NORTH WEST ANGLIA NHS FOUNDATION TRUST v BN

Death may be diagnosed where there is an irreversible loss of the capacity for consciousness together with an irreversible loss of the capacity to breathe. Irreversible cessation of brain-stem function is sufficient, even though some neurological activity or spinal reflex movement may remain.

Before brain-stem testing, reversible causes of coma and apnoea must be excluded and the prescribed physiological conditions maintained. The tests must be completed in accordance with the applicable medical guidance and independently confirmed. Once death is established, continued mechanical ventilation and other supportive treatment confer no therapeutic benefit and may lawfully be withdrawn.

The Trust brought a Part 8 claim concerning BN, who had suffered a catastrophic subarachnoid haemorrhage and remained wholly unresponsive and unable to breathe without mechanical ventilation. Two consultant doctors carried out repeated brain-stem and apnoea testing after the relevant preconditions had been satisfied.

BN’s foster-carer, PS, initially opposed the declaration sought by the Trust. The central issue was whether the medical evidence established death through irreversible cessation of brain-stem function and, consequently, whether continued ventilation and ancillary treatment could lawfully be withdrawn.

1. Declaration of death. The court declared that BN had died at 11.45 am on 10 March 2022. The evidence established irreversible cessation of brain-stem function, with permanent loss of consciousness and of the capacity to breathe.
2. Applicable standard. The 2008 Code of Practice for the Diagnosis and Confirmation of Death defines death by reference to the irreversible loss of essential characteristics necessary to the existence of a living human person. Irreversible cessation of brain-stem function equates with death. It is unnecessary for all neurological activity in the brain to cease. Residual neurological activity or spinal reflex movement does not demonstrate consciousness, perception, responsiveness or the ability to sustain respiration.
3. Testing requirements. Brain-stem testing must be undertaken only after sedation and muscular relaxation have ceased for the required period, reversible causes of coma and apnoea have been excluded, and the prescribed cardiovascular, respiratory and biochemical conditions have been maintained. The neurological tests and apnoea test must be completed in accordance with the Code and carried out and confirmed by two appropriately qualified doctors. The procedure was materially consistent with that described in [2020] EWCA Civ 164.
4. Application. The tests were completed twice, with identical results, and were supported by second opinions. No further testing could assist. Continued treatment was futile because it could not restore consciousness, unaided breathing or any perception or response.
5. Orders. The Trust was authorised to cease mechanical ventilation, extubate BN, stop medication and refrain from cardiopulmonary resuscitation when cardiac or respiratory output ceased. The clinicians’ specified actions and omissions were declared lawful. The hospital agreed to delay withdrawal until noon on 18 March 2022 to allow PS and her daughter to say farewell.