Guidance on applying to the Family Division for a declaration of death
In University Hospitals Bristol and Weston NHS Foundation Trust v The Mother of G [2024] EWHC 1288 (Fam), Peel J has provided guidance on applications for a declaration of death. Oliver Lewis acted for the applicant NHS Trust which sought a declaration that patient ‘G’ had sadly died on 15 May 2024.
On 14 April 2024, G, aged 36, was transferred by ambulance to the Trust’s emergency department after ingesting poison. She presented with a Glasgow Coma Scale score of 4, an unstable cardiac rhythm and experienced multiple seizures. She was treated with anticonvulsants, intubated and taken to the ICU where she received multi-organ support, including a ventilator.
The next day, G’s pupils remained fixed and dilated. Sedation was stopped and she had no cough, gag or corneal reflex. Clinicians informed her family that all tests suggested she had died. At that time it was not possible to carry out brain stem testing due to high oxygen requirements precluding the apnoea part of the testing procedure.
Following a best interests meeting on 7 May 2024, brain stem testing was completed on 15 May 2024 on the ICU pursuant to the 2008 ‘Code of Practice for the Diagnosis and Confirmation of Death’ produced by the Academy of Medical Royal Colleges. The test concluded that G was brain stem dead, and the time of death was recorded at the conclusion of the first test at 1:30pm. In accordance with the Code of Practice, the testing was then repeated by a different doctor and returned the same result. G’s mother disagreed, wanting more time for G to recover.
Last Friday, Peel J granted the Trust’s application, commenting that G’s mother’s position “is understandable but sadly futile”.
In St George's University Hospitals NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam), MacDonald J provided guidance to applicants in these sorts of cases of Peel J added to the guidance In Re G.
Consolidating the guidance in both cases, NHS Trusts are advised to take the following steps.
1. Where there is a dispute about whether brain stem testing is in the patient’s best interests, the applicant Trust should make an application to the Court of Protection under s.16 Mental Capacity Act 2005 for patients over 16 (and to the Family Division where the patient is under 16). In the Court of Protection, the Official Solicitor will, subject to the usual provision for her costs being met, act as litigation friend on the issue of whether it is in the patient’s best interests for brain stem testing to take place.
2. Where brain stem testing has been completed and there is no agreement between treating clinicians and family members with respect to the course of action consequent upon the diagnosis and confirmation of death, the Trust should make an application to the Family Division under Part 8 Civil Procedure Rules (“CPR”) seeking the court’s decision “on a question which is unlikely to involve a substantial dispute of fact”: CPR 8.1(2).
3. The patient will usually not be joined as a party, and the issue of litigation friend will not ordinarily arise.
4. Clinicians should diagnose death by brain stem testing in accordance with the 2008 Code of Practice. Applications to the court for a declaration of death should be the exception.
5. Where an application is made, the narrow issue for the court is to determine whether the patient has died, requiring the court to consider the results of the brain stem testing undertaken and ascertain whether the tests were undertaken in accordance with the 2008 Code of Practice.
6. The claimant Trust should file witness evidence with the claim form: CPR 8.5(1). The evidence will ordinarily be one or more statements from clinicians (in the Re G case, the consultant exhibited the completed form that was filled out when brain stem testing was done). At para. 24(iii) of Re G, Peel J said, “It is hard to conceive of any good reason why witness evidence should not be filed in accordance with this rule to set out the procedure and conclusions of the brain stem testing; after all, the case must be proved by the claimant.”
7. The rules also provide for an acknowledgment of service by the defendant (interestingly, in both Re Casey and Re G, the term ‘respondent’ is used in the titles) within 14 days of service of the claim form (CPR 8.3(1)(a)), which should be accompanied by any written evidence upon which the defendant seeks to rely: CPR 8.5(3). There are then provisions for the claimant to file evidence in reply: CPR 8.5(6). The strict application of these rules is unlikely to be appropriate, save in respect of the obligation on the Trust to file evidence with the claim form. At paragraph 24(v) of Re G, Peel J said,
“applications for declarations of death by reason of brain stem testing are usually urgent in the sense that it is unreasonable to wait any length of time for determination of such sensitive matters. Absent legitimate reasons for questioning the validity of the tests and their conclusions, the court is likely to feel able to proceed to an expedited hearing, with a foreshortened timetable, requiring the defendant’s evidence to be produced in very short order, or perhaps dispensing with the need for formal evidence from the defendant altogether. This seems to me to be legitimate, and consistent with the overriding objective in Part 1 of the CPR, in circumstances where the evidence in respect of brain stem testing is, or appears to be, incontrovertible. It will, however, all depend on the facts of the case. I do not for one moment suggest that an expedited hearing will always be appropriate, but in my view it is likely to be so where there is no realistic basis advanced for challenging the testing procedures or conclusions.”
8. Where the court determines that a declaration of death should be made, the appropriate wording of the declaration of death and ancillary declaration is as follows:
a) [Name of patient] died at XXXX hours on XX [date], irreversible cessation of brain stem function having been conclusively established; he/she 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 (ii) the irreversible loss of the capacity to breathe; thus the inevitable and rapid deterioration of integrated biological function.
b) In the circumstances, it is lawful for a consultant or other medical professional at [the hospital] to (i) cease to mechanically ventilate and/or to support the respiration of [name of patient] and (ii) extubate [name of patient] and (iii) cease the administration of [add medications] to [name of patient] and (iv) not attempt any cardio or pulmonary resuscitation upon [name of patient] when cardiac output ceases or respiratory effort ceases.
In Re G, Oliver Lewis acted for University Hospitals Bristol and Weston NHS Foundation Trust. His clerk is Rachel Finch whose email address is r.finch@doughtystreet.co.uk.
