Barts Health NHS Trust v Hollie Dance
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Arbuthnot |
| Judgment Date | 13 June 2022 |
| Neutral Citation | [2022] EWHC 1435 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD22P00346 |
and
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[2022] EWHC 1435 (Fam)
Mrs Justice Arbuthnot
Case No: FD22P00346
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Fiona Paterson (instructed by Kennedy's Law) for the Applicant
Bruno Quintavalle (instructed by Moore Barlow LLP) for the 1 st Respondent and 2 nd Respondent
Katie Gollop QC (instructed by Cafcass Legal) for the 3 rd Respondent
Hearing dates: 6 th – 8 th June 2022
Draft judgment: 10 th June 2022
Introduction
Applications
I am concerned with Archie Battersbee, a boy aged 12, who was born on 10 th March 2010. He is the much loved and loving son of the First and Second Respondents, Hollie Dance and Paul Battersbee. For convenience I have referred to the Respondent parents as “Archie's mother”, “Archie's father” or as “Archie's parents”.
Barts Health NHS Trust is making two applications in relation to Archie. The first is for the Court to make a declaration that Archie is brain stem dead and that he was dead on a particular date and second, if the Court is not able to make that finding, then the Court should consider whether it is lawful and in Archie's best interests to continue to receive mechanical ventilation.
The applications are opposed by Archie's parents. Archie's mother has been sitting at his bedside for the past eight weeks. His father has been visiting frequently. They rightly say they know their son best. They rely on recent video evidence that they say shows Archie gripping the hand of his mother and tears coming from his eyes. The family argue that Archie needs to be given more of a chance for his brain to recover. They would like to take him home although more recently it appeared that they accept that he will not be able to go home but that they would like him to die naturally in the hospital as that accords with their Christian faith.
The Trust's application is supported by Archie's Guardian.
As will be apparent immediately these are extraordinarily difficult proceedings involving a young boy who is very severely brain damaged. Proceedings of these kinds although rare, are a particular strain on everybody involved and I was very grateful to counsel for the parties for their kind and sensitive approach to the issues raised by this unusual case. Mr Quintavalle and those instructing him were acting pro bono for some if not all of this time and my thanks to him for his considerable work on behalf of Archie's family.
Archie
At the parents' invitation I met Archie at the Royal London Hospital on Friday 27 th May 2022. Ms Stanley the solicitor for the child was present and made a note of the visit.
A lovely looking young boy, Archie seemed very peaceful despite the fact that he was connected to a number of tubes and medical equipment. His mother, and Ms Carter, his brother's partner and the family spokesperson, were also present. They were holding his hand. From what I know, the mother has hardly left his side in the eight weeks since his accident. I saw the bedside chair which converts into a single bed which she has been sleeping on.
The mother introduced me to the many teddies surrounding Archie: memorably a rather bald teddy is called Barry that he named after a friend with a receding hairline. There were also many new ones given to the family by well-wishers.
The devotion of the family is extraordinary, their dignity obvious, I have no doubt at all that their worst fear is that the clinicians are right, and that their much-loved son has lost his present and his future and that this period in which their lives have been in suspension is coming to an end.
The visit has allowed me to hold Archie in my mind's eye as I have considered the applications made by the Trust. He has become much more real to me than when I had merely a photograph showing him with his well-earned medal for gymnastics.
Background
On 7 th April 2022 the mother found Archie suspended by his neck from the banisters in the family home. He had been away from her sight for about ten minutes. It would seem he had had a tragic accident when messing around with a dressing gown cord.
The mother managed to get him down and administered CPR. She called the ambulance service at about 4.12pm which arrived at 4.20pm and paramedics continued the CPR on their way to the hospital. When they arrived he had had a cardiac arrest and had no pulse and spontaneous circulation was only achieved at 4.48pm. During this period of cardiac arrest, it seems Archie's brain was starved of oxygen and blood supply for a number of minutes.
