Namiq v Manchester University NHS Foundation Trust  [2020] EWCA (14.2.20) judgment summary here

Readers of this blogger's generation will already know that the answer to the Meaning of Life is 42.  The Court of Appeal have now addressed a question too momentous for even Douglas Adams to tackle - what is the meaning of death? [1]

Last month in Manchester University NHS FT v Midrar Namiq (a minor) and others, [2020] EWHC 6 (Fam) here Lieven J was asked to consider the heart-rending issue of whether ventilation should be withdrawn from a severely brain injured baby. (see our related blog here).

The Supreme Court had already confirmed in a number of appeals (including those launched on behalf of both Charlie Gard and Alfie Evans), that the Judge must apply the best interests tests in serious medical treatment cases.  However, here the Trust’s position was that the child was in fact already dead and that there can be no best interests assessment of a person who is no longer legally alive.   Hence, said the Trust, the Court’s function in Midrar’s case was to assess whether the relevant clinical testing had established that he was brain stem dead.   In contrast, in addition to arguing that the brain stem testing had not been properly carried out, Midrar’s parents argued that the Court’s role was to apply the best interests test to the question of whether the intensive care support that was still keeping oxygenated blood circulating his body should be removed.

One difficulty was that, despite clinicians and paramedics regularly declaring life to be extinct, there is no legal definition of death in any statute.  Death is clinically and not legally defined.  Although the common law position was considered in 1993 when the House of Lords reviewed the position of Tony Bland who had been in PVS for three years after being caught in the Hillsborough crush. Although Tony Bland had no consciousness his brain stem was still functioning, which controlled his heartbeat, breathing and digestion, and as such, said their Lordships, he was not dead.  Indeed, the medical consensus that death was to be diagnosed by an absence of brain stem function was expressly endorsed in Bland[2]

The Clinical Guidance

The relevant UK guidance, which provides clear and scientifically rigorous clinical criteria for confirming death is now found in ‘A Code of Practice for the Diagnosis and Confirmation of Death’, from the Academy of Medical Royal Colleges in 2008 (here).  In the code there are two overarching categories where death can be diagnosed:  following either cessation of cardiorespiratory function or the irreversible cessation of brain stem function.  For neonates the code is supplemented by further guidance on ‘The diagnosis of death by neurological criteria in infants less than two months old’ produced by the Royal College of Paediatrics and Child Health and accredited by NICE in 2015, (here). 

In Midrar’s case all clinicians who had examined him had unanimously concluded that he was brain stem dead within the UK guidelines.  The Judge accepted that the relevant clinical testing to establish death by neurological criteria (‘DNC’) had been appropriately carried out and that, on the balance of probabilities, Midrar had suffered brain stem death.

The judge further accepted the approach within the clinical guidance, that brain stem death established the irreversible loss of the capacity for consciousness and the irreversible loss of the ability to breathe, and that accordingly it was to be equated with death.

She held that as Midrar was clinically and legally dead, having already irreversibly lost whatever might be defined as life, his ‘best interests’ were no longer relevant when deciding whether or not to cease ventilation. 

    Death is equated with the irreversible loss of both the capacity for consciousness and the ability to breathe

Further expert evidence following the hearing

Following the judge’s decision the parents sought permission to appeal.  Whilst awaiting the appeal hearing they also instructed their own expert to review the child.  That expert (a Professor of Neonatology who was a co-author of the 2015 guidance) agreed with the treating clinicians that Midrar was brain stem dead, noting that the MRI scans showed “profound structural changes with liquefaction of large areas of the brain”.  The parent’s expert concluded that there was no clinical evidence to cast any doubt on the diagnosis and that further testing that was neither appropriate nor necessary.

The Court of Appeal hearing

On appeal the parents accepted that the definition of death should encompass the irreversible loss of the capacity for consciousness and the irreversible loss of the ability to breathe.  However, although they now accepted that the requirements for brain stem death testing under the UK code had been satisfied, they argued that in other jurisdictions the medical guidance and approach would require further testing beyond the UK code before death would be established (such as in the USA guidelines here). The parents argued, therefore, that it was in the patient’s best interests that, before coming to such a momentous conclusion as death, the courts here should not declare death in the absence of such further testing.

Essentially the parents were now seeking to challenge the adequacy of the UK code and its reliance upon DNC, a step which the President, LJ MacFarlane, observed went “beyond a challenge to the first instance judge’s decision and would require a small public inquiry”.   In any event, in the present case, testing going beyond the UK guidelines had in fact taken place.  Repeated MRI imaging had shown liquefaction of the brain stem, an apnoea test had been undertaken and an electroencephalogram (EEG) had been conducted for sixty minutes which also showed that Midrar had no cortical function.

The Court of Appeal determined that "as a matter of law" brain stem death was the legal criteria and it was not open to the Court of Appeal to contemplate a different test.  Lieven J was correct to identify death by applying the UK guidelines with the clinical tests therein.  Establishing whether or not the brain stem was dead would confirm the irreversible loss of the capacity for consciousness and the irreversible loss of the ability to breathe which was to be equated with the absence of life.  Best interests are, tragically, no longer relevant to that assessment.  The parent's case was unarguable and so permission to bring their appeal was refused.

Furthermore, it may be important for Coroners to note that although the brain stem testing must, in accordance with the guidance, be conducted twice,  the Court of Appeal considered that where DNC was confirmed then the date and time of death would be the date and time of the first test.

 

In summary, although the meaning of death is far more complicated than a two digit number, once the clear, scientifically rigorous criteria for confirming brain stem death or DNC in the guidelines have been properly applied the law will allow for only a binary answer.

 

Some factual matters included above and not within the judgment were taken from statements made in open court when your blogger attended this appeal hearing as part of the ‘Advanced Practitioner Programme’ at Serjeants’ Inn Chambers.

 

The NHS Trust was represented by Neil Davy of Serjeants’ Inn Chambers.

 

 

[1] Although I like to think that Douglas is somewhere bothering whoever is his God about this one right now.

[2] Airedale N.H.S. Trust v Bland [1993] A.C. 789. (See Lord Keith at page 856, Lord Goff at page 863 and Lord Browne-Wilkinson at page 878).