St George’s University Hospitals NHS Foundation Trust v Andy Casey & Ors

Brain stem death, correctly diagnosed under the applicable medical code of practice, is the proper indicator of death in law. On an application for a declaration of death, the court must nevertheless scrutinise all the evidence and is not confined to the results of brain stem testing.

Death is proved on the balance of probabilities, although the profound importance of the issue requires anxious scrutiny. Once the court accepts evidence of death following brain stem testing, best interests are no longer relevant. Further expert evidence is admissible only where reasonably required to determine the proceedings.

A hospital trust obtained a High Court declaration that a mechanically ventilated young man had died following irreversible cessation of brain stem function and that medical intervention could lawfully cease. Brain stem testing had diagnosed death, and extensive subsequent imaging and investigations supported that diagnosis.

His mother and siblings sought permission to appeal. They challenged the refusal of another expert, the absence of a litigation friend, the legal status of brain stem death, the use of the civil standard of proof and the absence of a best-interests assessment. The Court of Appeal considered whether any ground had a real prospect of success or whether another compelling reason justified an appeal.

1. Permission to appeal refused. None of the proposed grounds had a real prospect of success, and there was no other compelling reason for an appeal. The evidence of death was complete, reliable and compelling. The declaration of death was the only decision properly open to the judge.

2. The High Court properly refused permission to obtain another expert opinion. Under rule 35.1 of the Civil Procedure Rules 1998, expert evidence must be reasonably required to determine the proceedings. Exhaustive investigations and multiple internal and external opinions had already addressed the medical issues. No plausible evidential gap had been identified.

3. The absence of a litigation friend did not arguably invalidate the proceedings. The judge was entitled to conclude that the subject did not need to be joined because the evidence that he had died was exceptionally strong. The court must adapt its case-management decisions to the realities of the individual case. There was no serious procedural error, and the subject’s position had been fully protected by the investigations, family participation and the Official Solicitor’s involvement as Advocate to the Court.

4. Brain stem death, correctly diagnosed, is the proper indicator of death in the legal sense. That approach reflects a widely accepted national consensus extending over almost 50 years. On an application for a declaration of death, however, the court must consider all the evidence rather than confining itself to the initial brain stem tests. The possibility of error requires great care but does not render the accepted basis for determining death unsound.

5. The applicable standard of proof is the balance of probabilities. The gravity of the determination requires anxious scrutiny, which the High Court had provided. In any event, the evidence was sufficiently strong to satisfy any suggested standard.

6. Once the court has carefully scrutinised and accepted evidence of death following brain stem testing, there is no sensible basis for conducting a best-interests assessment. Best interests concern the treatment of the living. Where evidence of death is absent or fails to withstand scrutiny, the court may instead have to address best interests.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 1092, refused the mother’s and siblings’ applications for permission to appeal. It extended the mother’s time for applying, admitted one witness statement and refused to admit the remaining proposed fresh evidence.

2. High Court, Family Division: MacDonald J declared on 12 September 2023 that Andy Casey had died following irreversible cessation of brain stem function and that the Trust could lawfully cease medical intervention. No citation is stated in the judgment.