Archie was taken to Southend Hospital and underwent investigations. Later that night or in the early hours of the following day he was transferred to Royal London Hospital where he has remained ever since. He has never regained consciousness and remains in a coma.
In the past eight weeks Archie has undergone a number of tests. His case has been considered by the treating clinicians at the Royal London Hospital and at various points the hospital has obtained second opinions from other specialists, some of them based at different hospitals.
The tests that Archie has undergone have a particular importance in the light of the unique situation the hospital found itself in when it became impossible to administer to Archie the approved brain stem test for neurological death.
The Court process leading up to 6 th June 2022
Proceedings were started on 26 th April 2022 when the Trust made two applications, the first for a Specific Issue Order under section 8 of the Children Act 1989 that it was lawful for Archie to undergo brain stem testing in accordance with the Academy of Medical Royal Colleges' 2008 Code of Practice for the Diagnosis and Confirmation of Death (“the Code of Practice”) to establish whether or not he was brain stem dead. The parents had refused to give their consent to the test.
The second application was for a declaration that it was lawful to withdraw mechanical ventilation from Archie, which would result in his heart stopping beating.
Archie's case came before the High Court on two occasions for directions, it came before Roberts J on 28 th April 2022 when the family was not represented but Archie was joined as a party and a Guardian was appointed. A Reporting Restrictions Order (“RRO) prohibiting the identification of any of the parties was made. It came before Morgan J on 4 th May 2022 when the family was represented by Mr Quintavalle. The matter was directed to be listed for the brain stem test question to be considered by the Court.
The hearings in this matter have been conducted in private with the attendance of accredited members of the press. On 4 th May 2022, a Reporting Restrictions Order (“RRO”) was made preventing the publishing or broadcasting of any information which identified or was likely to identify any person, doctor or healthcare professional or other who has cared for or treated Archie and any who have provided a second opinion. The order originally also applied to the CAFCASS Guardian. However, after it was made, the Guardian did not pursue anonymisation for herself and she was named in my judgment published on 13 May 2022. The RRO remains in force and I have anonymised the doctors and other healthcare professionals whose evidence I have summarised below. For the avoidance of doubt, assuming compliance with the RRO and subject to any future alteration to it, the provisions of s12(1) of the Administration of Justice Act 1960 have not and shall not apply to reporting of the hearings concerning Archie.
Archie's case came before me on 12 th and 13th May 2022 by which time very sensibly the Trust had decided to proceed with one application only which was for an order that a brain stem test should take place.
On 9 th May 2022 Dr Playfor an independent specialist intensivist examined Archie and administered an informal Code of Practice brain stem test. I heard evidence from Dr Playfor who recommended that the formal Code of Practice brain stem test should take place.
Archie's mother alleged that evening that he had gone into hypotension after Dr Playfor's tests, so I also heard from Dr F, Archie's treating Consultant Paediatric Intensivist from the Royal London Hospital when it became clear from the extensive medical records that Archie had had no reaction at all to Dr Playfor's tests.
Having weighed up the risks I made an order that Archie be subject to brain stem testing using the approved test. The ex tempore judgment I gave on 13 th May 2022 should be read in conjunction with this judgment.
On 16th May 2022, two independent intensivists working for different Trusts, Drs Q and E, attempted to administer the brain stem test. The test was not able to be performed because Archie did not react to the peripheral nerve stimulation tests which were a precursor to the brain stem test. Had the brain stem test then been performed the results may have provided a false negative result.
The brain stem test is the approved way to test for death by neurological criteria (“DNC”). The witnesses called by the Trust in the last few days said they had never had to consider before whether a patient was brain stem dead without being able to administer and rely on the results of the Code of Practice tests.
In view of the inability to carry out the brain stem test, the Guardian made an application that Archie be subjected to a further MRI scan of his brain and spine. This was opposed by the parents who were concerned about the risks to Archie. The purpose of this further test was to show what had been happening to Archie's brain between 15 th April 2022 when the last MRI scan...
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