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Unforced errors by Archie’s lawyers
Hospital deserves credit for patience and forbearing
Archie Battersbee died on Saturday. His parents deserve our deepest sympathy.
As I wrote here on 26 July, the legal challenges they brought against the proposed withdrawal of his life support could have been better handled by the two High Court judges who dealt with the case in its earlier stages.
Since then, though, Archie’s parents have made several unforced legal errors. By contrast, lawyers acting for the hospital trust and for the guardian appointed to represent Archie’s interests acted with great skill and sensitivity. Judges sat at short notice during the legal vacation — and in one case, worked through the night — to ensure that justice was delivered swiftly and fairly.
Archie’s parents were supported by an organisation called the Christian Legal Centre, part of a group called Christian Concern. Four years ago, the group assisted the parents of a toddler called Alfie Evans. At that time, I made a programme for Radio 4 about the Christian Legal Centre and its involvement in the case which can be heard on BBC Sounds.
I am in no position to assess the relationship between the Christian Legal Centre and Archie’s parents. What I can do, though, is discuss the arguments put by their lawyers.
Court records show that the legal teams have changed over the past four months. But leading counsel in the Court of Appeal on 21 and 22 July was Edward Devereux QC, a leading family specialist who won the first appeal in June with his junior Rob George.
At the end of last week, while Devereux may have been on holiday, leading counsel for the parents was James Bogle. His junior was Bruno Quintavalle, who also appeared at earlier hearings. They were briefed by Andrew Storch solicitors.
All counsel and solicitors were acting on the instructions of Archie’s parents and no criticism of any individual lawyer is implied or should be inferred from anything I say in this piece.
Update: Devereux and Bogle have both responded to this piece in the comments below.
Hayden ruling 15 July
The key judgment in this case was delivered by Mr Justice Hayden on 15 July. He concluded that continuing Archie’s life-sustaining treatment would be futile and unlawful. The treatment, he said, “serves only to protract his death, whilst being unable to prolong his life”.
Permission to appeal refused 25 July
The Court of Appeal refused permission to appeal on 25 July. But Sir Andrew McFarlane, presiding, praised Devereux for his “skilful oral submissions” on behalf of Archie’s parents and conceded that his primary ground of appeal was “plainly not without some foundation”.
As I explained in my piece the next day, no further appeal against Hayden’s ruling was possible. However, the judges gave Archie’s parents until 27 July to lodge an urgent application at the European Court of Human Rights. In the meantime, they issued what’s called a “stay” on Hayden’s order.
Supreme Court dismisses application 28 July
Although there could be no appeal against the Court of Appeal’s substantive decision, the family asked the Supreme Court to extend the stay beyond 27 July. That application was refused on 28 July. The hospital had made it clear that they would not withdraw Archie’s treatment while legal challenges were continuing.
UN request 29 July
Nothing was heard from the human rights court in Strasbourg before the end of July. That was because Archie’s parents had chosen instead to approach the Committee on the Rights of Persons with Disabilities, a United Nations human rights body based in Geneva that monitors implementation of a treaty called the UN Convention on the Rights of Persons with Disabilities.
In a request issued on 29 July, the committee asked the UK government to “refrain from withdrawing life-preserving medical treatment”. I discussed this in a piece on 1 August and argued that “the committee’s request does not displace or supersede rulings by the UK’s highest courts”.
Application dismissed 1 August
That turned out to be correct. The Court of Appeal had been asked to enforce the disability committee’s request for a further stay. Giving judgment, McFarlane said:
Despite the firm and clear submissions in which Mr Devereux put the parents’ case in the highest possible terms using phrases such as “mandatory requirement” or “the court has no discretion” or “there would be a flagrant breach of international law” by the court were his application to be refused, I am satisfied that those submissions are, with respect to him, of no foundation whatsoever.
This is an unincorporated international treaty and it is not part of the law of the United Kingdom and, for the reasons set out by Lord Reed in the case of SC, it is not appropriate for this court to apply an unincorporated international treaty into its decision making process, or to investigate whether the UK is in some way in breach of any duty, in particular under UN Convention on the Rights of Persons with Disabilities….
Separately, and with respect to him, the submission that the Equality Act 2010 mandates this court to grant a stay because it incorporates the UN Convention on the Rights of Persons with Disabilities in some manner simply does not get off the ground.
