We reported earlier on the High Court’s decision to allow a hospital to withdraw mechanical ventilation from a baby, who had been starved of oxygen during his birth and had been declared “brain-stem dead” by doctors. Now the Court of Appeal have given their detailed reasons for refusing the parents’ application for permission to appeal.
In doing so, the higher court has not only approved the approach adopted by the judge in deciding whether to grant a declaration in favour of the NHS Trust, but has also approved her approach in imposing a reporting restriction preventing any naming of the medical professionals and carers.
You can read our earlier post here: “Brain dead” baby – how the court decides doctors can withdraw life support
You can read the Court of Appeal’s judgment (via BAILII) here: Re M (Declaration of Death of Child) [2020] EWCA Civ 164
The High Court decision
The case concerned a baby, Midrar Namiq, who had been deprived of oxygen during birth and was declared by several medical assessments to be “brain stem dead”. Manchester University NHS Foundation Trust sought a declaration from that court that it would be lawful to take him off the mechanical ventilator that was making his heart and organs continue to function and to allow him a “kind and dignified death”. However, the parents objected.
The judge, Mrs Justice Lieven, rejected the parents’ argument that she should carry out a “best interests” analysis – ie consider whether it was in Midrar’s best interests to withdraw treatment. She held, applying earlier case law, that the critical question was whether, in fact, Midrar was dead. Then, after looking at the medical evidence and the relevant codes of practice, she concluded that he was indeed dead, and that the hospital should be allowed to remove mechanical ventilation.
The Court of Appeal
Sir Andrew McFarlane, President of the Family Division, gave the main judgment in the Court of Appeal. He confirmed at paras 23-24, that the critical question in the case was whether the child was dead, and not what his “best interests” might be. Logically, the question of best interests could only arise if he were not dead. Where a person is dead, “the question of best interests is, tragically, no longer relevant”.
If the child was dead, however that was defined, then the only remaining question was whether the ventilator could be removed. (Perhaps a more logical way of putting that might be to ask if there was any reason why it should not be removed.)
There is no statutory definition of death but for these purposes “brain stem death” is the relevant legal test as laid down by the House of Lord’s decision in the case of Airedale NHS Trust v Bland [1993] AC 789. It was not, therefore, open to the Court of Appeal (still less the judge below) to contemplate a different test.
In considering the matter in this case, McFarlane P looked a bit more closely at the two cases cited by Lieven J in her main judgment. The first of these was the decision of Mr Justice Hayden in Re A (A Child) [2015] EWHC 443 (Fam), which he said “established the correct structure for dealing with sensitive applications of this nature.”
The second of the two cases was Oxford University NHS Trust v AB and others [2019] EWHC 3516 (Fam) and here the treatment was more brisk. Basically, McFarlane P said that Mr Justice Francis in that case had been wrong to refer to “best interests” and must have “inadvertently fallen into error” in the course of “what was obviously an ex tempore judgment given in the most fraught circumstances”.
The grounds of appeal
In the High Court, the parents had submitted that Re A had been wrongly decided and that the “best interests” test was the correct one; but that point, having been rejected by the judge, was no longer disputed.
Instead, the parents argued that they should be allowed to appeal on the basis the judge had been wrong as a matter of fact and law in concluding that Midrar was legally dead, that they had not consented to the relevant tests being carried out and had not had a chance to instruct their own expert. The last point was undermined by the fact that they had since had a chance to instruct an expert, who had confirmed the earlier medical evidence of death. This alone would seem to defeat any chance of appeal, but in any event the Court of Appeal carefully considered and rejected each of the grounds advanced.
The form of declaration
The Court of Appeal not only approved the decision of Hayden J in Re A, which the judge followed, but also said they thought the form of declaration given in Re A was better than that used in the present case by the judge. Somewhat unusually, they seem to have obtained a copy of those declarations from Hayden J and quote them in para 48:
“It is declared that: 1. [The child] died at 10.10 hrs on the 10 February 2015, irreversible cessation of brain stem function having been conclusively established; he having lost the essential characteristics necessary to the existence of a living human person namely (i) the irreversible loss of the capacity for consciousness (i.e. a permanent absence of consciousness), along with the (ii) irreversible loss of the capacity to breath; thus the inevitable and rapid deterioration of integrated biological function.
