Catholic Medical Quarterly Volume 72 (4) November 2022


‘Equality of arms’ in complex medical cases that go to court

Dear Editor

The Archie Battersbee case raises a number of issues of which these are the most important.

When Health Trusts go to the courts the lack of legal aid available to the parents leaves them without what in law is called "equality of arms". In other words ,the parents are in an unequal situation in court facing the full weight of a legal team funded by a Health Trust as well as their expert witnesses. Some organisations do excellent work in supporting parents in these cases but we need to go further and give a right to legal aid. The Government is now proposing removing the means test for legal representation for parents involved in proceedings about the potential withdrawal or withholding of life-sustaining treatment for their child. We need to make sure that this happens.

There is, however, something deeper than this which was highlighted by Baroness Finlay in a House of Lords debate on March 16th 2022 on the Health and Social Care Bill. Speaking in the context of difficult cases like that of Archie Battersbee she referred to ‘the very real problem that relates to the power differential between a doctor and the parents of a sick child’.

She went on to say:

When parents are worried, they can come across as angry or difficult in their attempt to get information or get something done. All too often, they are labelled as overanxious. Yet, is it normal to be out of your mind with worry if your child, whom you adore, looks as if they might die

She went to say that:

When staff become aware of a difference of opinion, the clinicians need to listen to the parents, and others concerned with the child’s welfare, who may have important information to inform thinking.

Baroness Finlay therefore proposed that a new clause 164 be inserted in the Bill which would apply where there is a difference of opinion between a parent of a child with a life-limiting illness and a doctor responsible for the child’s treatment about the nature (or extent) of specialist palliative care that should be made available for the child. In either of these two cases the health authority would have a number of duties. These would include a requirement to ensure that the views of the parents, and of anyone else concerned with the welfare of the child, are listened to and taken into account; to make relevant medical data available to them; and to allow the provider of an alternative treatment that is being advocated by the parent to provide evidence. In addition there would be a duty to allow for a mediation process where the two parties were unable to resolve their difference of opinion.

These proposals would, had they become law, have taken a great deal of heat out of tragic situations such as those of Archie Battersbee and Charlie Gard and would have provided a sensible way of managing extremely difficult cases. However, although this amendment was passed by the House of Lords it failed in the Commons and instead the government inserted a somewhat anodyne clue into the Bill which has now become s.177 of the Act.

This merely states that

“The Secretary of State must arrange for the carrying out of a review into the causes of disputes between (on the one hand) persons with parental responsibility for a critically ill child and persons responsible for the provision of care or medical treatment for the child as part of the health service in England. In addition a report on the outcome of the review must be published within one year of the Act coming into force.”

Some hospital trusts do provide mediation facilities, one example is the one provided by the Evelina Mediation Service (Guy`s and St Thomas NHS Foundation Trust London) but Baroness Finlay’s proposal would have gone further and put mediation in end of life cases on a statutory footing. What we must do now is to press the government to expedite the promised review and not to lose sight of Baroness Finlay’s proposals.

Yours sincerely

Dr. A.P. Cole     Dr. J. G. Duddington