BARTS HEALTH NHS TRUST v HOLLIE DANCE & Ors

Brain stem death is the legal criterion for death in the United Kingdom. Where the approved brain stem testing procedure cannot be completed because of the patient’s condition, the court may determine death from the totality of reliable clinical evidence. The burden lies on the applicant, and the civil standard applies, but the evidence requires anxious scrutiny.

If death is not established, the court must independently determine the child’s best interests. Welfare is considered in its widest sense, including medical, emotional, sensory, instinctive, social, psychological, religious and dignity-related considerations. There is a strong but rebuttable presumption in favour of preserving life. Treatment may nevertheless be withdrawn where its burdens and the patient’s condition outweigh any benefit and recovery is impossible.

Barts Health NHS Trust applied for declarations that Archie Battersbee, aged 12, had died by neurological criteria and that mechanical ventilation and associated treatment could lawfully cease. Archie’s parents opposed the applications and sought continued ventilation. Archie’s Guardian supported the Trust.

The approved brain stem death test had been attempted but could not be completed because Archie did not respond to preliminary peripheral nerve stimulation. The court therefore had to decide whether irreversible cessation of brain stem function could be established from the clinical evidence and MRI findings. In the alternative, the court considered whether continued ventilation was in Archie’s best interests.

1. The court was bound by the legal criterion of brain stem death established by Airedale NHS v Bland and confirmed in Re M (Declaration of Death of Child). It was not open to the court to adopt the United States whole-brain criterion or another legal definition of death.

2. The burden of proof lay on the Trust. The applicable standard was the balance of probabilities, not the criminal standard, but the court had to apply anxious scrutiny, particularly because the approved test could not be relied upon.

3. The inability to complete the Code of Practice test did not prevent a finding of death. The court could evaluate the abundant clinical evidence, including the mechanism of injury, prolonged unconsciousness, irreversible neurological damage, absence of intracranial blood flow, progressive necrosis and the MRI evidence. On that evidence, irreversible cessation of brain stem function was established and Archie was found to have died at noon on 31 May 2022.

4. The court therefore declared that Archie was dead and authorised the cessation of mechanical ventilation, extubation, cessation of medication and non-resuscitation when cardiac output or respiratory effort ceased.

5. Alternatively, applying the best-interests principles in Aintree University Hospital NHS Foundation Trust v James and the guidance summarised in In Manchester University NHS Foundation Trust v Fixsler & Ors, the court had to form its own objective judgment. Archie’s welfare was paramount and had to be considered in the widest sense. His parents’ and clinicians’ views were relevant, but their wishes did not determine the outcome.

6. The strong presumption in favour of preserving life was rebutted. Continued ventilation offered no prospect of recovery and imposed substantial burdens, including extensive medical intervention, gastrointestinal problems, difficult fluid management, weight loss and risks of sudden catastrophic deterioration. Those burdens outweighed the benefits of continuing treatment and Archie’s religious and family interests. Continued ventilation would therefore not have been in his best interests.