Archie Battersbee’s parents have vowed to take their battle to keep him alive to the Supreme Court after judges rejected their latest bid to prevent his life support being turned off at midday tomorrow.
‘If tomorrow’s the last day then so be it, but we will be applying to the Supreme Court,’ his mother, Hollie Dance announced today.
‘We made a promise to Archie, we will fight to the end. And Archie’s still fighting.’
The Court of Appeal today rejected a bid by the parents of Archie Battersbee to block the withdrawal of his life-sustaining treatment – meaning it is set to be switched off at midday tomorrow.
Judges ruled it was not in the 12-year-old’s best interests for him to remain on a hospital ventilator, but said his parents could still decide to take his case to the Supreme Court.
Archie’s case over the last four days
Friday – Hollie Dance and Paul Battersbee apply to the UN after exhausting all their options in the British courts. In response, the UN asks the government to keep Archie’s ventilator switched on until they had considered his case.
Sunday – The government’s legal department write an urgent matter on behalf of Health Secretary Steve Barclay asking the courts to urgently consider the committee’s request.
Today at 2pm – When Archie’s life support was due to be switched off before Barts NHS Trust agreed to wait for the result of today’s court hearing.
In its ruling, the Court of Appeal refused to postpone the withdrawal of Archie’s treatment beyond 12pm on Tuesday.
His parents Hollie Dance and Paul Battersbee made a last-ditch application to the United Nations (UN) Committee on the Rights of Persons with Disabilities last week after they had exhausted all their options in the British courts.
The youngster was due to have his life-support at the Royal London Hospital in east London ended at 2pm today, but the UN committee asked the UK government to prevent this from happening until it had considered his case.
The Government’s legal department then wrote an urgent letter on Sunday on behalf of Health Secretary Steve Barclay, asking the courts to urgently consider the committee’s request.
In its ruling today, appeal judges refused to prevent doctors from removing Archie’s life support but granted a short delay until midday tomorrow, at which point his ventilator can be switched off.
Archie’s parents will now ask Supreme Court justices to consider their application for permission to appeal directly.
Ms Dance said cutting off the life support – scheduled to happen at noon on Tuesday – would not be fair to her son.
She said: ‘I’ve got my son’s best interests at heart – Paul, and the siblings – nobody else has got Archie’s best interests at heart.
‘And I say, and I still stand by it, Archie’s best interests would be to allow that child time to recover. If he doesn’t recover he doesn’t recover, but give him time to recover.’
She added: ‘We continue to be shocked and traumatised by the brutality of the UK courts and the hospital Trust. Our wishes as parents continue to be trampled on and ignored.
‘We do not understand the urgency and rush to end life-support. The hospital Trust has at no point given us time to come to terms with what has happened. This is no way for a compassionate society to treat a family in our situation. We will continue to fight for Archie.’
She said that he has been ‘let down’ by Britain’s healthcare system.
‘We’re UK citizens but we can’t – we’re not looked after, we’re not protected, it’s a pretty sad state of affairs.
‘In this country there’s no options: it’s either Archie’s conscious or he dies, that’s it. In other countries there are so many options. You’ve got … stem cell treatment, you know, there are so many options available.
‘Over in the UK it’s … execution of your child and that’s it. It’s disgusting, it’s a let-down.’
Andrea Williams, chief executive of the Christian Legal Centre, which is supporting the family, said: ‘What Archie’s case has shown is that systematic reform is needed to protect the vulnerable and their families in end-of-life matters.
‘Legislation must be passed reforming the system. Archie’s case stands in the gap. The precedent his case sets can go an incredibly long way to fixing a system which has no room for error.
‘We will stand with them as they appeal to the Supreme Court.’
Earlier today, Ms Dance claimed that the family has had ‘no support whatsoever’ from Archie’s carers Barts Health NHS Trust.
‘I know they come across to the media as supportive and compassionate. It’s very much the opposite. It’s very misleading,’ she told Sky News.
Ms Dance said she was handed a letter on Saturday night outlining Archie’s ‘choreographed execution’. ‘There was no meeting, sat down and broken to gently,’ she said.
Archie, of Southend-On-Sea, Essex, suffered brain damage at home on April 7 and is in coma. Medics say he is ‘brain dead’
Doctors have been given permission to turn off Archie’s life support machine, but his parents are trying to continue the fight to keep him alive. Pictured is Archie in hospital
Paul Battersbee and Hollie Dance after the Court of Appeal refused to postpone the withdrawal of life-sustaining treatment from their 12-year-old, beyond midday tomorrow
The Christian Legal Centre said that it will stand by Archie’s parents as they fight in the Supreme Court
Earlier today, Ms Dance said the family has had ‘no support whatsoever’ from Archie’s carers Barts Health NHS Trust
In written submissions to the court, Edward Devereux QC, acting for Ms Dance and Mr Battersbee, argued the UN’s request to keep Archie’s ventilator turned on was ‘binding’ under international law.
