Generally coroners will not be involved in a case until the fact of death is clear (advance consultation in organ donation cases perhaps being the notable exception). But for those rare times when there may be a dispute about whether a death has or has not yet occurred, so as to trigger the coroner’s jurisdiction, Mr Justice Peel has provided helpful guidance on this area of law and how an application for a declaration of death might be made.
Background
In G’s tragic case a 36 year old woman had ingested a lethal dose of ethylene glycol around 14 hours before she was brought into hospital on 14 April 2024. Her Glasgow Coma Scale score on arrival showed a level of consciousness of 4 (one above the scale’s minimum) her cardiac rhythm was unstable, and she was having seizures. Full multi-organ support in the hospital ICU on a ventilator, sadly, could not prevent or reverse her profound brain injury.
The following day her pupils were fixed and dilated and on 16 April there were noted to be no reflexes present. The clinical view at that stage was that G was dead. On 18 April 2024, an electroencephalogram showed no electrical activity in the brain. A further CT head scan showed complete loss of grey-white matter differentiation. All neurological criteria clearly pointed to diagnosis of death. The next day comprehensive brain stem testing as set out in the Academy of Medical Royal Colleges’ 2008 ‘Code of Practice for the Diagnosis and Confirmation of Death’ suggested she had died, however her high oxygen requirements had precluded carrying out one part of a formal brain stem testing procedure, the apnoea test.
The universal clinical view was that G had irreversible cessation of brain stem function, a permanent absence of consciousness and an irreversible loss of capacity to breathe independently. Continuation ICU treatment was now simply maintaining her organs, but was not preserving her life. However, her mother did not accept the results, wanting more time for her daughter to recover.
The apnoea testing was eventually conducted on 15 May 2024 and, as anticipated, confirmed brain stem death. That formal brain stem testing was repeated and confirmed by a second doctor, as the guidance proposes. G’s time of death was then recorded as being 1:30pm on 15 May 2024.
When G’s mother did not accept the position the NHS Trust brought the matter before a High Court Family Division judge, seeking a ‘declaration of death’ and proposing that the mechanical organ support should be withdrawn within 24 to 48 hours, allowing the family time to prepare and visit G and, if they wish, be present at the withdrawal.
The decision
Peel J considered the case noting G’s mother’s grief and bewilderment and that her position was “understandable but sadly futile”. In the judge’s view the evidence was clear. Nothing suggested that (i) the brain stem tests were not carried out in accordance with proper procedure, or (ii) the conclusions of the brain stem tests were wrong or (iii) there was the slightest doubt that G was, in neurological terms and by reference to the brain stem testing criteria, dead. The declaration sought would be made.
The definition of death
In his judgment Peel J helpfully reminds us of the principles to be drawn from existing cases:
- There is no statutory definition of death;
- In Bland[1] the House of Lords accepted the validity of a medical diagnosis of death arising from an irreversible absence of brain stem function. when Lord Keith stated:
“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”;
- The rationale for the absence of brain stem reflexes being the criterion 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)”;
- The clinical definition of death in s.2 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.”;
- 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 remains the subject of a dispute the case is to be decided in the Family Division under the inherent jurisdiction of the High Court;
- In those circumstances, if there is a dispute about death, the narrow (but vital) issue for the court is whether the person has died;
- 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);
- If, by contrast, the court determines and declares that the subject is dead, the question of best interests is not relevant.[2] The court can proceed to make a declaration of death, and that withdrawal of medical intervention is lawful.
Procedural guidance
Drawing on guidance from an earlier case[3] the judge also set out the procedure to follow when these heart rending cases need to be brought to court (making it clear that the burden falls squarely on the NHS Trust who have care of the patient to bring the matter before a judge promptly):
- It is for doctors to diagnose and confirm death by brain stem testing carried out in accordance with the 2008 Code of Practice. In the circumstances, applications to the court concerning diagnosis and confirmation of death should be the exception;
- Where there is a dispute about whether brain stem testing is in the patient’s best interests, the applicant Trust should make an application to the Court of Protection under s.16 Mental Capacity Act 2005 for patients over 16 (and to the Family Division where the patient is under 16). In the Court of Protection, the Official Solicitor will, act as litigation friend on the issue of whether it is in the patient’s best interests for brain stem testing to take place.
- Where brain stem testing has been completed and there is no agreement between treating clinicians and family members with respect to the course of action consequent upon the diagnosis and confirmation of death, the Trust should make an application to the Family Division under part 8 of the Civil Procedure Rules (CPR 8.1(2)) seeking the court’s decision. The Part 8 procedure (which coroners will, be familiar with from applications under s.13 Coroners Act 1988) is appropriate where there is “a question which is unlikely to involve a substantial dispute of fact”;
- 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;
- The patient will usually not be joined as a party, and so the issue of appointing a suitable litigation friend will not ordinarily arise;
- The claimant NHS Trust should file witness evidence with the claim form.[4] Ordinarily this will be one or more statements from clinicians giving evidence of the brain stem testing done;
- Where an application is made, the narrow issue for the court to determine is whether the patient has died, requiring the court to consider the results of the brain stem testing undertaken and ascertain whether the tests were undertaken in accordance with the 2008 Code of Practice;
- The rules require an acknowledgment of service by the defendant within 14 days of service of the claim form[5]which should be accompanied by any written evidence upon which the defendant seeks to rely[6]. However the strict application of these rules is unlikely to be appropriate, save in respect of the obligation on the Trust to initially file evidence with the claim form as “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 is 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.[7]
Commentary
In most cases coroners will have no part to play in seeking a declaration of death. The burden is squarely upon the NHS Trust to make any application. Indeed the judgment gives us no clue as to whether this matter was reported to the Coroner on 16 April 2024, which was the day the clinical team arrived at their view that G had probably died.
Whilst a coroner would be wise to stand back from the clinical and legal dispute over whether a death has occurred, notice of a dead body lying in their area triggers the coroner’s s.1(2) CJA duty to investigate. An investigation and inquest is inevitable in this case, given that ingestion of a poison appears to have led to G’s death. Six weeks on important evidence may not have been preserved if there had been no notification given to the coroner.
Unusually here, Peel J appears to have made the requested declaration in an active voice rather than using the passive voice. The judgement records: “I am satisfied that the Trust has established its case that G died at 13.30 on 15 May 2024. I shall so declare”.[8]
Had G not died until the judge said she had? Bearing in mind that the degree of certainty needed for any coronial determination is the civil standard, and that the apparently unanimous clinical opinion was that G had probably died by 16 April 2024, should that then be the date of death recorded at her inquest? Does brain stem testing do no more than confirm that a death has already happened at an earlier point? Was G alive or dead between 16 April and 15 May?
It may have better reflected reality to have declared “that G had died by 13.30 on 15 May 2024”. However, arguably, given that a binding legal declaration as to the precise date and time of G’s death has now been made by the High Court, it is not for a coroner to find any differently.
Footnotes
[1] Airedale NHS v Bland [1993] AC 789 p.856
[2] Re M (Declaration of Death of Child) [2020] EWCA Civ 164 at §24
[3] St George’s University Hospitals NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam)
[4] CPR 8.5(1)
[5] CPR 8.3(1)(a)
[6] CPR 8.5(3). There are also provisions for the claimant to file evidence in reply under CPR 8.5(6).
[7] The judge noted that this will of course all depend on the facts of the case. He did not suggest that an expedited hearing would always be appropriate, although it was likely to be so where there was no realistic basis advanced for challenging the testing procedures or conclusions.
[8] At §29 of the judgment.