Manchester University NHS Foundation Trust v Namiq & Anor

Where a patient satisfies the applicable death by neurological criteria, the court should determine whether death has occurred by applying the relevant clinical guidance. A best interests analysis is then inappropriate because there is no living patient whose interests require evaluation. The Trust bears the burden of proof, and the civil standard applies, but the evidence requires anxious scrutiny. The court may therefore determine the medical question on the evidence, including expert clinical evidence and properly conducted neurological tests. Residual cardiac, organ, spinal-reflex or other biological activity does not prevent a finding of death where the criteria establish irreversible loss of consciousness and the capacity to breathe.

The Trust sought declarations that Midrar Namiq lacked capacity to consent to or refuse mechanical ventilation and that it was lawful to withdraw ventilation. Midrar had suffered catastrophic hypoxic-ischaemic brain injury at birth and had undergone three death by neurological criteria tests, each indicating brain-stem death. His parents opposed withdrawal, relying on continuing cardiac and bodily function, observed movements, religious belief and alleged defects in the testing process.

The central issue was whether Midrar was dead under the applicable clinical guidance and, if so, whether the court should conduct a separate best interests assessment before granting the declarations.

1. Declarations granted. The court found that Midrar was brain-stem dead and met the applicable death by neurological criteria. It therefore declared that the Trust could withdraw mechanical ventilation. A separate best interests analysis was not required.
2. The relevant legal question was whether the clinical criteria were satisfied. There is no statutory definition of death, but the court adopted the approach in Re A (a child) [2015] EWHC 443 and found no material inconsistency with Oxford University NHS Trust v AB [2019] EWHC 3516. The 2008 Code and the 2015 Guidance supplied the applicable medical and legal criteria.
3. The Trust bore the burden of proof. The standard was the balance of probabilities, subject to anxious scrutiny because the decision concerned whether a patient was dead and whether ventilation could be withdrawn. If the court had a real doubt that the criteria were met, it would be unlikely to grant the declaration.
4. The three tests had been conducted by appropriately qualified clinicians and in accordance with the guidance. The evidence was clear, consistent and supported by the EEG and MRI findings. The alleged lack of parental consent did not invalidate the tests. The parents knew their purpose and their consent could be inferred; in any event, lack of consent would not make relevant evidence inadmissible on the factual question of death. Glass v UK concerned withdrawal of treatment and was materially different.
5. Continuing cardiac and organ function, growth, spinal reflexes and involuntary chest movements did not demonstrate consciousness or an ability to breathe independently. Such activity was consistent with brain-stem death under the clinical guidance.

The judgment was a first-instance decision in the High Court Family Division. The Trust’s application had previously been listed before MacDonald J for directions. An interlocutory application for permission to appeal concerning an adjournment was refused by Moylan LJ on 21 January 2020; the present judgment determined the substantive declarations.