London’s high court has heard the tragic case of 12-year-old Archie Battersbee, who suffered severe brain damage after an accident at his home in Southend, Essex, in early April.
There have been other cases where parents or family members have not accepted a medical diagnosis of brain death. In the UK, courts have always concluded that treatment should stop. However, one difference in Archie’s case is that the standard tests for brain death were not possible. The judge relied in part on a test (an MRI brain scan) that is not usually used.
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How death is determined
In the UK, there are no laws that say what death is or how it should be determined. Instead, the diagnosis of death is made by doctors based on a code of practice. It defines death as the irreversible loss of both the capacity for consciousness and the capacity to breathe. Doctors can diagnose a patient as having died either where the patient’s heartbeat and breathing have stopped, or where there is evidence of irreversible cessation of brain stem functioning.
The brain stem is an area at the junction of the brain and the spinal cord. It contains crucial nerve centres for controlling basic functions, including those that control breathing and awareness.
Patients can have severe brain damage without damage to the brain stem. But if the brain develops very severe swelling, parts of the upper brain can end up squashing and destroying the brain stem. Breathing machines in intensive care can sometimes keep the body going, even when this has happened. When doctors observed this in the 1960s (at the start of modern intensive care), that led to the recognition of the concept of “brain death”.
There are strict medical criteria that are used for testing patients in intensive care suspected of being brain dead. Those involve careful testing of reflexes that arise from the brain stem. But they also include rules and procedures to make sure that no conditions present might alter the results of brain stem tests. For example, the patient’s body temperature must be above 34℃. And they shouldn’t be receiving any medicines that would sedate them or stop them from moving.
Not diagnosed in the usual way
In Archie’s case, brain stem testing, according to the UK code of practice, was not possible because when he was tested with a “peripheral nerve stimulator”, his muscles did not respond.
The UK doctors who examined Archie could not diagnose brain death in the usual way. But the code of practice allows other tests to be used where standard testing is not possible. These extra tests may, for example, show that the blood supply to the brain has stopped (if there is no blood going to the brain, there is no possibility of brain function). Or they may show an absence of electrical activity.
In Archie’s case, he had repeated brain scans. On April 15, a magnetic resonance angiogram showed no blood flow in any of the blood vessels in the brain. This was also seen in a repeat CT scan of the brain on May 11 and in another MRI on May 31. The scans also showed visible evidence of necrosis (death) of part of the brain stem.
Electric tracings of the brain showed no activity on April 14 and 20.
There are two ethical questions that we might ask about cases like that of Archie. The first question is whether he is legally dead. Can we be confident that he has irreversibly lost the capacity for breathing and consciousness? That is the key question in the UK.
The rules set out by the code of practice in the UK allow for testing, including MRIs to be used in difficult cases. Extra tests all confirm the picture. He has suffered devastating brain damage, including very severe damage to his brain stem.
Even if life-support measures were continued, there is sadly no prospect of Archie regaining consciousness or the ability to breathe. He has been examined by several doctors and the evidence has been carefully evaluated in court. There is good reason to think that Archie has indeed died according to the UK code of practice.
But the second, perhaps more important, question is why it matters whether or not Archie is legally dead.
Although it can be incredibly difficult for family members to accept, and though they might wish the machines to keep going, in UK law, once a patient has been diagnosed as brain dead, there is no question of treatment continuing. So the significance of Archie being legally dead is that the dispute about treatment should end.
And even if the appeal court were to decide that Archie is technically still alive, that does not mean that treatment will continue as his parents wish.
Where there is disagreement about medical treatment for living children (or adults) with severe brain injury, there is a legal process for making decisions in the court based on their best interests. In Archie’s case, the judge had carefully considered Archie’s wishes as well as his parents’ views and the evidence that they had obtained from other experts.
In Archie’s best interests
The judge listened to evidence from several medical experts testifying to the devastating nature of his brain damage. She concluded that if he were alive, it would be in Archie’s best interests to stop the life support machines that are supporting him.
Although he is no longer capable of feeling pain (or indeed anything), she found that his body was suffering physical harm from the treatments he was needing to receive, that “his prospects of recovery are nil”, and that the burdens outweighed the benefits of continued treatment. The courts have reached similar conclusions in other cases.
The legal dispute over Archie’s care might continue for some time yet. However, just as there is no realistic prospect that he will recover, there is no likelihood that the appeal courts will reach a different decision. The conclusion for Archie, sadly, appears foregone.
Dominic Wilkinson receives funding from the Wellcome Trust.