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Judges in the Family Division and the Court of Protection are regularly asked to perform the unenviable task of balancing the pros and cons of continuing life-sustaining treatment. The Judge’s decision determines whether the person at the heart of those proceedings should live or die. As the Supreme Court confirmed in a number of appeals including those launched on behalf of both Charlie Gard and Alfie Evans, the Judge must apply the best interests tests in serious medical treatment cases. Thus, although the individual facts will frequently place a great burden on the Court, the legal test at least, is clear.  

In Manchester University NHSFT v Midrar Namiq (a minor) and others, [2020] EWHC 6 (Fam) Lieven J was asked to consider a different, but equally momentous issue – whether the child was in fact already dead.

The Trust argued that the Court’s function was to assess whether the relevant testing had established “on the balance of probabilities” that the child was brain stem dead. In contrast, the family’s representatives 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 the body should be removed.

The Judge summarised the history at [§3]:

  1. The facts of the case are tragic and one can only have the greatest sympathy for what the parents are going through. Midrar was born at full term, but his Mother’s membranes had ruptured on the way to hospital and there was a cord prolapse, which meant that oxygen was cut off to his brain. He had an undetectable heart rate and no respiratory output when born, his heart was restarted but he has been on a ventilator at the Neonatal Intensive Care Unit (NICU) since his birth. Three brain stem death tests dealing with death by neurological criteria (DNC) have been carried out, the first on 1 October 2019 and each has concluded that Midrar is brain stem dead. The Trust wishes to take him off the ventilator and allow his life to come to an end, whereas the parents wish him to remain on the ventilator.

Neither “DNC” nor “death by neurological criteria” are referred to in the Guidance. This was presumably presented to the Court by one of the witnesses as a term of art – anyone researching similar cases should look instead for references to the “clinical criteria”.

The Judge referred to the two relevant sets of guidance: First, “A Code of Practice for the Diagnosis and Confirmation of Death”, dated 2008 and produced by the Academy of Medical Royal Colleges AoMRC); this guidance does not apply to babies less than 2 months old and is supplemented by the second reference: “The diagnosis of death by neurological criteria in infants less than two months old” dated April 2015 and produced by the Royal College of Paediatrics and Child Health (RCPCH).

This post does not deal with the detail of that guidance which is set out helpfully within the judgment [§18-21]. For present purposes it is sufficient to note that the Court accepted (a) the requirement that the relevant testing be carried out on two separate occasions by the same two doctors; and (b) appropriate testing had been carried out confirming – on the balance of probabilities – that the child had suffered brain stem death.

Notwithstanding those conclusions, the family argued that the test should be whether or not removal of ventilation was in the child’s best interests. 

Although these cases are rare, identical issues were considered by Francis J in Oxford University NHS Trust v AB [2019] EWHC 3516 (Fam) and by Hayden J in re A [2015] EWHC 443 (Fam). In each of those cases the Court made its decision on the same basis that the Manchester Trust advocated in Midrar’s case. In other words, was the Court satisfied on the balance of probabilities that (a) the testing had been properly carried out; and (b) established brain stem death? 

The Judge’s approach has the benefit of good sense and logic. There can be no best interests assessment of a person who is no longer legally alive. The proper course was to apply the clinical criteria to establish the existence or confirm the absence of life. Best interests play no part in that assessment.

The Trust was represented by Neil Davy of Serjeants' Inn Chambers, instructed by Victoria Parker of Hill Dickinson LLP

In Oxford University Trust v AB, Michael Mylonas QC represented the Trust, instructed by Louise Wiltshire of DAC Beachcroft LLP