The Court of Appeal of the United Kingdom holds that the life support system for an incurably sick and dying child can be withdrawn for the best interests of the child
Hollie Dance and Paul Battersbee v Barts Health NHS Trust and Archie Battersbee (A child by his Children’s Guardian)
Court of Appeal of the United Kingdom
Sir Andrew Mcfarlane, P & JA; Lady King and Lord Peter Jackson, JJA
July 25, 2022
Reported by Faith Wanjiku and Bonface Nyamweya
Constitutional law– Bill of Rights-right to life- euthanasia- passive euthanasia- passive euthanasia for the best interests of a dying child- where the 2nd respondent was left in a comatose state after suffering brain damage thought to have occurred after he took part in an online challenge at his home- where the 2nd respondent was declared brain-stem dead by doctors after taking part in a viral social media challenge- whether the High Court erred in holding that it was not in the 2nd respondent’s best interests for life sustaining treatment to continue and declared it lawful for that treatment to be withdrawn-Convention on the Rights of Persons with Disabilities, 2006, articles 10 and 12; European Convention on Human Rights, 1950, article 8; Convention on the Rights of the Child, 2013, article 6.
Medical law– euthanasia- passive euthanasia- what were the factors to be considered in withdrawing a life sustaining treatment of a patient.
On April 7, 2022, the 2nd respondent 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 had remained ever since. He had not regained consciousness and his mother had most creditably not left his side since. Initially, proceedings were commenced by the 1st respondent, seeking declarations from the High Court on the condition of the 2nd respondent. The court made orders for the provision of a brain stem testing and also directed a further MRI scan.
The focus was on whether the court could make a declaration that the 2nd respondent was brain-stem dead, thereby permitting the trust, if the declaration were made, to withdraw treatment. On June 29, 2022, the Court of Appeal allowed an appeal against that decision and directed that the matter should be returned to the High Court. That judgment was handed down on July 6, 2022. The case was subsequently allocated to the Court of Protection and the Family Division. Ultimately, the court held that it was not in the 2nd respondent’s best interests for life sustaining treatment to continue and declared it lawful for that treatment to be withdrawn, hence the appeal.
- Whether it was in the best interests of a child declared brain-stem dead for their life sustaining treatment to be discontinued and it be declared lawful for that treatment to be withdrawn.
- What were the factors to be considered in withdrawing a life sustaining treatment of a patient?
Relevant provisions of law
Convention on the Rights of Persons with Disabilities, 2006
Article 10- Right to life
States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.
Article 12- Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
European Convention on Human Rights, 1950
Article 8- Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Convention on the Rights of the Child, 2013
Article 6- The best interests of the child
The Committee underlines that the child’s best interests is a threefold concept:
(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.
(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation.
(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.
- The doctor’s description given regarding the 2nd respondent was far more than that of a boy who was simply on a ventilator. For example, the ability of the brain to monitor, moderate and control bodily fluid and the discharge of urine had completely gone. Whilst, impressively, a drug, vasopressin, could be given to seek to do what the brain would normally do, that was a second rate understudy for the main actor, the brain itself.
- A further consequence of the brain’s failure was that the 2nd respondent’s gut had also failed. The 2nd respondent had lost a very significant amount of weight. Again, medication had been given in an attempt to slow down the gut in order to facilitate better food absorption, but that was second best to what would otherwise have been moderated by brain activity. The 2nd respondent had become anaemic. That further increased the risk of infection, intestinal disorders, abnormal heart rhythm and low blood pressure. The 2nd respondent needed blood tests every hour or two to monitor the acids and salts in his blood. He required intermittent transfusions.
- The outcome sought by the 1st respondent, supported by the children’s guardian, which the court called option 1, was for life-sustaining treatment to be withdrawn from the 2nd respondent at an arranged time at which family members might be present and during which the process that would then follow would be supported by the presence of all the relevant medical personnel. Option 2, strongly favoured by the 2nd respondent’s parents and family, was for the life-sustaining treatment regime to be continued until such time as the 2nd respondent’s body could give up and he would die naturally at a time chosen by God.
- Although the court did not spell the choice out with the same degree of precision, it was clear that the choice between option 1, an arranged removal of life sustaining treatment with the inevitability of death a short time later, and option 2, the continuation of life-sustaining treatment in the knowledge that in the very near future the 2nd respondent’s bodily functions would collapse in an unplanned manner, was before the court.
- Dr Playfor’s evidence was based upon a full examination of the 2nd respondent and his medical history. The informal brain-stem evaluation, which was not mentioned by the court, was but one aspect of a full and comprehensive assessment which included finding the 2nd respondent to be entirely unresponsive with absent pupillary, cough, gag, corneal and ocular-vestibular reflexes and no respiratory effort during a 2-minute informal apnoea test.
- The 1st and 2nd appellants’ primary ground was plainly not without some foundation. It would undoubtedly have been better for the court to have been more explicit in setting out its final conclusions. But, there was a danger that the metaphorical microscope deployed by an appellate court could become over-focused on particular words, or what was, or was not, said in one sentence or another, so that sight could be lost of the judgment as a whole.
- If any failure was only one of presentation, the court had to be careful not to be drawn into allowing an appeal and possibly ordering a re-hearing where, in reality, there had been no substantive error by the court. During the hearing, the court observed that all that was missing was one paragraph and, because of what the court did say, the missing paragraph would write itself as its contents were made clear by what was said elsewhere. If that was so then that new ground of appeal would lack any true substance and had to fall away.
