M (Declaration of Death of Child)

Brain-stem death is the legal criterion of death in the United Kingdom. A court must determine on the balance of probabilities whether the medical criteria in the applicable professional code and guidance have been satisfied. Once brain-stem death is established, a best-interests assessment has no legal relevance because the patient has already died.

The court should declare the date and time of death expressly. It may then declare that withdrawal of ventilation and other clinical interventions is lawful. Appropriate reporting restrictions may protect treating clinicians where evidence demonstrates a real risk of harmful publicity, while openness can be maintained through publication of the court’s judgment.

A full-term baby suffered catastrophic hypoxic brain injury during birth. Three clinical assessments concluded that he satisfied the criteria for death by irreversible cessation of brain-stem function. MRI and EEG evidence confirmed extensive disintegration of brain tissue. His parents opposed withdrawal of ventilation and did not accept that he was dead.

The Family Division declared that the Trust could lawfully withdraw mechanical ventilation. The parents sought permission to appeal, challenging the diagnosis, the use of assessments allegedly conducted without consent, the refusal of an opportunity to obtain expert evidence, and a reporting restrictions order protecting hospital staff.

The principal question was whether the diagnosis made under the applicable neurological criteria was legally and evidentially sufficient, or whether the court should instead assume that the child remained alive and conduct a best-interests assessment.

1. Permission to appeal was refused unanimously on all five grounds. The House of Lords had established brain-stem death as the legal criterion of death in the United Kingdom. The Court of Appeal was bound by that authority and could not substitute a different test based on whole-brain death.

2. The court must decide on the balance of probabilities whether brain-stem death has been established through proper application of the 2008 Code of Practice and, for an infant of the relevant age, the 2015 paediatric guidance. Those instruments did not normally require ancillary investigations. The neurological assessments had been properly conducted, while the MRI and EEG evidence provided additional confirmation. The evidence permitted no conclusion other than that the child had died.

3. Once brain-stem death is established, a best-interests analysis is neither necessary nor appropriate. The court is not deciding that death would serve the patient’s interests; it is finding that the patient has already died. Even if best interests had been considered, continued ventilation could not benefit a person who had irreversibly lost consciousness and the capacity to breathe.

4. The objections concerning consent and expert evidence were unarguable. The parents knew the purpose of the assessments, consent could be inferred from their conduct, and a further assessment was performed at their request. Their chosen expert subsequently confirmed both the diagnosis and compliance with the applicable guidance. Any alleged lack of consent to earlier testing did not undermine the evidential conclusion.

5. The appropriate order should expressly declare that the individual died at a specified time and date. It may then declare that withdrawal of ventilation and other clinical interventions is lawful, thereby allowing dignity in death. The Family Division’s declaration was amended accordingly.

6. The reporting restrictions order was justified by evidence of specific untrue allegations against hospital staff and the contemporary capacity of social media to expose clinicians to serious pressure. Transparency could be maintained through the published judgments without identifying those responsible for the child’s care. The order was amended to expire 28 days after ventilation was withdrawn, subject to liberty to apply.

• Court of Appeal (Civil Division): Permission to appeal was refused unanimously on all five grounds. The declaration was amended to state the date and time of death and the lawfulness of withdrawing ventilation. The reporting restrictions order was made time-limited.
• Family Division: Lieven J found that the child satisfied the criteria for brain-stem death and declared that the NHS Trust could lawfully withdraw mechanical ventilation. No neutral citation for that decision is stated in the judgment.