The courts and life-support cases: Archie Battersbee

The recent Archie Battersbee case has been in the news. (Archie Battersbee: How did life support battle end up in court? - BBC News)

There are two interesting thoughts here. The first relates to a theoretical aspect made by Lord Sumption in his Reith lectures. The second point relates to the shocking facts of the case as per the judgment.

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1. In Trials of the State by Lord Sumption questioned the efficacy of legal adjudication as a means of resolving essentially political or moral issues. Formerly, morality was confined to the autonomy of individual choice. But, nowadays, he argues that "we tend to regard social and moral values as belonging to the community as a whole, as matters for collective and not personal decision". 

He illustrated the point with reference to the Charlie Gard case. That case concerned a dispute between doctors and parents vis-a-vis the best interests of a gravely ill baby. The overarching point here is that by regarding the moral issue as a "collective" matter (notwithstanding the lack of harm to others in society), it renders it apt to being resolved via the public decision-making fora of the courts of law. 

The Children Act 1989 shifted the final decision as to the welfare of the child into the realm of institutional authorities (e.g. hospitals) on the basis of what was best for the child (as opposed to the parent). 

I think Lord Sumption's point was that this moral question has been usurped by the state with the consequence that the parental voice is legally qualified. In the Charlie Gard case, as Lord Sumption pointed out, the law did not grant parents the choice of pursuing medical treatment abroad.

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2. Having read Hayden J’s judgment (para 29-33); it seems to me that this poor child had already been dead for several months.

Arbuthnot J concluded that Archie’s brainstem, the part of the brain which regulates breathing (and other involuntary functions) was dead (para 85-95). In fact, it had turned necrotic which means that the cells were decaying. Once the brain stem is dead, there is no possibility of recovery. It’s not like a coma. Towards the end, even Archie's mother had resigned herself to this reality as she tried to get him moved to a hospice. However, it was thought he would die in transit. Hayden J described him as being so malnourished as incapable of food absorption.

It seems to me - even from the outset - that there was no real legal argument at all. It’s tantamount to a an abuse of a corpse.