Barts Health NHS Trust v Hollie Dance & Ors.

Where the clinical testing required by the applicable medical code cannot be completed, and no medical witness has diagnosed death, the court should ordinarily proceed to determine the patient's best interests alone. Further medical investigations may be ordered to inform that assessment.

A best-interests decision requires a distinct and balanced evaluation of the child's welfare. The children's guardian must continue to advise on best interests unless and until the court declares the child dead. An assessment made after the proceedings have focused predominantly on whether death has occurred may need to be undertaken afresh.

A hospital trust sought a declaration that a 12-year-old child with a catastrophic hypoxic brain injury was brain stem dead or, alternatively, that continued mechanical ventilation was contrary to his best interests. The prescribed brain stem test could not be completed. Nevertheless, the High Court declared that the child had died and stated that, alternatively, treatment should cease.

The parents appealed. During the appeal, all parties accepted that it would have been better to proceed directly to a best-interests determination once the prescribed test could not be performed. The central questions became whether the High Court's alternative assessment could stand, whether the Court of Appeal could decide best interests itself, and whether a fresh guardian and first-instance determination were required.

1. The appeal was allowed on the sixth ground. Once the prescribed brain stem test could not be undertaken, the judge should, as a matter of good practice, have proceeded to determine the child's best interests alone. Further medical investigations could properly be ordered to inform that determination, but the simultaneous pursuit of a declaration of death and an alternative best-interests decision was inappropriate in the circumstances.

2. The medical code provided one basis for diagnosing death following irreversible cessation of brain stem function: irreversible loss of brain stem reflexes diagnosed through clinical neurological testing. No medical witness had diagnosed death without that testing, and no cited authority supported a judicial declaration of death in comparable circumstances. Although it was unnecessary formally to determine the challenge based on non-compliance with the code, the court strongly cautioned judges against declaring death outside it where no medical witness had diagnosed death.

3. The High Court's alternative best-interests assessment could not be upheld. The proceedings, evidence and submissions had focused predominantly on whether death had occurred. The judge had not obtained a dedicated assessment from the children's guardian or heard her oral evidence. Although the judge had properly given significant weight to the medical evidence, it was unreasonable to expect the parents to have confidence in a best-interests conclusion reached immediately after a finding that the child was dead.

4. The Court of Appeal could not perform the assessment itself. It lacked a complete and independent evaluation from a children's guardian. Until a declaration of death is made, the child remains a party and the guardian's duties under the Family Procedure Rules 2010 continue. Those duties include advising on the available options and filing a report on the child's interests unless otherwise directed.

5. The best-interests question was remitted to Hayden J for fresh determination. A new guardian was to provide an independent assessment. Permission to obtain an ethics expert or an expert in natural death was refused because such evidence would add nothing material to the expertise of the Family Division.

1. Court of Appeal (Civil Division): The appeal was allowed on the ground that the High Court had adopted the wrong approach to best interests. The issue was remitted to Hayden J for fresh determination with a new children's guardian: [2022] EWCA Civ 935.

2. High Court, Family Division: Arbuthnot J declared on 13 June 2022 that the child had died at noon on 31 May 2022 and permitted mechanical life support and medication to cease. She stated in the alternative that continued treatment would not have been in his best interests. No citation for that decision is stated in the judgment.