He argued that any failure to abide by the committee’s request, made in accordance with the UN Convention on the Rights of People with Disabilities which was signed and ratified by the UK in 2008 and 2009, would amount to a ‘flagrant, egregious and unacceptable breach of international law’.
Mr Devereux asked the court to grant a stay to prevent the withdrawal of life-sustaining treatment until after the committee has had time to consider Archie’s case, but said he did not know how long that would take.
As an alternative, he asked the court to grant a stay within the next week to give time to seek more information from the committee as to the likely timescale for its decision.
But Sir Andrew McFarlane, sitting with Lady Justice King and Lord Justice Moylan, today rejected Mr Devereux’s argument.
He said today: ‘My decision is that, save for granting a short stay until 12 noon tomorrow, the parents’ application for any further stay is dismissed.’
The judge said the Convention on the Rights of Persons with Disabilities, which the UN committee based its request on, is an ‘unincorporated international treaty’.
He said: ‘It is not part of the law of the United Kingdom … and it is not appropriate for this court to apply an unincorporated international treaty into its decision-making process.’
He added: ‘Every day that (Archie) continues to be given life-sustaining treatment is contrary to his best interests and, so, a stay, even for a short time, is against his best interests.’
The judge said that was the decision that has been taken in the courts of England and Wales.
The court adjourned briefly to allow lawyers representing Archie’s parents to take instructions from them about a possible bid to ask the Supreme Court for permission to appeal against the decision.
Sir Andrew referred to the medical evidence before Mr Justice Hayden, who ruled on July 15 that Archie’s life-sustaining treatment should be withdrawn.
The judge said: ‘In short, his system, his organs and, ultimately, his heart are in the process of closing down. The options before the court have always been stark.’
Sir Andrew said the options before the courts on previous occasions were either that treatment was withdrawn immediately, resulting in Archie’s death a short while later, or the option favoured by his parents that he would die at some time in the coming weeks – in their words at a time ‘chosen by God’.
The letter from the NHS Trust to Archie’s parents, shared with MailOnline with their permission
The court adjourned briefly today to allow lawyers representing Archie’s parents to take instructions from them about a possible bid to ask the Supreme Court for permission to appeal against the decision
Bruno Quintavalle, also representing Archie’s parents at the hearing, said it is ‘very unfortunate’ that the Government has chosen not to play any part in the proceedings.
However, Fiona Paterson, representing Barts Health NHS Trust, said the Government has chosen ‘not to make submissions but instead effectively to seek the court’s guidance’.
She told the court there is a ‘commendable logic’ in that decision given that the court has all of the information necessary, having considered the case previously.
She said the UN committee’s request is not binding and added that the matter can be determined by the court and that no further participation of the Government is necessary.
Claire Watson QC, for Archie’s guardian – an independent adviser appointed to represent him – said there has been no change to the guardian’s view that, in light of the youngster’s ‘parlous’ condition, it is no longer in his best interests for treatment to continue.
Ms Watson also said, in written submissions, that there would be no breach of law by refusing the committee’s request, adding: ‘The UN committee’s request to the UK Government to refrain from withdrawing life-preserving medical treatment is purely a request.
‘The request is not enforceable and, if not acceded to, the consequences for the state party would be criticism and moral censure by the UN committee, and potentially wider international criticism for frustrating the function of the committee.’
In their letter Archie’s parents Ms Dance and Mr Battersbee plead with Health Secretary Steve Barclay to intervene to prevent the ‘extraordinary cruelty’ of ending their son’s life
Archie has not regained consciousness after he was found unresponsive with a ligature around his neck at his home in Southend, Essex on April 7. He is thought to have been taking part in a social media challenge
The trust wrote to the family over the weekend to inform them it intended to end treatment on Monday afternoon, but the Government then referred the UN’s request to the court for ‘urgent consideration’ on Sunday.
In its letter, the UN committee said it had ‘requested the state party to refrain from withdrawing life-preserving medical treatment, including mechanical ventilation and artificial nutrition and hydration’ from Archie while his case was under its consideration.
Archie’s parents are being supported by campaign organisation the Christian Legal Centre.
The trust previously said in a letter to Ms Dance and Mr Battersbee, who are separated but both live in Southend, Essex, that the withdrawal process will aim to ‘preserve Archie’s dignity’.
