BARTS HEALTH NHS TRUST v HOLLIE DANCE & Ors

Where a child is profoundly brain-injured and clinicians seek formal brain-stem-death testing, the court must determine whether the proposed testing is lawful and in the child’s best interests. The court should assess the reliability and risks of the nationally approved testing protocol, including the apnoea test, against its benefits in clarifying the child’s condition and informing future care. Evidence concerning different protocols, outdated studies, adults, or materially different injuries may carry little weight. Where the benefits of obtaining a reliable clinical determination clearly outweigh the very small procedural risks, a Children Act 1989 specific issue order and declaration may be made.

The NHS Trust applied under section 8 of the Children Act 1989 for a specific issue order and a declaration that formal brain-stem-death testing of Archie Battersbee, aged 12, was lawful and in his best interests. Archie had suffered catastrophic hypoxic-ischaemic brain injury following an accident and remained unconscious and mechanically ventilated.

His parents opposed the apnoea stage of the nationally approved seven-step test, relying on concerns about further brain injury, reliability, and alternative investigations. An independent expert and the child’s Guardian supported the proposed testing. The central issue was whether all seven stages of the formal test should take place.

The application was granted. The court made a specific issue order under section 8 of the Children Act 1989 and declared that formal brain-stem testing was lawful and in Archie’s best interests.

1. The court accepted the evidence of the independent expert that the nationally approved Code of Practice provided a reliable method for determining brain-stem death. The procedure comprised seven sequential steps, repeated after about an hour, with the apnoea test as the final step.

2. The apnoea test involved temporarily stopping mechanical ventilation while continuing to supply oxygen through the windpipe. Carbon dioxide would rise in a controlled manner to stimulate respiratory effort. Oxygen levels would be monitored and the test abandoned if they fell below 85%.

3. The risks were significant in physiological terms but, for a child without relevant pre-existing heart or lung disease and tested under the updated Code of Practice, the risks of serious or lasting complications were very small. The informal two-minute test had produced no material adverse effect and provided a positive indication for formal testing.

4. Evidence from American medical articles and newspaper reports did not undermine the safety or reliability of the proposed test. The material concerned different or outdated protocols, adults, traumatic brain injury, or circumstances not comparable with Archie’s global hypoxic-ischaemic injury.

5. Further surgery, radiological investigations, or alternative tests were not in Archie’s best interests. Moving him to another department created risks greater than those associated with the formal apnoea test.

6. The benefits of determining formally whether Archie was alive or dead, thereby informing his family and treating clinicians about the next steps, clearly outweighed the very small risks of the procedure. The test was therefore in his best interests.

The judgment records that the application was first considered by Roberts J on 28 April 2022, when Archie was joined as a party and a Guardian appointed. A further directions hearing took place before Morgan J on 4 May 2022. The substantive application was determined at first instance by Mrs Justice Arbuthnot.