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Why courts have a place in policy debates

Globalisation means that an accountant in New York can get a minute-by-minute update of the worst few weeks in the life of a British family. The case of Archie Battersbee, a 12-year-old boy who has now died, has gripped media outlets the world over: his death was marked by a push notification from The New York Times.

The case has been covered extensively by English language media across the world. And that’s despite the medical details being not particularly complex or controversial.

The facts are these: on April 7, Archie suffered a catastrophic hypoxic ischemic brain injury. At no point after, according to all the medical evidence, did he regain awareness and had been in a coma for almost four months.

He showed no sign at all of being able to breathe without a ventilator and was kept alive thanks to medical technology and care filling in for his brain function.

Yet that medical technology and care, as Anthony Hayden, the presiding judge in his case, put it, “is a second-rate understudy for the main actor, ie, the brain itself”. 

His family disagreed: and as a result for the past four months fought in court to prevent the withdrawal of medical treatment for Archie supported by crowdfunding and the Christian Legal Centre, a private company.

In most cases, when a patient is found to have suffered brain death, treatment is withdrawn without recourse to a court, and without an accompanying international media circus. Neither English law nor medical ethics were going to be changed by the Battersbee case: the only issue at stake was when and how a young child would die.

As Hayden said, further treatment would have served “only to protract his death, whilst being unable to prolong his life”. It’s difficult to escape the suspicion that the blow-by-blow reporting of a dying 12-year-old’s final weeks had more to do with the human desire to gaze at someone else’s misfortune than a particularly pressing public interest.

But actually the Battersbee case does have important lessons for policymakers the world over. The case is ultimately one about belief: Archie’s mother believed that her son’s life could be saved. The Christian Legal Centre believed that supporting the case furthered their Christian mission, both in the case specifically and in reopening long-established English legal precedents about end-of-life care and patients’ rights.

Then you have the overwhelming medical evidence and the diagnosis of Archie’s doctors about how best to proceed. Now of course, patients can and should make decisions that are not in their best medical interests. Someone in their ninth decade may decide, for instance, that they prefer to be able to put their affairs in order and die at home rather than take the risk of chemotherapy. Or they might judge that actually their prospects of reaching the big 100 are worth rolling the dice on.

And it’s right too that family members should be able to contest decisions made by the authorities when the patient’s direct voice is unavoidably absent. Our beliefs about the world around us should be able to influence how we lobby politically, who we support in the courts and, indeed, the decisions we make about how we die.

Similarly, there is no clear line between “legal cases supported by outside groups which have the potential to trigger important changes in the law or expose wrongdoing” and “legal cases supported by outside groups with bad motives and an axe to grind” — unless, of course, you use “‘causes I personally support” as a heuristic.

A country in which a religiously motivated legal organisation could not support cases would be neither liberal nor democratic (though I’m not sure one in which such an organisation won many cases would be able to remain liberal or democratic either). And nor would a country in which the belief of a family has no place for redress be a particularly liberal one.

That absence of a clear line is one reason this case is a reminder of a neglected truth: that some disputes are better settled by courts, with politicians setting the rules of the road rather than seeking to intervene in each and every case.

When judicial power means that the most important thing elected governments do is appoint judges, things have gone wrong. But a polity in which the legal process cannot be used to carefully balance issues of rights, obligations and beliefs would be neither happy nor stable.

stephen.bush@ft.com

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