In a recent case the court had to consider whether 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, despite the objections of the baby’s parents. Such cases are always agonising for all those involved and are approached with “anxious scrutiny” by the court. Often, as in this case, there is a clash between the science espoused by the medical profession and the feelings of the parents, guided by their religious beliefs.

The case was reported in a number of newspapers, generally in a sensitive and balanced way: see, for example,

The Sun, “Parents’ agony as High Court judge rules brain-damaged baby son’s life support can be turned off”

The Daily Mail, “Judge rules brain-damaged three-month-old boy’s life support should be turned off despite parents’ desperate pleas”

And, no doubt because the family came from there, the Manchester Evening News also covered it, under the headline “Parents of baby at centre of High Court battle told by judge their son is brain dead and that life-support treatment can be lawfully removed”

The case is interesting to us for two reasons: (a) there was a dispute about what test should be applied by the court in deciding whether or not to authorise the hospital’s withdrawal of mechanical ventilation; and (b) the decision (explained in a separate judgment) to hear the case in open court, but to protect the anonymity of the medical professionals involved because of the risk of public harassment and vilification on social media.

You can read the two judgments here (via BAILII): Manchester University NHS Foundation Trust v Namiq [2020] EWHC 180 (Fam) and [2020] EWHC 181 (Fam) [Update, 14 Feb 20: these neutral citation numbers have been changed since original publication.]

The medical assessment

The judge, Mrs Justice Lieven, explained that the baby, Midrar Namiq, had been born at full term but owing to birth complications oxygen was cut off from his brain, his heart rate was undetectable and he was not breathing. He was intubated and put on a mechanical ventilator and had been kept alive in this way for several months. His heart and organs had continued to function. But three separate brain stem death tests dealing with death by neurological criteria (DNC) had been carried out and each had concluded that baby Midrar was “brain stem dead”. The hospital trust therefore wished to take him off the ventilator and allow him a “kind and dignified death”.

The parents, Karwan Ali and Shokhan Namiq, opposed that course of action. Both are Muslims and their Imam had advised them not to take Midrar off the ventilator, and that as long as his heart continued to beat they were hopeful of him getting better. The father, a biomedical scientist, was quoted in The Sun’s report as questioning the diagnosis and commenting:

“We were saying from the beginning we had a feeling that Midrar is not dead. In fact if Midrar is dead then where is the death certificate?

“I kept showing them signs of life. As a biologist I have never known a dead body, a dead person, who could live beyond four months. Circulation and heart regulation and breathing – these three are controlled by the brain stem.”

He also said, poignantly, “I am holding a rope of hope that burns in my hand every time I see Midrar, but why do the hospital and consultants keep taking the hope from us?”

Nevertheless, the court heard from a number of medical experts all of whom agreed that Midrar was, in effect, already dead. The judge referred to guidance in the form of two Codes of Practice, one produced by the Academy of Medical Royal Colleges, dating from 2008, which did not cover babies under 2 months old, and was supplemented by one produced in 2015 by the Royal College of Paediatrics and Child Health.

The test for authorising withdrawal of life support

Was it enough for the court simply to decide, on the facts, whether Midrar was dead, in order to approve the withdrawal of ventilation? Or should it carry out a “best interests” analysis – ie consider whether it was in Midrar’s best interests to withdraw treatment?

The hospital trust, supported by CAFCASS on behalf of the child, argued that it was enough to prove death, in order to justify withdrawing ventilation. But it was argued for the parents that Midrar’s situation did not fall within the guidance because the expected deterioration in the body had not occurred, and the court should apply a best interests test.

The judge rejected that argument, relying on an earlier decision in a similar case by Mr Justice Hayden, Re A (A Child) [2015] EWHC 443 (Fam), which was followed by Mr Justice Francis in Oxford University NHS Trust v AB [2019] EWHC 3516 (Fam). Both relied on the criteria in the 2008 guidance.

The judge said:

(31) “There is no statutory definition of death, presumably at least in part because it is often hard for law to keep up with developments in medical science. The test for whether a patient is dead is in the first instance one for medical professionals. When the patient is in the tragic situation of someone like Midrar the relevant clinical tests are those set out in the 2008 Code, in particular section 6. …

(32) “That the legal question is one of the application of the DNC criteria follows from previous authority and the terms of the Code. It also makes complete sense. If a patient is brain stem dead then there are no best interests to consider.”

She therefore concluded, at 35:

“For these reasons the approach I will apply below is that (1) the burden of proof is on the Trust; (2) the standard of proof is the balance of probabilities but the Court should apply anxious scrutiny to the evidence; (3) no best interests analysis is appropriate.”

Having analysed the evidence, which she found to be “both clear and consistent”, she said (at para 57): “Sadly, I have no doubt that Midrar is brain stem dead and meets the DNC criteria.” She therefore made the declarations sought by the hospital trust.

