The recent ruling by the High Court requiring an NHS Trust to carry out tests to determine whether a 12-year-old boy was dead has again raised question about the legal definition and determination of death in England and Wales. The child suffered catastrophic brain damage after he was found in his bedroom with a ligature around his neck. The case was contested by his mother, who argued that he was alive and needed more time to respond to treatment (Howie and Framer, 2022).
Determining death
There is no statutory definition of death (Grubb, et al, 2010). Generally the Triad of Bichat, which defines death as the failure of the body as an integrated system associated with the irreversible loss of circulation, respiration and innervation, is used to determine if a person has died (Griffith and Tengnah, 2008). Advances in medicine and mechanical ventilation have led to situations, such as in this recent case, where circulation and respiration is maintained and the traditional method for determining death does not apply. Nevertheless, the administrative system for confirming death still relies heavily on the opinion of a doctor. Indeed the general approach of the law is best summed up by the then Chief Justice Lord Lane in the case of R v Malcherek & Steel [1981] who held that;
‘Where a medical practitioner, adopting methods which are generally accepted, comes bona fide and conscientiously to the conclusion that the patient is for practical purposes dead then the courts will accept that the patient is dead.
Lord Lane at 429
This approach to the determination of death has been applied to situations where the person's circulation and breathing is being artificially maintained but there is evidence that the brain stem has ceased to function. In Re A (1992) a child was admitted to hospital with serious injuries that led the doctors to agree that he was brain-stem dead. The High Court accepted evidence that the child was dead and the doctors would not be acting unlawfully if they disconnected the child from the ventilator.
The adoption of brain-stem death, as determined by doctors, as evidence that a person has died has led to several challenges in Court and questions of the reliability of the diagnosis as death of the brain stem did not equate to the death of the whole brain. In Re M (Declaration of the death of a child) [2020] the parents of a child found to have brain-stem death challenged the finding and argued that regard should be given to medical practice in other countries such as the USA that advocate diagnosis by whole brain death, rather than brain-stem death.
The Court of Appeal held that the judicial committee of the House of Lords had held in Airedale NHS Trust v Bland [1993] that death could be diagnosed by the absence of brain stem function so it was not open the court to consider whether a different test should replace it.
Guidance on diagnosing brain-stem death
To ensure objectivity and consistency when diagnosing death a code of practice for the diagnosis and confirmation of death was prepared by the Academy of Medical Royal Colleges (2008). The Code refines the definition of death as:
‘The irreversible loss of those essential characteristics which are necessary to the existence of a living human person and, thus, the definition of death should be regarded as the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe. This may be secondary to a wide range of underlying problems in the body, for example, cardiac arrest’
Academy of Medical Royal Colleges, 2008: section 2
The Code argues that irreversible cessation of brain-stem function, whether induced by intra-cranial events or the result of extra-cranial phenomena, such as hypoxia, equates with the death of the individual and allows the medical practitioner to diagnose death.
The Code further argues that irreversible loss of the capacity for consciousness does not by itself entail individual death. Patients in a vegetative state also lose this capacity. The difference is that in brain-stem death the person cannot breathe unaided without respiratory support.
Determining brain-stem beath
The Code (Academy of Medical Royal Colleges, 2008) requires that determination of brain-stem death initially excludes conditions that might confound the clinical assessment of the person because of:
- Severe electrolyte, acid-base, endocrine or circulatory disturbances
- Drug intoxication, poisoning or sedation
- Hypothermia—with a core temperature of less than 34°C
The clinical assessment must confirm the absence of brainstem reflexes:
- Pupils fixed and no light reflexes
- Absent corneal reflexes
- Absent oculo-vestibular reflexes
- No motor response within cranial nerve distribution
- No cough reflex
- No gag reflex
- Apnoea test, which observes for respiratory effort by the person.
The guidance requires that the tests are undertaken by two doctors on two occasions. If brain-stem death is confirmed then the time of death is recorded as the time the first tests were completed (Re A (A child) [2015]).
In North West Anglia NHS Foundation Trust v BN, PS [2022] the foster mother of a woman in her forties, who had been diagnosed as brain-stem dead by her doctors, challenged the diagnosis that the woman had died.
The Family division of the High Court held that brain-stem death had been confirmed in accordance with the criteria set out in the Code. The Court confirmed that as a result of the tests there was, sadly, no prospect of:
- Consciousness ever being restored
- The person being able to breathe unaided
- The person having any perception of the world around her
- The person being able to respond to any stimuli.
The Court held that death had been confirmed.
Conclusion
Since the Courts accepted evidence in Re A (1992) later confirmed by the House of Lords in Airedale NHS Trust v Bland [1993] that irreversible cessation of brain-stem function equated to the death of person, there has been continued debate as to whether this determination of death is robust enough to continue to be applied in practice.
Despite this controversy and continued legal challenges, the Courts continue to accept evidence of brain-stem cessation as a determination of death as long as that determination has been made in accordance with the requirements of the Academy of Royal Colleges (2008) Code. Every challenge to the use of brain-stem death in court has failed and the Court has also rejected calls to adopt the whole brain approach to the determination of death that has been adopted in the USA.
The Courts accept that the process of determining brain-stem death is distressing for relatives and friends given that circulation and respiration is being maintained artificially. The Courts argue that dignity and respect for the person must prevail and intervention cease on diagnosis of death.
Despite advances in technology, the introduction of a code of practice and many challenges to the determination of death giving the Courts the opportunity to adapt and refine their view on the determination of death it remains the case that, as Lord Lane held R v Malcherek & Steel [1981], where a doctor conscientiously comes to the conclusion that the patient is for practical purposes dead then the courts will accept that the patient is dead.
KEY POINTS
- There is no statutory definition of death in England and Wales
- The Court accepts evidence of irreversible cessation of the brainstem as equating to the death of a patient
- The Courts have rejected attempts to introduce a whole brain determination of death, as used in the USA
- It remains the case that a person is dead when a doctor says they are.