September 26, 2022

Once again, UK lawyers duel over ‘brain dead’ youngster

The United Kingdom is once again debating brain death. In recent years there have been several high-profile disputes between parents who want to keep their child alive and the National Health Service. Charlie Gard, Alfie Evans, Pippa Knight , and  are the best-known names.

At the centre of the latest heart-rending fight is 12-year-old Archie Battersbee. His mother found him unconscious at their home on April 7. He never recovered. His heart is beating, but doctors say that he is brain-stem dead and should be removed from life support. His parents have resisted this, but last week the High Court agreed. Mrs Justice Arbuthnot concluded Archie had died at noon on May 31.

The position of the doctors is that Archie has irreversibly lost his capacity for breathing and consciousness. As far as they can determine, he is brain dead. And under UK law, a brain dead person is legally dead and treatment should cease.

The parents plan to appeal, but according to bioethicist Dominic Wilkinson, they will fail, even if the case drags on in the courts for some time.

An analysis by the Anscombe Bioethics Centre offers a more sceptical perspective on this all-too-common and extremely painful dilemma.

Decisions of this kind are strongly influenced by ethical, religious and cultural attitudes and, in the United Kingdom, these attitudes include a deference to the medical profession (“doctor knows best”), an understatement of the role and rights of parents, and a prejudice that unconscious and minimally conscious patients are incapable of deriving any benefit from life.

The analysis pointed out three weaknesses in the doctors’ arguments.

In the first place it seems extraordinary that questions of life and death should be matters of a balance of probability rather than determination beyond reasonable doubt…

A second reason that this decision is unsettling is that the tests for brain stem death, as set out in the Code of Practice, were never completed. Death had not been established by the standards of the Code. The judge based her decision not on best practice but on the opinion of doctors that it was “likely or very likely” that Archie was dead. However, what is “very likely” is not certain, and one source of doubt is the fact that Archie’s heart continues to beat…

[Third] More concerning still is the fact that the judge regarded it as in the best interests of Archie to have ventilation withdrawn, even though he was not in pain and even though he had expressed a view that he would wish to receive life-sustaining treatment….