Barts Health NHS Trust v Holly Dance & Ors.

In determining whether to vary an order governing the withdrawal of life-sustaining treatment, the court must reconsider the patient’s best interests on the evidence of any material change since the original decision. Best interests are not confined to medical factors. They include the patient’s wishes and values, the family’s views, the benefits of the proposed arrangements, the risks of transfer and any delay.

Where the available evidence is sufficient, further expert evidence may properly be refused if it would cause delay contrary to the patient’s welfare. The management of palliative measures, such as oxygen, may be left to the treating clinical team. A variation application was refused because the proposed hospice transfer created major and unpredictable risks and the patient’s condition had become more fragile.

Following an earlier declaration that it was in Archie Battersbee’s best interests for life-sustaining treatment to be withdrawn at the Royal London Hospital, his parents applied urgently to vary the order so that withdrawal could take place at a hospice.

They also sought permission for further expert evidence, requested palliative oxygen, relied on alleged changes in Archie’s breathing, and raised possible treatment abroad. The NHS Trust and Children’s Guardian opposed the applications, principally because of the risks of transfer, delay and Archie’s deteriorating condition. The central issue was whether circumstances had changed sufficiently since the earlier best-interests determination to justify variation.

1. Application for expert evidence refused. The court applied the necessity test in rule 25.3 of the Family Procedure Rules 2010 and Practice Direction 25B. The treating intensivist’s evidence was detailed and current. The proposed expert largely accepted the medical and logistical difficulties, lacked detailed knowledge of Archie’s condition, had no direct clinical experience in this area for 14 years, and could not provide a reliable quantified risk. Further evidence would cause delay, potentially beyond the weekend, with the possibility of another hearing.
2. Best-interests assessment. Archie’s welfare remained paramount under section 1 of the Children Act 1989. The assessment was not limited to medical considerations. It required a balancing exercise addressing Archie’s personality, wishes and values, the wishes of his parents and wider family, the hospice’s facilities and support, the risks of transfer, the risk of dying in transit without his family, and the consequences of delay. The court accepted the treating specialist’s evidence that transfer involved major and unpredictable physiological, human, equipment and logistical risks. Archie’s increasingly fragile condition reinforced that conclusion.
3. Variation refused. Although the parents’ wishes and the hospice’s peaceful setting were important, they did not outweigh the transfer risks and delay. Archie’s best interests therefore remained as previously determined: withdrawal of treatment should take place at the hospital, with arrangements made for him to die peacefully and privately with his family.
4. Other applications. The question of palliative oxygen was left to the clinical team. The alleged signs of independent breathing were explained by ventilator sensitivity, condensation and bodily movement, and were unsupported by observed chest movement or clinical records. Treatment abroad was unsupported by sufficient detail and, on the available evidence, experimental treatment would be inappropriate without a full neurological assessment including brainstem testing.

• Earlier High Court proceedings: Arbuthnot J declared on 13 June 2022 that withdrawal of life-sustaining treatment was in Archie’s best interests. Following an appeal, the matter was remitted to Hayden J, who made a similar declaration on 15 July 2022 and directed that withdrawal take place at the hospital.
• Court of Appeal: Permission to appeal and subsequent applications for stays were refused or determined on 25 July and 1 August 2022: [2022] EWCA Civ 1055 and [2022] EWCA Civ 1105.
• Supreme Court: Permission to appeal was refused on 28 July and 2 August 2022. The present court refused the parents’ subsequent application to vary the location of withdrawal.