Alex RKUniversity Hospitals Bristol and Weston NHS Foundation v The Mother of G [2024] EWHC 1288 (Fam) adds to the small but growing body of case-law on the practice and procedure surrounding applications for declarations of death. From the previous authorities, Peel J derived the following principles:
i) There is no statutory definition of death.
ii) In Airedale NHS v Bland [1993] AC 789 the House of Lords accepted the validity of a medical diagnosis of death arising from an irreversible absence of brain stem function. As Lord Keith stated at p.856:
“In the eyes of the medical world and of the law a person is not clinically dead so long as the brain stem retains its function”.
iii) The rationale for the absence of brain stem reflexes being the criteria for death is explained in Appendix 5 of the Code of Practice:
“The brain stem controls all the essential functions that keep us alive, most importantly our consciousness/awareness, our ability to breathe and the regulation of our heart and blood pressure. Once the brain stem has died it cannot recover and no treatment can reverse this. Inevitably the heart will stop beating; even if breathing is supported by a machine (ventilator)”.
iv) The clinical definition of death in s2 of the Code of Practice is as follows:
“Death entails the irreversible loss of those essential characteristics which are necessary to the existence of a living human person and, thus, the definition of death should be regarded as the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe. This may be secondary to a wide range of underlying problems in the body, for example, cardiac arrest”; and
“The irreversible cessation of brain stem function whether induced by intra-cranial events or the result of extra-cranial phenomena, such as hypoxia, will produce this clinical state and therefore irreversible cessation of the integrative function of the brain stem equates with the death of the individual and allows the medical practitioner to diagnose death.”
v) Once brain stem testing has been administered, and where that test has indicated that a person has died by reference to the criteria set out in the 2008 Code of Practice, if that outcome is the subject of a dispute the case becomes one to be decided in the Family Division under the inherent jurisdiction of the High Court.
vi) In those circumstances, if there is a dispute about death, the narrow (but vital) issue for the court is whether the person has died.
vii) If the court determines that the subject of the application is not brain stem dead, then it will proceed to a best interests decision either in the Court of Protection (for an adult who lacks capacity) or in the Family Division (for a child).
viii) If, by contrast, the court determines and declares that the subject is dead, the question of best interests is not relevant (Re M (Declaration of Death of Child) [2020] EWCA Civ 164 at para 24). The court can proceed to make a declaration of death, and that withdrawal of medical intervention is lawful.
ix) The standard of proof in determining whether the subject of the application is dead is on the ordinary civil basis: para 30 of St George’s Hospital NHS Foundation Trust v Andy Casey and others [2023] EWCA Civ 1092.
Peel J also added his own observations to those of MacDonald J in St George’s University Hospitals NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam) about the procedure to be adopted:
i) The application (or claim) is brought under the Part 8 procedure set out in the Civil Procedure Rules where the claimant (usually the Hospital Trust) seeks the court’s decision “on a question which is unlikely to involve a substantial dispute of fact” (CPR 8.1(2).
ii) Usually, where brain stem testing has been carried out, there will be no substantial dispute of fact. Hence, the Part 8 procedure is appropriate for cases of this nature.
iii) Under the rules, the claimant must file witness evidence with the claim form (CPR 8.5(1). In cases of this nature, that will ordinarily be one or more statements from clinicians. It is hard to conceive of any good reason why witness evidence should not be filed in accordance with this rule to set out the procedure and conclusions of the brain stem testing; after all, the case must be proved by the claimant.
iv) The rules also provide for an acknowledgment of service by the defendant within 14 days of service of the claim form (CPR 8.3(1)(a)), which should be accompanied by any written evidence upon which the defendant seeks to rely (CPR 8.5(3). There are then provisions for the claimant to file evidence in reply (CPR 8.5(6)).
v) In my judgment, the strict application of these rules is unlikely to be appropriate, save, as I have suggested at iii) above, in respect of the obligation on the Hospital Trust to file evidence with the claim form. Applications for declarations of death by reason of brain stem testing are usually urgent in the sense that it is unreasonable to wait any length of time for determination of such sensitive matters. Absent legitimate reasons for questioning the validity of the tests and their conclusions, the court is likely to feel able to proceed to an expedited hearing, with a foreshortened timetable, requiring the defendant’s evidence to be produced in very short order, or perhaps dispensing with the need for formal evidence from the defendant altogether. This seems to me to be legitimate, and consistent with the overriding objective in Part 1 of the CPR, in circumstances where the evidence in respect of brain stem testing is, or appears to be, incontrovertible. It will, however, all depend on the facts of the case. I do not for one moment suggest that an expedited hearing will always be appropriate, but in my view it is likely to be so where there is no realistic basis advanced for challenging the testing procedures or conclusions.
Applying these principles to the case before him, Peel J had no hesitation in making a declaration (pursuant to the inherent jurisdiction of the High Court) that the 36 year old woman in question, G, was dead. Some of her family wished her to be given more time; her mother also set out a challenge (not further particularised in the judgment) to the validity of the Academy of Medical Royal Sciences’ Code of Practice for the Diagnosis and Confirmation of Death. However, Peel J considered that there was:
no purpose in further adjourning the case, and it is appropriate to proceed to a conclusion, dispensing, so far as necessary, with the provisions of Part 8. There is no relevant gap in the evidence which needs filling. The brain stem tests were carried out in accordance with the Code of Practice and there is nothing to suggest that any further inquiry would reach a different conclusion. To allow more time in the hope of a miracle has no clinical justification. The family’s wish to retain a vestige of hope is beyond reproach, but it has no clinical or other foundation.
Comment
Not referred to in the judgment, but to be noted, is that the Code of Practice is under review, with a revised version due to be published for consultation in the near future at the time of writing (June 2024). The basis of the challenge to the Code is not set out in the judgment, but it is clear that Peel J, as with the judges before him, was content to proceed on the basis that the Code, containing as it does a clinical definition of death, was appropriate. For those who want to know more about the dialogue between the courts and the clinicians here, I strongly recommend The Medico-Legal Development of Neurological Death in the UK by Kartina A Choong, which I reviewed here.
One point of note about the judgment is that, unlike the case of Andy Casey, the question of ‘consent’ to the carrying out brain stem death testing did not arise. In Andy Casey’s case, the Trust appeared to consider that it required such consent (a point discussed in the pages of the Journal of Medical Ethics here). Here, it appears that the Trust carried out the tests confirming that G had died. Whilst the judgment does not descend into detail on this point, one hopes that this followed a suitably sensitive conversation with G’s family informing them what was going to happen, rather than a conversation seeking their ‘consent.’ It may be that the next iteration of the Code of Practice contains further detail about what form such a conversation should take. But for the reasons set out here, I would hope that it does not suggest that it is a matter of consent.