2. Permission to a consultant or other medical professional at [the hospital] to (1) cease to mechanically ventilate and/or to support the respiration of [the child] and (2) extubate [the child] (3) cease the administration of [medication] to [the child] and (4) not attempt any cardio or pulmonary resuscitation upon [the child] when cardiac output ceases or respiratory effort ceases.
The action(s) and/or inaction(s) of the clinicians employed by the [hospital], as described in paragraph 2 above, are lawful.”
Then, at para 60, McFarlane P says this about those declarations:
“For my part, I consider that the form of words used in Re A is to be preferred. The declaration made by a court in cases such as this should (where the evidence establishes the case) expressly declare that the individual has died at a particular time and date before going on to give permission and declare that it is lawful for ventilation and other clinical interventions to be withdrawn. Further, I regard the formulation adopted by Hayden J at para 26 of his judgment to be particularly apt in identifying the purpose of the declarations which are to allow the individual who has died ‘dignity in death’.”
What Hayden J had said at para 26 of Re A was:
“Whilst expressing profound respect for the father’s views, the time has now come to permit the ventilator to be turned off and to allow Child A, who died on 10th February, dignity in death. For those reasons, I propose to make the declarations sought by the Trust, with the indicated amendments, confident that this hospital will do everything they can to make this inevitably painful process as dignified as possible for all concerned. I would only add my profound condolences to Mr and Mrs A and to Child B and Child C.”
The key point seems to be that the declaration should be very specific as to the time and fact of a death, and to reinforce the idea that “dignity in death” is accorded to someone for whom death has already happened.
The Reporting Restrictions
Lieven J imposed a restriction preventing the naming of any of the medical professionals and carers involved in the case. This too was challenged by the parents, but again the Court of Appeal rejected the challenge. While upholding the judge’s reasons for making the reporting restriction (and for departing from earlier decisions to the contrary), the court accepted a proposal by the hospital trust that the ban should only continue for 28 days after disconnection of the ventilator. By then, the trust accepted that “likely that the potential for any adverse publicity will have significantly diminished” (para 104). The order was amended accordingly.
Delay
The Court of Appeal made some comments on the length of time it had taken for the matter to come to court – some four months after original diagnosis. It transpired that this had been due to efforts by the hospital trust to resolve the matter with the parents by consent and, once proceedings had been issued, time being allowed for the parents to obtain legal aid and instruct lawyers. However, McFarlane P suggested that in future it might be better to issue proceedings sooner and allow the court to direct and facilitate reasonable further testing and encourage mediation itself.
Precedential value
The judgment concludes with a technical point mainly of interest to lawyers, as to the value of the decision in setting a precedent. McFarlane P says, para 113:
“Finally, although this is a judgment which concludes that permission to appeal should be refused, I direct that it be made available for reporting and wider dissemination given the importance of the issues raised and the fact that this is the first occasion that these matters have been ventilated at Court of Appeal level.”
That means not just that it can be cited as a precedent, but also that it has the effect of elevating the value, as a precedent, of Hayden J’s judgment in Re A, which has now been approved by the Court of Appeal and is therefore all the more authoritative.
It also means that the Court of Appeal has endorsed Lieven J’s approach in this case to the use of reporting restrictions preventing the naming of medical professionals by reason of the risks of harassment and of abuse on social media in this type of case. As we noted in the previous post, that represents a departure from the more permissive approach espoused by McFarlane’s predecessor, Sir James Munby, a decade ago. We can expect this new, more restrictive approach to be adopted in similar cases from now on.
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Featured image courtesy of Abhijit Chendvankar on Flickr (via Creative Commons Licence)