Further appeal dismissed 2 August
An appeal against that decision was dismissed a day later. The Supreme Court said:
First, as Sir Andrew McFarlane has stated in his careful judgment, the courts have reached a decision which is compatible with Archie’s rights under the European Convention on Human Rights, which has been incorporated in part into domestic law by the Human Rights Act 1998. It is not clear that Archie has any more extensive rights in international law under article 10 and 12 of the UN convention under which the committee operates.
Secondly, contrary to Mr Devereux’s submission, a decision by the courts in Archie’s best interests not to give effect to a request by the committee to the UK government for a stay does not involve what he called “a flagrant breach of international law”. It is not clear that such a decision involves any breach of international law, and it is not for this court to rule on such an issue.
Human Rights Court refuses to intervene 3 August
This put Archie’s parents in the worst possible position to make the application to the European Court of Human Rights that they had announced the previous week.
An application for what are called “interim measures” was finally lodged on 3 August and dismissed by the court’s president, Robert Spano, later that day. Though he did not refer to it specifically, Spano clearly took account of what the Supreme Court had said about human rights. He announced that the European court would “not interfere with the decisions of the national courts to allow the withdrawal of life-sustaining treatment from [Archie Battersbee] to proceed”.
But Spano went further, declaring the family’s claim inadmissible. It’s well known that, under article 35 of the human rights convention, the Strasbourg court cannot hear an application until “after all domestic remedies have been exhausted”. But article 35 goes on to say that the court will not deal with any application that “has already been submitted to another procedure of international investigation or settlement and contains no relevant new information”.
While stressing that the question of jurisdiction remained undecided, Spano referred specifically to that provision. And although he didn’t spell it out, his message was clear: by approaching the UN committee a week earlier, Archie’s parents had forfeited their chances of getting an urgent order from the human rights court. They should have tried Strasbourg first.
Final High Court hearing 4 August
It was at this point that Archie’s family tried to get him moved to a hospice. A new application was made to the High Court on 4 August and a hearing was arranged that afternoon before Mrs Justice Theis. Although the hearing was held in private at the parents’ request, accredited journalists were allowed to attend in person or through a remote video link. Judgment was reserved overnight.
Final challenges dismissed 5 August
In her ruling, Theis explained that the parents were seeking to vary the order made by Hayden so that Archie could be moved to a hospice, where treatment would be withdrawn.
In support of that application, the parents’ lawyers wanted to call evidence from a consultant in paediatric respiratory medicine, referred to as Dr R. They had applied for permission just 20 minutes before the hearing. All they could produce in time was a CV which showed he had last worked in a paediatric intensive care unit some 14 years ago.
Unsurprisingly, the judge refused to grant permission for the expert to be called. It would have taken Dr R beyond the weekend to review Archie’s notes and there would have been a further hearing this week at which his report would be considered. That delay would be “inimical to Archie’s welfare”.
The judge considered oral evidence given to her by Dr F, a consultant paediatric intensivist who has been involved in Archie’s care. The risks to Archie were “major and unpredictable”, Dr F had testified.
Theis agreed. “I am satisfied,” she said, “that when looking at the balancing exercise again his best interests remain as set out on 15 July 2022, that he should remain at the hospital when treatment is withdrawn.”
Archie’s parents went straight to the Court of Appeal. Sir Andrew McFarlane, sitting with Lady Justice King and Lord Justice Moylan, considered the application without a hearing. On Friday afternoon, they refused permission to appeal.
As their reasons are not yet widely available, I am setting out their conclusions here:
Two grounds of appeal are advanced by the parents:
(1) That refusing permission to instruct Dr R was a breach of the parents’ right to a fair hearing; and
(2) That, in “making a best interests determination in relation to a person in a coma with no chance of improvement, the court breached the principle established by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James that people in PVS and, thus a fortiori those in an irreversible coma, have no best interests”…
We have come to the clear conclusion that there is no merit in either ground.
As to (1), the judge was right to conclude that permission should not be given for the instruction of Dr R for the reasons she gave. The refusal to permit such instruction did not breach the parents’ right to a fair trial.
Whilst not recorded in the judgment, on being asked by the parents to consider transfer to a hospice, Hayden J stated on 11 July 2022 that this was not an option. It was at all times thereafter open to the parents to apply to the court for permission to instruct an expert. No such application was made until yesterday.
As to (2), this is a new argument which has not previously been advanced in this case.1 In brief, it is flawed legally. It is also not easy to understand as it seeks to argue that Archie’s best interests have ceased to be relevant.
