Tuesday 9 August 2022

Archie Battersbee - other thoughts ...

The previous post about the tragic Archie Battersbee case offers a basic overview of the legal process and also links to the various judgments and decisions taken - Law and Lawyers: A tragedy of immeasurable dimension - Archie Battersbee (obiterj.blogspot.com)

Barrister Blogger published an analysis of the case - Mr Justice Hayden was right to bring Archie’s futile treatment to an end. – BarristerBlogger and Joshua Rozenberg wrote Unforced errors by Archie’s lawyers - by Joshua Rozenberg.

The Rozenberg article attracted a comment by Edward Devereux QC who was leading counsel for Archie's parents (Hollie Dance and Paul Battersbee).  Advice given by lawyers

to their clients is covered by legal professional privilege and that privilege belongs to the client. Mr Devereux rightly revealed nothing about such advice but one paragraph in the comment stood out - 

"The legal team for the parents did all this without receiving any fee whatsoever (pro bono as we lawyers quaintly call it). They did it having to acknowledge at all times that Archie’s medical position was, as I have said, desperately bleak. They did it working to (in my view) wholly unreasonable deadlines (on a number of occasions mere hours) set by various orders of the courts. They did it while sensitively and realistically advising Archie’s family at a time when the family were in the throes of disbelief, anger, bewilderment, and grief."

This reveals the importance of pro bono (no fee) work done by many members of the Bar BUT it also reveals the dire state of access to justice in our country. I really wish that the media generally were more supportive of the need for improved legal aid for those unfortunate enough to have to litigate in our courts and tribunals. This is NOT about blank cheques for lawyers! It is about the basic rights and freedoms of all of us in what is supposed to be a democratic nation where the rule of law is important.

Devereux also referred to the various unreasonable times set by orders of the court. One can see that there was a degree of urgency about getting resolution to the central question of what was in the "best interests" of Archie. Obviously the NHS Trust and the medical staff required an answer. BUT was it so urgent that a somewhat longer time could not have been permitted for the parents and their lawyers to prepare and make the various applications? Would - say - another 24 hours or so have made a vast difference? 

Turning to a few other points.

1]. Mrs Justice Arbuthnot stated that a tragic accident occurred at Archie's home on 7 April 2022 when "when Archie aged 12 somehow hanged himself from the banisters using a dressing gown cord." 

Full details of HOW this happened have not been revealed but it appears that Archie may have been engaged in a challenge on social media referred to as "the blackout challenge." There have been several reports about such "challenges" - e.g.

TikTok blackout challenge warning: Fears after Archie Battersbee tragedy (hitc.com)

The infamous TikTok blackout challenge, explained | Digital Trends

An Online Safety Bill has been before Parliament for a considerable time. It is a lengthy Bill of 12 parts, 197 clauses, 15 Schedules and it attempts to impose duties of care on what are referred to as "regulated user-to-user" services and also to impose certain "Children's risk assessment duties" and safety duties protecting children. 

Legislators would do well to consider whether their convoluted Bill - (and it is not easy reading) - would actually address the type of challenge that Archie appears to have been engaged in.

Online Safety Bill: factsheet - GOV.UK (www.gov.uk)

Online Safety Bill - Parliamentary Bills - UK Parliament

2] On 3 August, the European Court of Human Rights issued a press release stating why it did not accept the request by Archie's parents for interim measures. The Press Release stated - 

"The Court (the President) today decided not to issue the interim measure sought. It also decided to declare the applicants’ complaints inadmissible. Having regard to all the material in its possession and in so far as it had jurisdiction to examine the allegations made, the Court considered that the conditions of admissibility provided for in Articles 34 and 35 of the Convention were not fulfilled. It further indicated that this decision did not constitute an acknowledgement by the Court that it, either in fact or in law, had jurisdiction to hear the case under Article 35 § 2 (b) of the Convention (which provides that the Court shall not deal with any application that is substantially the same as a matter that has already been submitted to another procedure of international investigation or settlement)."

This simply does not explain adequately why it was decided not to issue the interim measure sought but the E Ct HR gives States a considerable margin of appreciation in relation to decisions concerning life-sustaining treatment - see for example Guide to Article 2 (Right to Life) at paragraph 75. 

Having rejected the interim measure, the press release then stated - "It also decided ..." and went on  to refer to admissibility. 

It appears that the court considered that it did NOT have jurisdiction to accept the case because of Article 35. At least, Article 35 was clearly a factor. It might have been better for the court to clearly explain what impact Article 35 had on the case. Instead we are left with fudge. Would any future cases be ruled inadmissible if the UN Committee on the Rights of Persons with Disabilities had been approached? That certainly seems to be distinct possibility.

7 November 2022:

Archie Battersbee’s mother asks coroner to examine role of TikTok in death | TikTok | The Guardian

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