Archie Battersbee - Thread 3

[BongoJim]

Follow on from previous full thread

www.mumsnet.com/talk/in_the_news/4596573-archie-battersebee-case-thread-2?page=1

I think the absolute last resort now will be the echr which will also fail but stall it a little more but ultimately I don't see Archie still being on life support by the end of the week. She's going to have to accept there just aren't any other avenues open to her.

Okay so this explains it a bit but I am still confused. If the preliminary test couldn't be done wouldn't that be an answer in itself?

Terrible analogy but wouldn't it be like saying you can't tell if a car works because it has no engine to test? The lack of engine surely answers the question.

Phos it's a very standard practice for children to be transferred to a hospice. I know many who have been and families spend time with the child and it's especially helpful for those who have younger siblings too.

There are children's hospices who have this specific facility and it doesn't affect care for those staying in the hospice.

Children a hospices are not the same as - for example - a Rowans hospice where my mum died.

Many children's hospices provide respite care for children with life limiting conditions and many will spend a week there every year for a decade or so.

The European Court of Human Rights do not look at the case again from the start. They cannot substitute their own decision in place of our domestic courts.

What they do is look at whether the law in this Country is compatible with the European Convention on Human Rights, and whether it has been interpreted with the Convention in mind.

If not, it can send it back to the domestic Courts with directions to do so.

However, the Gard and Evans cases have already been through the European human rights court (as quoted in the CoA Judgement in this matter) and the appeals were unsuccessful. It was found that our law and the way we deal with these sorts of cases (I.e looking at the child's best interests and keeping their interests paramount) are compatible with the convention.

Therefore any appeal would appear to be futile.

Sorry for the stupid question but given we have Brexited, why does the ECHR get an opinion?

Why isn't the Supreme Court's judgement of the Human Rights Act enough?

The ECHR isn't an institution of the EU

It's a council of Europe institution

https://en.m.wikipedia.org/wiki/EuropeanCourttofHumannRights

We are still a member state of the council of Europe.

www.togetherforshortlives.org.uk/app/uploads/2018/01/ProRes-A-Guide-To-End-Of-Life-Care.pdf

Thanks for explaining, @Crazycatlady83 , that's very helpful.

Because we are still a European country.

I know what you mean. It would seem a failing in the concept of the test for brain death if the test didn’t work on those who are “too dead”. I’ve asked about this on previous threads.

However, and I’m not a doctor, my understanding is that there may be reasons why the peripheral nerves do not respond other than brain death. So it doesn’t answer the question as to whether or not the patient is brain dead because there could be other explanations for the lack of response in the peripheral nerves, such as paralytic drugs in the system. I do not know how common it is for the test not to be possible for this reason.

The parents of the brain-damaged 12-year-old had said his treatment would be brought to an end on Wednesday morning after they lost a Supreme Court bid to keep it going.

But less than two hours later, his mother, Hollie Dance, said their legal team will be submitting an application to the European Court of Human Rights by 9am in another attempt to postpone the withdrawal of his life suppor

"Our solicitors will be filing to the European Court of Human Rights," she sai

"They've been given a strict timeline of 9am. Again, no time whatsoever. Every single court case we've had, we've had no time at all, one or two days to prepare and get the whole case together".

sky news

The resources issue is obviously an important point for funding of the NHS in general.

The costs of this case must be huge. Not only the medical side of treating Archie, but the legal fees, Doctors / Nurses time (when they are preparing statements, talking to lawyers and giving evidence, they can't be treating patients) and the resources (medications, equipment, blood transfusions etc)

Every £ that is spent on one patient can't be spent on another. Those saying Archie should be given more time (6 months, 12 months, 18 months - Hollie has never specified) would soon change their tune if their child, parent, friend was denied a operation because there wasn't a ITU bed, or treatment because there wasn't the funds.

It makes me worried that with the message that what Hollie is doing makes her a brilliant mum, "fighting like a tigress" and (I have frequently seen people say) they would do the same, incidents like Charlie Gard, Alfie Evans and Archie will become more common place (especially with the rise of social media) placing a massive burden on the NHS in general.

I watched a programme recently (Tiny Lives BBC) where families who had premature babies who had died were given a special room (like a normal bedroom), and a cold cot so they could spend a day or two with their child and just be with them. One young mum said 2 or 3 times that it wasn't like she had thought, and that it was so comforting to hold her child even though the little girl had died. She'd had a big bleed to the brain and the nurses and consultants told her gently that this was not compatible with life, that nothing else would help and so they would give palliative care.

