It is perhaps this legal anomaly, where hospitals can end a life against a parent's wishes, even if the parents have found alternative care, which has captured the public's outrage. The draconian method of death where starvation or dehydration are used has also given the UK a black eye on the international stage.
What happened to Archie because of his accident is a tragedy. However, it will be an even greater tragedy should he be removed from ventilation prematurely to perform a test which is known for its inaccuracy. After all, he has been recovering for only one month.
In a caring and humanitarian world, Archie should be given a chance to recover. His young life is precious, and time may be his friend, should the courts allow it. While even then he may not recover, the compassionate thing would be to give him a chance to survive. He is worth it. May his mother's prayers be heard and may the court rule that Archie deserves this chance at survival.
Roger Kiska is a Legal Counsel with the Christian Legal Centre.