We have recently been advising NHS Trust clients in connection with disagreements between clinicians and family members over (a) whether or not to conduct brain stem death testing, and (b) the withdrawal of ventilation and treatment after testing has confirmed brain stem death. There have been two cases before the Family Division of the High Court in recent months which are worth drawing to your attention:
BN was a lady in her mid-forties who sadly suffered a severe haemorrhage, leaving her unresponsive and unable to breathe on her own. The Trust sought second opinions from two other trusts before carrying out brain stem testing in line with the 2008 Code of Practice for the Diagnosis and Confirmation of Death (the 2008 Code).
Those tests were carried out to completion and were concluded at 11.45 on 10 March 2022, and that, say the treating team, is the time and date of death - the doctors being satisfied that the tests demonstrated the irreversible cessation of brain-stem function. The 2008 Code confirms that: “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”. The tests were repeated some 45 minutes later which had exactly the same response.
The Trust made a Part 8 claim for a declaration that BN had died due to an irreversible absence of brain-stem functioning, and consequently sought permission for mechanical ventilation and all ancillary care and treatment to be withdrawn. The application was made as BN’s foster mother, PS, at that time, disagreed. By the end of the hearing PS was no longer opposing the declarations sought by the Trust.
The Judge concluded that: “I really have no alternative but to conclude that death has been diagnosed as 11.45 on 10 March 2022, and as submitted by [counsel for the applicant], that the testing was undertaken in accordance with the 2008 Code of Practice, and confirmed by second opinion, and that it is futile for the current care and treatment to continue.”
This case has been widely reported in the media and concerns Archie Battersbee, a 12-year-old boy who was found suspended by his neck in the family home following a tragic accident. On 26 April 2022, the Trust made two applications:
- A Specific Issue Order under section 8 of the Children Act 1989 that it was lawful for Archie to undergo brain stem testing in accordance with the 2008 Code, to establish whether or not he was brain stem dead as his parents had refused to give their consent to the tests; and
- A declaration that it was lawful to withdraw mechanical ventilation from Archie, which would result in his heart stopping beating.
Directions hearings took place on 26 April and 4 May 2022 and the case then came before Mrs Justice Arbuthnot on 12 and 13 May 2022. By that time, the Trust had decided to proceed with the first application only and an Order was made that Archie be subject to brain stem testing using the approved test as set out in the 2008 Code.
On 16 May 2022, Archie did not react to the peripheral nerve stimulation tests which were a precursor to the brain stem test, so brain stem testing could not go ahead. The Guardian made an application that Archie undergoes a further MRI scan of his brain and spine to show what had happened to Archie’s brain since the last MRI scan on 15 April 2022. This was opposed by his parents who were concerned about the risks to Archie but having heard evidence from 3 treating consultant clinicians, Mrs Justice Arbuthnot ordered that the MRI scan should go ahead.
The final hearing was listed for 6-8 June 2022. The Court heard from a Consultant Paediatric Neuroradiologist, Consultant Paediatric Neurologist and Consultant Paediatric Intensivist from the Trust , as well as the fiancé of Archie’s brother and Dr Shewmon, a Paediatric Neurologist from the US instructed by Archie’s parents.
Counsel for Archie’s parents argued that the Judge had to be sure ‘beyond reasonable doubt’ (ie the criminal standard of proof) that Archie was dead, rather than ‘on the balance of probabilities’ (i.e. the civil standard of proof). Counsel for the Trust and the Guardian both submitted that the civil standard of proof was correct, but the Court should apply anxious scrutiny to the evidence with which Mrs Justice Arbuthnot agreed and considered that the law was settled and clear.
Counsel for Archie’s parents also argued that brain stem death is not the definition the court should apply and that doing so would "extend the common law definition of death". Mrs Justice Arbuthnot disagreed citing Re M (Declaration of Death of Child)  EWCA Civ 164 (14 February 2020) which states that: “as a matter of law, it is the case that brain stem death is established as the legal criteria in the United Kingdom by the House of Lord's decision in Bland. It is not, therefore, open to this court to contemplate a different test.”
Mrs Justice Arbuthnot considered that “the lack of the [brain stem death] test in Archie's case caused as it is by his very severe brain damage, does not prevent me from anxiously considering the abundant clinical evidence in these proceedings and coming to a conclusion as to whether I can find on the balance of probabilities that Archie is brain stem dead” and tragically, on the balance of probabilities, Archie is dead. Permission was given to the medical professionals to cease ventilation, extubate Archie, cease the administration of medication and not attempt cardio or pulmonary resuscitation when cardiac output or respiratory effort ceased.
Despite making these declarations, and in deference to Archie’s parents’ views, Mrs Justice Arbuthnot went on to consider his best interests in the alternative stating that on balance, had she not made the declaration that Archie was dead, she would have found that it was not in his best interests to continue with medical treatment.
On 29 June 2022 the Court of Appeal gave Archie’s parents’ permission to appeal, on the basis that, without the conventional tests to establish death available, it would have been better if Mrs Justice Arbuthnot had approached the question of continuing life sustaining treatment as a matter of best interests, rather than declaring that Archie was, on the balance of probabilities, dead. The case was sent back to the High Court to make a fresh decision about Archie's best interests, which was considered by Mr Justice Hayden on 11 July 2022 and an outcome is awaited.
Cases of this nature are incredibly challenging for all involved and raise nuanced issues. It is therefore crucial that legal advice is obtained at the earliest opportunity so that disputes can be resolved swiftly. Please do contact us if you would like to discuss these issues further.