[2006]
(App 19807/06), [2006] ECHR 1212:“the presumption of domestic law is strongly in favour of prolonging life where possible, which accords with the spirit of the Convention (see also its findings as to the compatibility of domestic law with Article 2 in Glass v. the United Kingdom, no. 61827/00, § 75, ECHR 2004-II).”40.In this context in Aintree University Hospitals NHS Foundation Trust v James (supra) at [22], per Baroness Hale highlighted the following, which seems to me to be particularly apposite in this case:“Hence the focus is on whether it is in the patient's best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”41.These sentiments were re-stated in An NHS Trust v Y [2018] UKSC 46 at [92], Lady Black delivering the judgment of the court stated:“Permeating the determination of the issue that arises in this case must be a full recognition of the value of human life, and of the respect in which it must be held. No life is to be relinquished easily.”42.Archie’s Guardian made the following observations both in her evidence and in her report: “Archie is a 12-year-old boy who was physically fit and well before his tragic accident. He is the youngest son of his parents. He has a loving family around him. Ms Dance spoke with me about Archie’s religious beliefs. She thinks that Archie would wish more time. He would not want to leave her.”43.She continued, if I may say so, with great sensitivity, to observe the following: “I have little doubt that if Archie could, he would find his way back to his mother and to his close and loving family. To the life that he so clearly enjoyed up to just a few months ago. But sadly, I do not think that possible. The clinical evidence provided regarding the prognosis is undisputed and overwhelming. He will not get better. I have given great thought to Archie’s wishes as reported by his family, and particularly with regard to his religious beliefs, but for the reasons highlighted above I do not consider that he could have in any way foreseen the circumstances where they are being relied upon now. Given what I have been told about him, I would expect him to find the restrictions of his current situation difficult to bear.”44.It is impossible, for all involved, not to feel the tragic contrast between Archie’s boundless energy and enthusiasm which has characterised his past life and his corroded ability to enjoy any aspect of it, either now or in the future. Archie’s highly experienced Guardian engaged with the challenging, but in my judgement, unavoidable obligation to evaluate his dignity in his present situation. She said this: “I was impressed with the care that I observed Archie receive from the nursing staff. I am pleased that Ms Dance reports her relationship to be “brilliant” with them. I certainly observed this brilliant relationship when I visited. Whilst I consider all those who care for and treat Archie to be doing so with the greatest of dignity and respect, I have to consider whether his life being sustained indefinitely, in light of the medical evidence would be dignified for Archie and in his best interests.I have outlined the benefits that Archie’s family derive from his life being supported in the way it is currently, however the medical evidence finds that for Archie improvement is not possible. Whilst receiving the highest level of love and care Archie is unlikely to be able to benefit from it and his life is characterised by intensive care with the many interventions and techniques that involves. Furthermore, there is an ever-present risk that Archie may experience a medical event requiring recovery procedures, or that the ability to provide him with the medical intervention his body needs is compromised. There is unfortunately no treatment possible to reverse the damage that has been caused to Archie’s brain following his awful accident.”45.Drawing together these conclusions led the Guardian to the view that it would not be in Archie’s best interests for treatment to continue. The Guardian is required, as I have been, to confront the appalling realities of Archie’s situation. There can be no hope at all of recovery. Archie’s mum, in particular, but the family more generally, recoil from this terrible reality. Nobody criticises them in any way for this. When it comes to evaluating the medical evidence, they have been ambushed by their emotions and overwhelmed by an intensity of grief that has compromised their objectivity. 46.This court has to ask itself whether continuation of ventilation in this case is in Archie’s best interests. It is with the most profound regret, but on the most compelling of evidence, that I am driven to conclude that it is not. Accordingly, the Court cannot authorise or declare lawful the continuation of this present treatment. It is obvious from the detail of the treatment that I have set out above that it is intrusive, burdensome and intensive. If there were even a possibility that it could achieve some improvement to Archie’s condition, it might be both proportionate and purposeful. Where, as here, the treatment is futile, it compromises Archie’s dignity, deprives him of his autonomy, and becomes wholly inimical to his welfare. It serves only to protract his death, whilst being unable to prolong his life. 47.Having come to this conclusion, there emerges the prospect of an end to Archie’s life, which reverberates more closely with the way he lived in the past. Arrangements can be made, with which I need not burden this judgment, that afford Archie the opportunity for him to die in peaceful circumstances and in the embrace of the family he loved.