The “best interests” principle
Should a life be saved in order to prolong a death?
A little over four years ago, my mother had a medical crisis whilst in hospital. As this was well before Covid, my siblings and I were invited to visit – ahead of the normal visiting hours – for a conversation with the consultant handling her case. We arrived having talked amongst ourselves about what we believed our mother would have wanted and, after hearing the consultant explain the issues, we told him what we thought should happen.
His response was courteous but firm. The decision was ultimately for the hospital to make, but it was helpful to discuss it with the family first. (Or, at least, that is how I remember the conversation. The stress of the moment may have affected my recollection.) But it was all somewhat academic. First, because his approach exactly matched what we were sure our mother would have chosen. And, second, because when we walked with him, somewhat sombrely, onto the ward, we found our mother sitting up in bed, mobile phone in hand, leaving a voicemail for my sister requesting some more magazines to read.
Six months later, when a similar – and final – crisis occurred, everyone was ahead of the game. The doctors had already asked my mother how she wanted to be treated and her wishes were fully respected.
That first conversation (“the hospital would decide”) comes back to me whenever I hear about cases where doctors and family members disagree. I believe they are very rare, but they tend to hit the headlines when they arise. Especially, as has happened very recently, when the patient is a child.
The heartbroken parents of Archie Battersbee believe they have been denied their rights. A lawyer would say that, having had their case looked at by a bench full of judges – all the way up to the European Court of Human Rights and the Supreme Court (twice) – their rights have been fully protected. But perhaps that is to miss the point. Archie’s parents (presumably) believe that it is the law itself that is at fault, not the decisions handed down in their case.
The law in this area appears complicated. That makes it frustrating for those who want to understand. But it is, perhaps, reassuring that this is a subject that the courts recognise does not lend itself to easy answers. In fact, even the questions are not easy to identify. During the tragic Battersbee saga, we heard a lot about the best interests of young Archie, leading many, I think, to ask: “When can it be in the best interests of a patient to withhold treatment which will keep him alive?”
Put like that, the answer seems obvious: never.
But the Supreme Court decided in 2013 that that is the wrong question. In a case known as Aintree (after the hospital in the case), the court recognised that some life-sustaining treatment “has no therapeutic purpose of any kind” (see para 38). So the court asked: “when can it be in [the patient’s] best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?” (see para 1).
The court in Archie’s case had been told that life-sustaining treatment did not mean, simply, being on a ventilator. Far from it. There was a lengthy list of medical activities taking place to keep this young boy alive.
If the patient is capable of feeling pain or discomfort, it makes a huge difference to reformulate the question so that it focuses on the invasive treatment. But where do a patient’s best interests lie when they have permanently lost the ability to feel discomfort, for example as a result of brain death? I sense that, for many people, it is difficult to understand the thinking that led the Court of Appeal to conclude (see para 42) that “every day that [Archie] continues to be given life-sustaining treatment is contrary to his best interests.”
I, too, have struggled with this. My instinct was to keep the treatment going if one could be sure that Archie is incapable of feeling the discomfort it entails. But after some time for reflection, I started to find my instinctive thinking somewhat repugnant. Wasn’t I, in effect, denying him all sense of humanity? Were my thoughts not tantamount to saying: “do what you like, because he can’t feel it”? I started, slowly, to comprehend how a court might conclude that “life-sustaining treatment is contrary to [Archie’s] best interests.” Even the term “life-sustaining” is questionable: the Supreme Court agreed with the High Court judge who had concluded that the treatment “serve[d] only to protract his death”.
And then, just when this distressing sequence of events looked like it was coming to its tragic, but inevitable end, there was one further twist. Archie’s parents wanted to transport him to a hospice to experience the withdrawal of his treatment in a different environment. Once again, the hospital was opposed and the court agreed. Why? What could the court possibly have against a hospice managing the final stages of Archie’s life?
But, of course, the court – and the doctors – had nothing against the hospice. What they were opposed to was the ambulance journey which, in all likelihood, might never be completed. It wasn’t a simple choice between death in a hospital or death in a hospice. It was death in a hospital vs a real likelihood of death in an ambulance and only a possibility of death in the hospice.