- The counsel for the 2nd respondent noted that investigating who the 2nd respondent was and what his wishes and feelings might be was the central focus of the hearing. It was what the case was about in circumstances where the medical evidence was taken as read and was all one way. In those circumstances, it became very difficult for a potential appellant to argue that a court that had on three occasions expressly said that he had considered wishes and feelings, and who set out and accepted the evidence of religious belief and a stated desire not to have life-support turned off, in some manner ignored:
- The presumption in favour of prolonging life;
- The 2nd respondent’s wishes and feelings;
- The 2nd respondent’s religious beliefs and values;
- The family’s wishes and beliefs;
- The fact that the 2nd respondent did not experience pain;
- The benefit of allowing the 2nd respondent to die at a random time and in a natural way in line with both the 2nd respondent’s and his mother’s wishes.
- In paragraph 42 of the High Court ruling, the focus was on the 2nd respondent’s religious beliefs and his mother’s view that the 2nd respondent would wish for more time and would not want to leave her. Against that background, it was not possible to hold that the court failed to have regard to those important factors in his final analysis. Like the guardian, he plainly treated the views of the family about the 2nd respondent’s best interests with proper respect, and when declining to endorse them he expressed the most profound regret. But he did not, and was not obliged to, give decisive weight to those matters in the face of the overwhelming medical evidence.
- In terms of the attribution of weight, by his clear endorsement of the guardian’s analysis quoted at paragraph 43, the court adopted the guardian’s words as his own. Within that paragraph the 2nd respondent’s wishes were clearly acknowledged, as was the undisputed and overwhelming prognosis that he will not get better. The text then proceeded by recording great thought being given to the 2nd respondent’s wishes and religious beliefs, but those were balanced by the observation that for the reasons highlighted above, the court did not consider that it could have in any way foreseen the circumstances where they were being relied upon.
- Whilst it was, most sadly, correct that it was the medical evidence that ultimately determined the outcome of the court’s best interest determination, he had clearly taken full account of the countervailing factors. Those factors, and in particular the 2nd respondent’s individual feelings and religious beliefs, were insufficient to avoid a finding that the continuation of life-sustaining treatment was no longer in the best interests of that moribund 2nd respondent, who was weeks away from a death which would otherwise occur from a gradual further deterioration and then failure of his organs followed by the failure of his heart. Consent could only be given to medical treatment where it was in the patient’s best interests and the consequence of the court’s assessment was that continued life-sustaining treatment for the 2nd respondent would not be lawful, even for a period of days or weeks.
- Permission to appeal could only be granted on the parents’ new ground of appeal if there was a real prospect of it being shown that the court’s decision was unjust because of a serious procedural irregularity arising from the manner in which he approached the decision and expressed his reasoning. After a detailed examination, the court did not accept that there was any prospect of the decision being shown to be wrong or unjust, whether for procedural reasons or otherwise. The new ground of appeal related only to matters of form and raised no matter of true substance. In the circumstances, the court was satisfied that an appeal on that ground did not have a real prospect of success and that there was no other compelling reason for granting permission to appeal. In that truly tragic case, the 2nd respondent’s best interests had rightly and repeatedly been given the most anxious attention and the trial court had made a conscientious decision that the Court of Appeal would not disturb.
Relevance to the Kenyan jurisprudence
The Constitution of Kenya, 2010, in article 26 (1) and (3) states that every person has the right to life and that a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law. Article 28 adds that every person has inherent dignity and the right to have that dignity respected and protected.
Regarding the best interests of the child, a recent research in Kenya by Grace Irimu, David Gathara, Dejan Zurovac et al, as manifest in their article:
Performance of Health Workers in the Management of Seriously Sick Children at a Kenyan Tertiary Hospital: Before and after a Training Intervention, stresses that: Active dissemination of locally adapted clinical guidelines for common serious childhood illnesses can achieve a significant impact on documented clinical practices, particularly for tasks that rely on competence of individual clinicians. However, more attention must be given to broader implementation strategies that also target institutional and organisational aspects of service delivery to further enhance quality-of-care.
Moreover, Alphonce Barrack who is a legal expert, in his article: A dignified exit: a critical look at the position of euthanasia under Kenyan law, asserts that:
The question of whether one’s health can deteriorate to a point that self-destruction is justifiable with the assistance of medical practitioner is not yet acceptable in Kenyan society. This thus results into a professional and ethical dilemma for Kenyan medical practitioners whenever a situation that may call for euthanasia manifests itself. Professional and ethical dilemma in this context is understood as the gap between professional obligations and responsibilities of heath care professionals, and efficacy of health care system.
The Kenya National Patients’ Rights Charter of 2013 (the Charter) gives patients the right to the highest attainable standards and quality of health care in article 5. Article 6 of the Charter further affords patients the right to refuse treatment.
The Persons with Disabilities Act of 2003 in section 20 notes that:
The Council shall be represented in the implementation of the national health programme under the Ministry responsible for health for the purpose of –
(d) enabling persons with disabilities to receive free rehabilitation and
medical services in public and privately owned health institutions;
(e) availing essential health services to persons with disabilities at an
(f) availing field medical personnel to local health institutions for the
benefit of persons with disabilities; and
(g) prompt attendance by medical personnel to persons with
The Children Act, 2010 [Rev 2012], in section 4 notes that every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child and that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Section 12 insists that a disabled child shall have the right to be treated with dignity, and to be accorded appropriate medical treatment.
The court in Kenya Society for the Mentally Handicapped (KSMH) v Attorney General & 7 others  eKLR dismissed the petition noting that although the petitioner complained about health and education policies which were discriminatory and that undermined the dignity of persons with disabilities, the petitioner did not set out specific policies for the court to examine and make an appropriate assessment for itself.
Therefore, the case is significant to the Kenyan jurisprudence since it clarifies on the issue of passive euthanasia for an incurably sick and dying child in relation to the best interests of the child.