The trust said in the letter: ‘We understand that any discussions around the withdrawal of Archie’s treatment are very difficult and painful.
‘However, we want to ensure that you and your family are involved as much as you wish to be.’
It added: ‘You or any of the family may wish to lie on Archie’s bed with him or have him in your arms, if that should be practically possible.’
Archie with his mother Hollie Dance (left), brother Tom Summers and sister Lauren Summers
Ms Dance said this would amount to ‘extraordinary cruelty’ and a ‘flagrant breach of Archie’s rights as a disabled person’.
She said: ‘Archie is entitled to have the decisions about his life and death, taken by the NHS and UK courts, to be scrutinised by an international human rights body.
‘Hastening his death to prevent that would be completely unacceptable.’
Judges heard that Ms Dance found Archie unconscious with a ligature over his head on April 7, after she believes he took part in an online challenge.
Ms Dance today appealed to parents to make sure their children do not take part in dangerous viral challenges.
‘Please, please, parents, have the conversation with your children because I know there’s a whole new lot of online challenges,’ she said.
‘Please have these talks with your children because I think this seems to have been buried, you know, and I think it’s important.
‘I don’t want any parent out there to have what we’ve been going through and I definitely don’t want to see any more children losing their lives.’
Doctors believe Archie is brain-stem dead and say continued life-support treatment is not in his best interests.
A spokesman for the Department of Health and Social Care said: ‘We recognise this is an exceptionally difficult time for Archie Battersbee’s family and our thoughts are with them.
‘The Government asked the High Court to urgently consider the request from the UN Committee on the Rights of Persons with Disabilities.’
Alistair Chesser, chief medical officer for Barts Health NHS Trust, said: ‘Our heartfelt sympathies and condolences remain with Archie’s family at this difficult time.
‘We are following the direction of the courts, so no changes will be made to Archie’s care whilst the family appeal to the Supreme Court, though we will prepare to withdraw treatment after mid-day tomorrow unless directed otherwise.’
Is brain stem death the same as being in a vegetative state? And what are the chances of recovery?
Archie’s doctors insist he is ‘brain dead’.
This is different to a ‘vegetative state’ which happens after extensive brain damage, like that suffered by F1 racing legend Michael Schumacher in a catastrophic skiing accident in 2013.
It is permanent, meaning the affected person will never regain consciousness or start breathing on their own again. They are legally confirmed as dead, with the time on their death certificate logged when they fail a catalogue of tests.
The NHS says it can be ‘confusing’ because brain dead people can still have a beating heart and their chest will ‘rise and fall with every breath’. However, this is solely down to life support machines — not because the person has miraculously regained the ability to do this themselves.
Occasionally, the limbs and torso can move. But this is simply down to reflexes triggered by nerves in the spine that are not linked with the brain. It does not indicate that the brain is still working.
Archie was found with a ligature around his neck on April 7 and never regained consciousness. Doctors at the Royal London Hospital in Whitechapel, east London, believe he is ‘brain-stem dead’ but his parents are fighting to keep his mechanical ventilation
Whereas, it is scientifically possible for someone in a vegetative state to recover. This is because their brain stem, which controls breathing and heartbeat, still functions, meaning they may show signs of being awake — such as being able to open their eyes.
One year after going into a vegetative state, around 43 per cent will regain consciousness, 34 per cent die and 23 per cent are still vegetative.
However, those who wake up are often minimally conscious, unable to communicate and have to be fed through a tube.
Dozens of people claim to have beaten brain death in the past. Zack Dunlap, a 21-year-old from Oklahoma, told of how he heard doctors tell his family he was brain dead following a scan. But his arm moved while he was being prepared for organ donation. He later woke up, recovered and went home seven weeks later.
But the Neurocritical Care Society, a network of more than 2,000 healthcare workers, says it is impossible. Writing in an FAQ page, it said: ‘If anyone claims to have recovered from brain death, then the diagnosis was incorrect.’
The brain stem is located at the bottom of the brain and controls consciousness, awareness, breathing and the ability to regulate heart and blood pressure.
If damaged – through trauma in Archie’s case, or through bleeding, infections or tumours – it swells up but has no room to expand because it is encased inside the skull. This causes pressure to build up, leading to a drop in blood flow to the brain and damage to tissue.
This pressure and swelling pushes the brain through a small opening at the base of the skull, which can not always be stopped or reversed.
When the brain stem stops working, it cannot send messages to the body to control any functions and cannot receive messages back from the body. This damage is irreversible.
Six tests need to be met before a person can be declared as a brain stem death. These include the pupils not responding to light, having no cough or gag reflex and being unresponsive to pain.