The parents of the British Archie Battersbee have the chance to transfer their son to a palliative care institution. After a turbulent legal dispute, the European Court of Human Rights decided not to get involved yesterday evening. Earlier this week, Martin Buijsen, Professor of Health Law at Erasmus School of Law, spoke about this in NOS Met het Oog op Morgen on Radio 1.
The twelve-year-old Archie suffered severe brain damage, which put him in a coma. The boy’s doctors wanted to stop his treatment, as Archie is brain-dead. However, Archie’s parents disagreed with them and went to court. The judgment was not in their favour; further treatment would not benefit Archie and, therefore, could be stopped. After the appeals court affirmed the decision, Archie’s parents called upon the UN Committee on the Rights of Persons with Disabilities. However, the appeals court decided not to consider the advice of this Committee. Therefore, Archie would be taken off life support on 2 August 2022. Archie’s parents went to the European Court of Human Rights as a last resort. However, the Court indicated it did not want to get involved in the dispute. The British Supreme Court has allowed Archie’s parents the time to apply to have their son transferred to a palliative care institution until noon this morning.
The tragic situation of Archie Battersbee and his parents, especially the cause, has had a major impact on British society. The boy probably took part in an online fainting challenge on TikTok. Archie may have taken a bad fall, causing serious brain damage. After four months in a coma, Archie’s doctors suggested he stop treatment now that he has been declared brain-dead.
Archie’s parents approached the UN Committee hoping to continue their son’s treatment. Buijsen explains that this committee monitors compliance with provisions of treaties that deal with the protection of the rights of people with disabilities. Buijsen: “That includes an optional protocol. If you accept that protocol as a State, then you can also empower that supervisory committee, which is familiar with every human rights treaty, to judge human rights violations based on complaints made by individual citizens.”
Buijsen points out that the opinion of this committee cannot simply override the ruling of British judges. "The committee makes recommendations on the applicability of treaty provisions in a specific case. The intention is that they [red. the British judges] do take that into account when making rulings," concludes the Health Law Professor.
However, the British court argues that the committee is not part of English law. “The English legal system is slightly different from the Dutch system”, Buijsen begins. “The Dutch judge would take the decision from such a committee seriously, I guess, be it that the Netherlands has not ratified the optional protocol and England has. It is up to the judges to decide how to deal with the ruling of such a UN Committee.” But ultimately, the committee can only make a recommendation. “And you can either accept that or not”, concludes Buijsen.
“The United Kingdom has a bit of a tradition when it comes to these kinds of conflicts”, Buijsen points out. “About five years ago, there was the Charlie Gard case. This was about a baby whose treatment was eventually deemed futile by doctors and was to be discontinued. The case was then brought before the European Court of Human Rights, where the parents were also unsuccessful. This was followed by the British Parfitt case, which received the same outcome in Strasbourg.
A full investigation by the UN Committee can take up to two years, says Buijsen. He names a similar French case, filed in 2019, in which a committee ruling is still pending. “That person has passed away, but the case is still ongoing.”
According to Buijsen, a recommendation from the UN committee following the discontinuation of Archie’s treatment will have no further effect on future decisions of the English judge. “The English judge has already indicated how the request was handled. Even if a matter like this is fully investigated - and that can take a year or two - you still come up with a recommendation. And that is what it is; a recommendation.”