Hollie Dance & Anor. v Barts Health NHS Trust & Anor.

In a decision concerning withdrawal of life-sustaining treatment from an incapacitated child, best interests must be assessed from the child’s perspective and in the widest sense. The assessment includes medical, social and psychological welfare, the nature and outcome of treatment, and the child’s wishes, beliefs and values. There is a strong presumption in favour of preserving life, but it is not absolute.

A child’s expressed wishes and religious beliefs require proper respect but are not decisive. They may be outweighed by overwhelming evidence that treatment cannot improve the child’s condition, is burdensome, and serves only to protract death. A judgment need not use a formal balance sheet where, read as a whole, it shows that the material factors were considered and explains the outcome.

Archie Battersbee, aged 12, suffered a catastrophic brain injury and remained unconscious in intensive care with all essential bodily functions maintained by medical intervention. The hospital trust sought authority to withdraw life-sustaining treatment. His parents wished treatment to continue until he died naturally, consistently with what they said were his wishes and religious beliefs.

Hayden J held that continued treatment was not in Archie’s best interests and declared its withdrawal lawful: [2022] EWFC 80. The parents sought permission to appeal. They challenged the judge’s treatment of Archie’s wishes and beliefs, his factual findings, his characterisation of treatment, and the adequacy of his best-interests reasoning.

The central issue was whether the first-instance judgment, read fairly and as a whole, showed a lawful and sufficiently reasoned evaluation of Archie’s best interests in the widest sense.

1. Permission to appeal was refused on all grounds. The judge had correctly directed himself as to the governing law. An appellate court may interfere only if the decision was wrong and should be especially slow to do so in a sensitive best-interests case: [2013] UKSC 67.
2. The best-interests exercise required consideration of Archie’s welfare in the widest sense. That included the strong but non-absolute presumption in favour of life, the nature and likely outcome of treatment, Archie’s wishes, beliefs and values, and the views of those close to him. His wishes and Christian beliefs were integral considerations, but they were not determinative. The judge was entitled to give them less weight because Archie could not have foreseen his present circumstances and because the medical prognosis was undisputed and overwhelming.
3. The Convention-based grounds had no real prospect of success. Article 2 did not require life-sustaining treatment to continue whenever a patient was irreversibly unconscious. The domestic best-interests framework was compatible with the relevant human-rights and international instruments. Authorities concerning capacitous adults choosing the manner of their own death did not govern an incapacitated child.
4. The factual and treatment-related challenges also failed. The evidence supported findings of no prospect of meaningful improvement, total dependence on intensive intervention, and a near-term death. Treatment could be burdensome despite Archie’s lack of conscious awareness or capacity to feel pain: [2021] EWCA Civ 362. It was open to the judge to find that the regime was futile in the relevant sense, compromised Archie’s dignity and autonomy, and only protracted his death.
5. The judge could have expressed his concluding balancing exercise more explicitly. However, the judgment had to be read as a whole. It identified the competing options, recorded the countervailing wishes, religious beliefs and family views, and adopted the guardian’s careful analysis. There was no serious procedural irregularity and no substantive error. As continued treatment was not in Archie’s best interests, it could not lawfully continue.

• Court of Appeal (Civil Division): Permission to appeal was refused. The court declined to disturb the conclusion that withdrawal of life-sustaining treatment was lawful.
• High Court of Justice, Family Division: Hayden J held that continued life-sustaining treatment was not in Archie’s best interests and declared withdrawal lawful: [2022] EWFC 80.
• Earlier proceedings: An earlier declaration of brain-stem death by Arbuthnot J was successfully appealed, and the matter was returned to the High Court for determination of best interests.