Reporting restrictions

Many readers will remember the cases of two other infants whose life-support withdrawal had to be decided by the courts: Charlie Gard in 2017 and Alfie Evans in 2018. We commented on those cases extensively at the time: see, for example,

What is happening now on the case of terminally ill baby Charlie Gard?

Alfie Evans: Summary and useful links

In each case there was a lot of attention, on both mainstream and social media, some of it from around the world. Much of it was ill-informed and much of it was highly antagonistic towards the medical professionals involved in treating and in making decisions about the future treatment of the infants concerned. There were protests outside the hospitals and some of the lawyers representing the medical professionals received hate mail.

The shadow of those two cases seems to have hung over this one. It seems to have influenced the judge’s decision, in her second judgment, when she came to consider the reporting restrictions on the case.

The first thing to note is that, in the interests of transparency, the judge decided to hold the hearing in public and to issue a public judgment, so everyone could read what had happened in the case and why. The hospital trust was named and, as in those two notorious earlier cases, the child’s name and those of his parents were also made public.

That is not always done. For example, the two earlier cases cited in the judge’s main judgment, Re A (A Child) and Oxford University NHS Trust v AB did not identify the child or parents concerned. Such anonymity does not preclude public understanding about the law or the way these sensitive cases are decided.

The key issue in the present case was whether the medical professionals should be named. There was a preliminary order, before the hearing even begun, made by a different judge, prohibiting the naming of any of the treating staff. That was continued during the hearing, even though the hearing itself was in public open court, and none of the medical professionals was named in the main judgment.

However, both the parents and the press wanted the medical professionals to be named. The parents had waived their own right to remain anonymous and the father, in particular, seems to have been critical of the medical treatment provided by the hospital staff, though this was not pursued by his barrister. The judge noted (at para 14) that “the father has made some very damaging, and wholly unevidenced, allegations against staff.”

There was evidence that the medical staff had been psychologically affected by their work, and were concerned at the prospect of being the centre of a media storm. It was also said that  naming them would lead to a risk of such professionals being discouraged from becoming involved in such cases in future. But it was argued for the press that those factors were insufficient to outweigh the public’s right to know.  

As in all such cases, the decision for the court depended on balancing the respective rights to privacy under article 8 of the Human Rights Convention, the right to a fair trial under article 6, and the right to freedom of expression under article 10.

The judge cited earlier judgments in which these competing interests had been discussed. In one of them, A v Ward [2010] EWHC 16 (Fam) Lord Justice Munby had dismissed arguments based on the treating clinicians’ fear of being exposed to “harassment and vilification”, saying, at para 180:

“One can sympathise with conscientious and caring professionals who cannot understand why they should be at risk of harassment and vilification for only doing their job – and a job, moreover, where participation in the forensic process is not, as it were, part of the ‘job specification’ as in the case of social workers and expert witnesses. But the fact is that in an increasing clamorous and decreasingly deferential society there are many people in many different professions who, however much they might wish it were otherwise, and however much one may deplore the fact, have to put up with the harassment and vilification with which the Internet in particular and the other media to a lesser extent are awash.” 

Those remarks were made a decade ago, and although Sir James Munby as President of the Family Division subsequently did much to increase transparency in the family courts, Mrs Justice Lieven seems to have thought that the internet had become a more hostile place than in 2010, and these cases more at risk of contention, and that it would not be appropriate to expose the treating clinicians to the risk of harassment and vilification in this case.  

The critical part of her judgment is at para 16:

“These cases are necessarily fact specific and I do not purport to set down general guidance. I do however somewhat differ from the views expressed by the President in A v Ward as set out above. This may be because the facts of the case differ. In my view there is an important distinction between professionals who attend court as experts (or judges and lawyers), and as such have a free choice as to whether they become involved in litigation, and treating clinicians. The latter’s primary job is to treat the patient, not to give evidence. They come to court not out of any choice, but because they have been carrying out the treatment and the court needs to hear their evidence. This means they have not in any sense waived their right to all aspects of their private life remaining private. In my view there is a strong public interest in allowing them to get on with their jobs without being publicly named. I do not agree with the President that such clinicians simply have to accept whatever the internet and social media may choose to throw at them. I note that the President’s comments were made before the well publicised cases of Gard and Evans, and perhaps at a time where the risks from hostile social media comment were somewhat less, or at least perceived to be less.”

Although she pointed out that all such cases are “fact specific” and she was not setting down guidance, it might nevertheless be possible to draw from this a more general distinction between professionals (such as social workers, lawyers, expert witnesses) whose job necessarily involves appearing in court, and those medical professionals for whom it is an involuntary distraction from their job of caring for patients.

Suffice it to say, the judge concluded that “the public interest in open justice is very largely protected in the present case by the fact that the proceedings are in public and the judgment is in public” (para 13) and that there was “no question of secret justice, or the public not being fully informed as to what is happening to Midrar and in the proceedings generally”.

---

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.

Thanks for reading!

Featured image courtesy of Abhijit Chendvankar on Flickr (via Creative Commons Licence)