Hollie Dance v Barts Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Sir Andrew McFarlane P |
| Judgment Date | 25 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1055 |
| Docket Number | Case No: CA-2022-001392 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1055
Sir Andrew McFarlane, PRESIDENT OF THE FAMILY DIVISION
Lady Justice King
and
Lord Justice Peter Jackson
Case No: CA-2022-001392
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE HAYDEN
[2022] EWFC 80 (15 July 2022)
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Devereux QC, Bruno Quintavalle and Robert George (instructed by Andrew Storch Solicitors) for the Appellant Parents
Gavin Millar QC and Fiona Paterson (instructed by Kennedy's Law) for the Respondent NHS Trust
Claire Watson QC and Maria Stanley (instructed by Cafcass Legal) for the Child by his Children's Guardian
Hearing dates: 21 & 22 July 2022
Approved Judgment
Introduction
This judgment is given following a hearing in connection with an application for permission to appeal made by the parents of Archie Battersbee, a 12-year old, who for some weeks now has been in a deep coma and on a life support regime in hospital. Tragically, on 7 April 2022, Archie was found to be in a very profoundly damaged state by his mother, with a ligature around his neck in their home. He was taken to hospital where he has remained ever since. As I understand it, he has not regained consciousness and his mother has most creditably not left his side since. The family, as best they can, have visited regularly, as have many of Archie's friends. He is a much-loved boy who is at the centre of these proceedings and at the centre of his loving family.
Initially, proceedings were commenced by Barts Health NHS Trust, seeking declarations from the High Court. These developed into an application before Arbuthnot J, who in a judgment on 13 May 2022 made orders providing for brain stem testing and also directed a further MRI scan. In the hearing before her, the focus was on whether the court could and would make a declaration that Archie was brain-stem dead, thereby permitting the trust, if the declaration were made, to withdraw treatment. On 13 June 2022 this was the decision that Arbuthnot J came to, and she made the declarations sought. On 29 June 2022, in the Court of Appeal, the Master of the Rolls, myself, and Lady Justice King allowed an appeal against that decision and directed that the matter should be returned to the High Court. That judgment was handed down on 6 July 2022. The case was subsequently allocated to Hayden J, who is the Vice President of the Court of Protection and a Judge of the Family Division. On 11 July 2022, a full day hearing took place before that judge, and he handed down his judgment on 15 July 2022. Ultimately, he concluded that it was not in Archie's best interests for life sustaining treatment to continue and declared it lawful for this treatment to be withdrawn.
In determining issues of this nature a court is required to afford paramount consideration to the best interests, in the widest sense, of the individual child. The judge must maintain a keen and unwavering focus upon the child's best interests throughout the hearing and this must be the central core of the concluding judgment. The question of whether the judgment of Mr Justice Hayden demonstrates that this was his approach is now at the centre of the parents' case on appeal.
The judgment
It is helpful at this stage to summarise the content of the judgment. At the start the judge was clear that the investigation of where Archie's best interests now lie “requires unswerving focus on Archie” [paragraph 3]. In paragraphs 5 to 24 the judge gives a detailed account of Archie's current medical condition. At paragraph 25 he then said:
‘Determining where Archie's best interests lie is not solely a medical issue. It is important that I place him, his personality, his wishes, at the centre of this process. Respect for Archie, as a person, involves a clear recognition that as a human being, he is more than the raft of medical complexity that I have set out above. He is not, in my judgment, simply who he is now, but he is also who he has been throughout his short life.’
Mr Edward Devereux QC, leading counsel for Archie's parents on appeal, described that paragraph as being the “right direction” for the judge to have given to himself at that stage. The judgment then continues from paragraphs 26 to 31 with a detailed account, drawn from the written statements together with the oral evidence of both parents and Archie's children's guardian, in which the judge developed a detailed pen-portrait of this previously lively and most engaging boy.
