The Archie Battersbee litigation has featured a series of different applications. The first, back in April 2022, resulted in a decision that it was lawful for clinicians to undertake brain stem testing, despite the parent’s objections. The brain stem testing could not be undertaken and the High Court was called upon to address whether Archie could be declared lawfully dead. Arbuthnot J made a finding of brain stem death, having been persuaded by clinical evidence, and applying the civil standard of proof which assesses the situation ‘on the balance of probabilities’ i.e. is it more likely than not that he is brain stem dead? The Court of Appeal concluded that this was the wrong approach and that it was wrong to declare Archie brain stem dead. He was therefore treated as still alive with the matter sent back to the High Court to make a best interests assessment. (We explain the Court of Appeal decision here). The High Court hearing took place on Monday 11 July. Judgment was handed down and published on Friday 15 July.
The judgment is sensitive and empathic and acknowledges the extent of the tragedy for Archie and his family. Hayden J provides a comprehensive application of the best interests test. He explains the medical implications and makes clear the severity of Archie’s brain damage. At [23] he explains that Archie is beyond experiencing pain and pleasure. However, he also emphasises at [25] that this is not solely a medical issue. At [27]- [34], Hayden J explains some wider context including the media campaign by the parents as well as insights about his personality, his interests as a lively, young and talented gymnastics enthusiast and his views about religion, life and death.
In weighing up the benefits and burdens, the judge could not ignore the bleak outlook of Archie’s condition and considered continuation of treatment to be intrusive, burdensome and intensive, and that it would compromise his dignity, autonomy and welfare. Hayden J concluded with ‘profound regret’ that further treatment was futile and that it was not in Archie’s best interests to continue life-sustaining treatment. He also refused permission to appeal and the family have until 2pm on Monday 18 July to seek permission to appeal directly from the High Court.
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