I thought at the time, how far we have come in recognising the need of a parent to say goodbye after the bleeps and graphs and drama of life saving/preserving machinery has ended. Just some quiet time, and a neutral space to love and to grieve and to say goodbye. I guess these units have those rooms because they know some of the babies won't make it, very sadly, despite all the best care they are just so fragile (happily many more do make it home these days, than even 10 years ago). I think for any family saying goodbye, it would be comforting to have somewhere (that isn't a ward or a morgue to put it bluntly). I know the NHS is constrained by money, but just seems like another example of how we don't think about how to help the bereaved in better more human ways.

There are issues about after death care as well as the immediate issues of the case.

To all those who have had someone close to them die after being in ICU and to all those who work in them and support families the best they can

And, indeed, a signatory to the European Convention on Human Rights which created the court.

Sorry @prh47bridge you are correct. I should've said that I thought the link would explain

And, indeed, a signatory to the European Convention on Human Rights which established the court.

Oh dear...

Someone asked about the process for the European Court of Human rights.

According to This link
due to the current backlog, it can take up to a year for your case to even be seen.

So I think it’s fair to say that life support is never actually going to be withdrawn.

I don't know very much about the exact process, but the ECHR is not really an appeal court above our own Supreme Court. So, it would become a case by (probably) Archie Battersbee v United Kingdom. The argument in court would essentially be that the United Kingdom has infringed on Archie Battersbee's human rights through the way in which its law is written and/or its court processes have been applied.

ECHR case law on withdrawing life sustaining treatment is considered to be fairly settled since a French case (Lambert) in 2015. There is essentially a 3 part test that a country must satisfy.
(1) is there a regulatory and legal framework in place which is compatible with Article 2 of the Convention (the bit that gives a right to life)
(2) have the previously expressed wishes of the person concerned (ie Archie) been taken into account in the legal process, as well as medical opinions
(3) can the decision be appealed in the courts if there is any doubt about the best decision

The court also gives quite a lot of latitude to individual countries in applying the convention in these circumstances, as there are different approaches to end of life care in different European countries.

Given that the fundamental system used in England and Wales hasn't changed since either the Charlie Gard and Alfie Evans cases, parts (1) and (3) are essentially already passed by the UK. The only question would be about (2) taking into account Archie's wishes. And, the High Court and Supreme Court judgements are all clear that they have explicitly taken into account reports of Archie's previously expressed wishes.

Of course, it's possible that they may try a novel or unusual argument, based on a different part of the convention, or applying it differently.

However, most of the legal people I've seen commenting on this believe that the reason that this hasn't gone to the ECHR earlier in the process is that there is no realistic prospect of success.

In terms of timeline, in Charlie Gard's case 9 days passed between the Supreme Court decision and the ECHR decision. But there was an actual issue of law to resolve, as that involved an alternative treatment possibility, which so far hasn't been proposed in Archie Battersbee's case.

Apologies for the double post earlier.

With regards to the ECHR's backlog, I doubt it will take that long. In Charlie Gard's case, the application was declared inadmissible 8 days after it was submitted.

Thanks @limoncello23

DFA have posted that the hospital has refused the request for Archie to be move to a hospice.

The reason for the refusal is not stated.

The first appeal by Alfie Evans parents to the ECHR was also dismissed as inadmissible in 8 days. I can't immediately find a timeline for their second appeal to the ECHR, but Alfie died just 3 days after the Supreme Court had refused leave to appeal, suggesting that was even quicker.

However, most of the legal people I've seen commenting on this believe that the reason that this hasn't gone to the ECHR earlier in the process is that there is no realistic prospect of success. according to the link I posted upthread, the ECHR can only be approached once all other court processes in the country have been exhausted, so actually it’s not accurate to say they didn’t approach them earlier because it would have been futile.

While I agree it likely will be futile, they haven’t approached them earlier because they didn’t have the option to do so.

In terms of Charlie Gard, while the case was examined relatively quickly, there is no knowing whether that will still be the case here. Charlie Gard was in 2015 IIRC, so there have been a lot more applications since,and the ECHR currently has a large backlog.

And actually, as harsh as it is, this case is not going to be a priority for the ECHR, and that suits the CLC nicely, because they can likely say with certainty that life support will not be withdrawn.

@OpinionsUnseen @prh47bridge and I think the Alfie Evans case was even quicker, something like 3 days between the rejected Supreme Court appeal and the European Court's refusal.