Catholic Medical Quarterly Volume 72 (4) November 2022


Archie Battersbee and brain death criteria

The report of the Ethics Committee meeting in the August CMQ has clearly laid out the Catholic position on the understanding of death, with criteria for ‘brain death’ and harvesting of organs for transplantation.    

However, what I find disturbing about the Archie Battersbee case has been the media reporting relating to this case, particularly emphasising that the doctors and court’s opinion was that Archie is ‘highly likely’ (and other similar adjectives) ‘brain stem dead’. I find it equally discouraging, albeit based on the Mental Capacity Act and legal precedents, that the courts use the phrase ‘not in Archie’s best interests’ in determining their judgement.

However, the 48-page legal judgement by Mrs Justice Arbuthnot in the High Court on 13th June, the 11 page Appeal Court judgement on 6th July, and the 16 page judgement of the second High Court hearing by Mr Justice Hayden on 15th July are really helpful and revealing, as the medical facts and opinions are presented in great detail. The reason that there was uncertainty about brain stem death was that, based on legal precedent, the brain stem tests require that a precursor peripheral nerve stimulation test is done first. Archie did not react to these and therefore the doctors were unable to formally conduct the brain stem tests, as in the absence of a positive peripheral nerve stimulation test the brain stem would be invalid. This is clearly documented in the court papers so why did not the general media explain this? What is sad, is that whilst a patient is on a ventilator, the law will only permit a declaration of death to be made on the basis of a brain stem tests, which was the reason the appeal court rejected Justice Arbuthnot’s declaration of death based on the other medical evidence (see below), and ordered the High Court to reconsider using ‘best interests’ criteria.

The various scans, including angiograms, show evidence of global hypoxic damage to the brain with areas of frank necrosis (including in the medulla – ie brainstem) and atrophy, coning of the cerebellar tonsils through the foramen magnum, and crucially an MRA scan showed no blood flow through intracranial vessels. Medically this is clearly a non-recoverable injury. Archie was not just on a ventilator, but had pituitary failure etc requiring careful monitoring and appropriate pharmacology to maintain electrolyte balance, blood pressure and even bowel function.

Catholic moral principles clearly distinguish between ordinary and extraordinary treatment; furthermore, it is also not good medical practice to prolong the dying process and could be argued that neither is it good practice to continue providing futile medical treatment.

It is sad that the UK courts, relying on previous legal precedents, use the terminology ‘not in the patient’s best interests’ to base their judgements. This phrase has deliberately not been legally defined and so is open to interpretation; the judges have carefully considered all aspects including the futility of further treatment, but these have not been addressed in the media reports.

A final concern I have is with the hospital, with court backing, resisting the request to move Archie to a hospice to die, on the grounds that moving him would be risky as he might die in the transfer. It must be accepted that the instability of Archie’s condition made such a transfer risky, but I fail to see the logic that there might be a risk of him dying in the transfer (albeit on clinical grounds he is essentially already dead), when he definitely died on withdrawal of the treatment only a short time later! What is especially noteworthy is that the court based its rejection of the request to move Archie to a hospice on ‘best interest’ arguments and yet the initial Appeal Court judgement (6th July) noted that if a brain stem test could have been undertaken and had established ‘brain stem death’, then legally it would not have been possible to consider ‘best interest’ arguments as he would be already dead (para 6).

Fr Michael Jarmulowicz (Previously a Consultant Histopathologist)