The parents of a 12-year-old boy at the centre of a life-support treatment dispute have asked Court of Appeal judges to order a review hearing after a High Court judge concluded that the youngster was dead.
Mrs Justice Arbuthnot recently ruled that doctors could lawfully stop providing treatment to Archie Battersbee, after considering evidence at a trial in the Family Division of the High Court in London.
Lawyers representing Archie’s parents, Hollie Dance and Paul Battersbee, of Southend, Essex, on Wednesday argued that Mrs Justice Arbuthnot had made errors and said the case should be sent back to the High Court and reconsidered.
Edward Devereux QC, who is leading Archie’s parents’ legal team, told three appeal judges at a Court of Appeal hearing in London: “The case should be remitted for consideration by a High Court judge who should considerer whether it is in Archie’s best interests for life-sustaining treatment to continue.”
Doctors treating Archie at the Royal London Hospital in Whitechapel, east London, told Mrs Justice Arbuthnot how they thought that he was “brain-stem dead”.
They said treatment should end and Archie should be disconnected from a ventilator.
Archie’s parents say his heart is still beating and want treatment to continue.
Lawyers representing the Royal London Hospital’s governing trust, Barts Health NHS Trust, had asked Mrs Justice Arbuthnot to decide what moves were in Archie’s best interests.
Mrs Justice Arbuthnot concluded Archie was dead, and said treatment should end.
But she said there was a “compelling reason” why appeal judges should consider the case.
Mr Devereux had argued evidence had not shown “beyond reasonable doubt” that Archie was dead.
He said that decision had been made on a balance of probabilities – and argued a decision of such “gravity” should have been made on a “beyond reasonable doubt” basis.
Mrs Justice Arbuthnot decided that appeal judges should consider that standard of proof issue.
Appeal judges Sir Geoffrey Vos, the Master of the Rolls; Sir Andrew McFarlane, the president of the Family Division of the High Court and most senior family court judge in England and Wales; and Lady Justice King are expected to finish considering arguments late on Wednesday.
Mr Devereux argued that judges should apply a “standard of proof of beyond reasonable doubt”, not the balance of probabilities, when deciding whether to declare that Archie was dead.
“Medical practitioners, when certifying death, do not do so on the balance of probabilities,” he said, in a written case outline.
“Given the serious consequences, even of a criminal nature, of making a mistake, it would be unconscionable for any other standard but one conferring certainty to be adopted.
“The balance of probabilities simply does not provide the necessary certainty.”
He told the three judges that the parents’ appeal should be allowed and argued that another High Court hearing should be staged.
Archie suffered brain damage in an incident at home in early April.
Ms Dance said she found her son unconscious with a ligature over his head on April 7 and thinks he might have been taking part in an online challenge.
He has not regained consciousness.