Determining death in cases of severe brain damage

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).

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;