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

Where brain stem death has been diagnosed and confirmed in accordance with the 2008 Code of Practice for the Diagnosis and Confirmation of Death, the legal question is whether the prescribed tests were properly carried out and establish death. Best interests are no longer relevant. In a disputed case, the Family Division may declare that the person died at the time brain stem function irreversibly ceased and may declare withdrawal of medical support lawful. Residual spinal reflexes, involuntary movements and ventilator artefacts do not displace a valid diagnosis. Applications concerning whether testing should be undertaken remain matters for the Court of Protection and are determined by reference to best interests.

The Trust issued a Part 8 claim under the inherent jurisdiction seeking declarations that Andy Casey had died after two sets of brain stem tests and that withdrawal of ventilation, medication and resuscitation would be lawful. Brain stem testing had been authorised earlier by the Court of Protection. Mr Casey’s family disputed the diagnosis, relying on observed movements and apparent breaths, and sought further expert evidence and testing. The court also considered whether Mr Casey needed to be joined as a party and whether the Official Solicitor could be appointed as his litigation friend.

1. Applicable legal framework. Brain stem testing is the legally accepted criterion for diagnosing death. The 2008 Code of Practice for the Diagnosis and Confirmation of Death defines death by the irreversible loss of the capacity for consciousness combined with the irreversible loss of the capacity to breathe. The court applied the seven prescribed clinical tests, which had been performed twice by appropriately qualified consultants and produced the same result.
2. Where testing is disputed before it occurs, the Court of Protection decides whether testing is in the person’s best interests. Once testing has been properly completed and has diagnosed and confirmed brain stem death, there is no further best-interests decision. The Family Division’s task is limited to deciding whether the person is dead by examining the test results and compliance with the Code.
3. Barts NHS Trust v Dance was distinguished. It concerned a case in which testing under the Code could not be undertaken and no diagnosis of death had been made. It did not alter the approach where testing had been completed and had diagnosed death.
4. The observed movements were consistent with recognised spinal reflexes and automatisms which can persist after brain stem death. Apparent ventilator-triggered breaths were artefacts caused by perturbations in the ventilator circuit and were not spontaneous respiration. The additional MRI, CT angiography, EEG and clinical observations supported the original diagnosis.
5. The court held that Mr Casey died at 11.51 pm on 16 July 2023. It declared that withdrawal of mechanical ventilation, extubation, cessation of medication and non-resuscitation were lawful. The earlier order purporting to appoint the Official Solicitor as litigation friend was ineffective without her agreement, and Mr Casey did not ordinarily need to be joined in proceedings of this narrow kind.

First-instance proceedings under the inherent jurisdiction of the High Court. The judgment records an earlier Court of Protection order authorising brain stem testing, but no appellate history for the present proceedings.