Archie's religious beliefs are a prominent aspect of the case presented by the parents to this court, as was clearly the case before Mr Justice Hayden, who summarised matters in this way at paragraph 30 of his judgment:
‘Intermittently throughout his life, Archie's mum told me he spoke about God and life after death. He first raised it when he was 5 years of age, but it was not raised again until much later. Archie was fully aware that MMA [Mixed Martial Arts in which Archie took a keen interest] can be a dangerous sport. He related to his Mum how the MMA fighters prayed for protection when they entered the ring. He requested a crucifix for which he paid £5 a week from his pocket money to buy it. Mum tells me that Archie had frequently requested to be Christened. In the daily bustle of life, they never got round to it. But, in hospital, the chaplain had baptised Archie, [brother] Tom, his sister and Mum into the Anglican Church. I am considering Archie's best interests in the context of a young man who believed in God and whose family believe in God.’
Another important factor for the judge to consider was Archie's view on the very question that was before the court. He summarised the evidence at paragraphs 31 and 32 in this way:
‘[31] Though I have not heard from Tom, Archie's mum relates a conversation that is said to have occurred between Archie and his brother. They discussed what would happen if either of them was in a car accident on a life support machine. My own judicial experience of these kind of conversations, most particularly in the Court of Protection, is that conversations of this kind … occur regularly amongst family and friends, with varying degrees of detail. Tom was clear that, for himself, he would want to “turn the machine off”. Archie is said to have responded “I wouldn't want to leave Mum and I would try to get out of bed”. I accept the abroad accuracy of this conversation, not least because it resonates entirely with what Dad told me about Archie's concern for his mum's welfare. It says a great deal about Archie that when contemplating existence on a life support machine, his thoughts were not for himself at all, but for his mother.
[32] My concern is with Archie, but what he might have wanted is integral to my evaluation of his best interests. Archie's mum described him as her “best friend”, but for all the reasons considered above, it also strikes me that he also sees himself as her protector, her Chevalier. Mum told the guardian that she “knows” that Archie “would not want to leave her”. She also told the guardian that “I think he would want me to fight for him; for time… think he would be saying I'm going to get there, don't give up on me. That's the fighting spirit. He wouldn't give up… no way”.
In considering Archie's best interests, the judge and, now, this court must engage with the full detail of this 12 year old's medical condition. The judge summarised the evidence of Doctor F, a consultant paediatric intensivist. He considered that her evidence casts some light on “the reality of Archie's day-to-day experience”. The summary is short but devastating in describing the all-embracing nature of the damage that has resulted from the original brain injury three months ago:
‘She told me that with brain injury as devastating as that sustained by Archie, the loss of brain function, inevitably, causes adverse cardiovascular, respiratory, endocrine, metabolic and haematological change. This in turn creates instability in organ function and in the heart. In her statement, Dr F lists the treatments that seek to manage or mitigate this instability.’
The judge then went on [paragraph 18] to list no fewer than 17 interventions or other aspects of the treatment regime which are required to maintain the functioning of Archie's body at a very basic level. The description given is more, far, far more, than that of a boy who is simply “on a ventilator”. For example, the ability of the brain to monitor, moderate and control bodily fluid and the discharge of urine has completely gone. Whilst, impressively, a drug, Vasopressin, can be given to seek to do what the brain would normally do, this is, as the judge said, a second rate understudy for the main actor, the brain itself.
A further consequence of the brain's failure is that Archie's gut has also failed. Archie has lost a very significant amount of weight. Again, medication has been given in an attempt to slow down the gut in order to facilitate better food absorption, but this is second best to what would otherwise have been moderated by brain activity. Archie has become anaemic with, in the words of the judge, the following consequences: ‘inevitably, anaemia adds to the burdens that have been discussed above. It further increases the risk of infection, intestinal disorders, abnormal heart rhythm and low blood pressure. Archie needs blood tests every hour or two to monitor the acids and salts in his blood. He requires intermittent transfusions.’
Although this is contrary to his mother's experience of feeling Archie squeeze her hand on one occasion, none of the medical staff has witnessed any sign of spontaneous...
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