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Family law: Archie Battersbee case raises questions on legal reform for family–clinician disagreements
The recent case of Archie Battersbee has drawn attention to the potential for disagreements between families and doctors, where a hospital trust believes life-preserving treatment should be withdrawn and the family disagrees.
Battersbee was a 12-year-old English boy who suffered a catastrophic brain injury in April, reportedly as a result of participation in a viral social media challenge.
Doctors found that Battersbee had been deprived of oxygen for about 40 minutes, and diagnosed brain stem death. After his family declined consent for confirmatory tests, Barts NHS Health Trust applied to the courts for an order permitting the tests to be carried out, and later to also consider whether Battersbee should continue to receive mechanical ventilation.
After several hearings and applications by the family to the Supreme Court, the European Court of Human Rights and the UN Commission for the Rights of People of Disability, on 1 August the UK Court of Appeal declared that ‘every day that [Archie] continues to be given life sustaining treatment is contrary to his best interests’.
After his death on 6 August, Battersbee’s family, through their lawyers, the Christian Legal Centre (CLC), said: ‘We want something good to come out of this tragedy and the horrendous experience we have been put through by the system. No parent or family must go through this again.’
There are now plans to formulate and propose an ‘Archie’s Law’ to address the family’s concerns – a spokesperson for the CLC told Global Insight that the details would be worked out after a meeting with the Health Secretary. The proposal for Archie’s Law would follow similar campaigns by the parents of other children to change the way disagreements between families and clinicians are handled.
It’s quite difficult to mediate if the hospital is saying the evidence only points to ‘here’ and the family is saying the evidence points to ‘here’
Barbara Connolly QC
Member, IBA Family Law Committee Advisory Board
UK doctors must abide by Royal College of Paediatricians and Royal College of Physicians guidelines when making decisions about when to end treatment. If families withhold consent, the hospital can ask the court to make the final decision – the Family Court in cases concerning children, and the Court of Protection for adults.
‘There has to be a mechanism. If it’s not the court you have to decide on something else,’ says Barbara Connolly QC, a Member of the IBA Family Law Committee Advisory Board and a barrister at 7BR Chambers in London; Connolly is a specialist in this area.
‘Charlie’s Law’ – named after baby Charlie Gard, who died in 2017 after treatment was withdrawn – calls for mediation. A House of Lords amendment to the UK’s 2022 Health and Social Care Bill that would have introduced this concept was overturned in the House of Commons before the Bill received Royal Assent in April.
Gard’s parents continue to campaign for the change. Meanwhile, the Health and Social Care Act did introduce a requirement for reviews of these types of disputes to be carried out.
Mediation is not unknown in these cases. For example, the Guy’s and St Thomas’ NHS Foundation Trust in London runs the Evelina Mediation Service to resolve conflict; requests can be made by patients, parents, hospital staff and members of the Patient Advice and Liaison Service.
Yogi Amin, National Head of Public Law & Human Rights at Irwin Mitchell in the UK, says mediation is sometimes a good way of resolving conflict, but often cases need urgent resolution.
Connolly agrees, and adds that ‘it’s quite difficult to mediate if the hospital is saying the evidence only points to “here” and the family is saying the evidence points to “here”’.
Additionally, the courts do not always support the hospitals.
‘There’s a strong argument that in some cases a very strong weight should be placed on the parents’ view, which may weigh against the decision about the doctor’s views on the benefits for the individual’, Amin says.
Ultimately, the court is trying to decide what lies in a child’s best interests. Referring to the Charlie Gard case, Ben Troke, Head of Health Advisory at UK firm Hill Dickinson, wrote in his 2020 book A Practical Guide to the Law of Medical Treatment Decisions that ‘The court reasserted that it is ultimately in the court’s power to resolve any dispute and the only question is what is in the child’s best interests’.
One area where there could be change is to allow families to receive legal aid, regardless of their means. This has been proposed by the UK government in its review of the legal aid means test, the consultation for which ran from March to June, with feedback now being assessed.
Both Connolly and Amin say that allowing legal aid would give families one thing less to worry about, and the number of cases each year is small enough that the financial burden on the state would be relatively small.
These tragic cases will not disappear even if the law is changed, because medicine will continue to advance and the death of a loved one is always hard.
‘We should recognise the agony of whether to do something is a by-product of the medical and technological advances that allow us to save and sustain life beyond anything imaginable not long ago’, wrote Troke. ‘The social, legal and ethical issues can sometimes lag well behind the technical developments.’
Amin and Connolly both say that in the end, the courts will continue to be the most suitable arbiter where the disagreement between families and hospitals cannot be resolved.
‘It has to be something with authority. It’s what the judge is trained to do, to make a decision in hard circumstances, and they don’t do it lightly’, Connolly concludes.
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