The submission is said to be based on the Supreme Court’s decision in Aintree and the House of Lords in Airedale NHS Trust v Bland. The parents’ argument quotes from paragraph 36 in Aintree and paragraph 94 in Bland and submits, we quote:
“In adopting a best interests approach for someone in an irreversible coma, the learned judge erred in law and went contrary to the principle established unanimously by the Supreme Court in Aintree that a person in PVS has no best interests.”
This is a flawed argument because neither Bland nor Aintree established any such proposition. On the contrary, they made clear that best interests is the relevant test. This can be seen from the following passage Baroness Hale’s judgment [in Aintree] (with whom all the other Supreme Court justices agreed):
In Bland’s case, Lord Goff of Chieveley (with whose judgment Lord Keith of Kinkel and Lord Lowry expressly agreed) pointed out that
“the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment.”
To the same effect was Lord Browne-Wilkinson:
“the critical decision to be made is whether it is in the best interests of Anthony Bland to continue the invasive medical care involved in artificial feeding. That question is not the same as, ‘Is it in Anthony Bland’s best interests that he should die?’ The latter question assumes that it is lawful to perpetuate the patient’s life: but such perpetuation of life can only be achieved if it is lawful to continue to invade the bodily integrity of the patient by invasive medical care.”
Hence the focus is on whether it is in the patient’s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it [end of Hale quotation].
By section 1 Children Act 1989, the welfare of a child is the court’s paramount consideration. That that is equally the case where the issue relates to the withdrawal of medical treatment was made clear by the Supreme Court who stated in March 2018 (when dismissing an application for permission to appeal by the parents of Alfie Evans), that the “gold standard” by which decisions are made in respect of children is “an assessment of (the child’s) best interests”: See Evans v Alder Hey Childrens’ NHS Trust.
In all respects, Theis J’s judgment deals comprehensively with each of the points raised on behalf of the parents. We have reached the clear conclusion that each of her decisions was right for the reasons she gave. It follows that the proposed appeal has no prospect of success and there is no other compelling reason for the Court of Appeal to hear an appeal.
There were two unforced errors by the family here: failing to apply for permission to instruct an expert in time — even though Archie’s mother had been talking about a hospice for some days — and misconstruing the two leading cases in this area of law.
This ruling was reportedly followed by another attempt to involve the European Court of Human Rights, inevitably without success.
In a statement issued through the Christian Legal Centre on Sunday, Archie’s family said:
Yesterday we lost our beautiful boy, Archie. He has fought against all the odds since April, and we are so proud of him.
We are thankful for the huge amount of support we’ve received from so many different people. We are grateful to our legal team and others who have stood with us as we have faced these difficult challenges.
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. We have been forced to fight a relentless legal battle by the hospital trust while faced with an unimaginable tragedy.
We were backed into a corner by the system, stripped of all our rights, and have had to fight for Archie’s real “best interests” and right to live with everything stacked against us.
If the family really believe they have been stripped of all their rights, then what we are hearing is the grief of the newly bereaved. The reality is that courts at all levels have ensured that they could exercise all the rights they undoubtedly had.
I can see little point in a public inquiry, despite the parents’ wish that “something good” should come out of this. The judgments are public documents. The law is clear and settled. Though parents have responsibilities for their children, nobody is seriously suggesting that parental responsibility should bring with it unlimited powers.
it is rare for parents and doctors to be at loggerheads, despite the disproportionate media coverage such cases can provoke. Usually, they navigate the desperately painful process of withdrawing a child’s treatment together.
The Royal London Hospital deserves credit for showing great patience and forbearing. It chose not to take irreversible action even when this was its right and, some would say, its duty. It should have the last word.
On Saturday, Alistair Chesser, chief medical officer at Barts Health NHS Trust, said:
Archie Battersbee passed away on Saturday afternoon at The Royal London Hospital after treatment was withdrawn in line with court rulings about his best interests.
Members of his family were present at the bedside and our thoughts and heartfelt condolences remain with them at this difficult time.
The trust would like to thank the medical, nursing and support staff in the paediatric intensive care department who looked after Archie following his awful accident. They provided high quality care with extraordinary compassion over several months in often trying and distressing circumstances.
This tragic case not only affected the family and his carers but touched the hearts of many across the country.
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Note to readers: unlike some publications, this blog will not be taking a break in August. However, I shall be taking a couple of days off towards the end of September and some more time in the first half of October.
The words “— even, it appears, at the hearing yesterday before Theis J” appeared in the original order at this point. They were deleted by the Court of Appeal under the “slip rule” on 11 August. I am grateful to James Bogle for alerting me to the amendment (see his comments below). This piece was updated on 15 August.