EWJ Dec 2023 - Journal - Page 25
Brain Stem Death, an Explainer
of the Law in England & Wales, and
a Question of Consent
by Alex Ruck Keene KC (Hon), Barrister, 39 Essex Chambers and Visiting Professor,
King’s College London.
The case of Andy Casey sheds light again on the
difficult question of diagnosing death by neurological
criteria (‘DNC’), and the wider question of what, in
fact, it means to be dead. For those who want to know
more about it, this explainer1 by my colleagues Victoria Butler-Cole KC and Ben Tankel is helpful; my
review2 of the recent book on the medico-legal development of neurological death in the UK by Dr
Kartina Choong may also be helpful. And some may
want to see the 2008 Code of Practice for the Diagnosis and Confirmation of Death3 by the Academy of
Medical Royal Colleges, as well as the 2015 RCPCH
Code4 relating to those under 2 months old (both
currently under review).
what the test was about. Therefore they were given the
appropriate information, and on the facts of the case their
consent can be inferred from their conduct. Thirdly, and in
any event, even if the tests should not have taken place because of lack of consent that does not mean that the outputs of
the test would not be admissible before me. I am being asked
to decide a factual question as to whether Midrar is dead, and
lack of consent would not vitiate the evidence that goes to that
issue (emphasis added)
Lieven’s decision was challenged on this ground
before the Court of Appeal, but the Court of Appeal
held that “for reasons given by Lieven J, there is no
merit in this point” (paragraph 68). And it is of note
that the Canadian position5 in guidance published in
May 2023 is that “consent for DNC testing should neither be required nor requested” – further explanation as to why this may be being given here (and note
neither the 2008 nor the 2015 Codes6 mention the
word ‘consent,’ with the words ‘best interests’ in the
2008 Code reserved for decisions about treatment of
the patient, and not appearing in the 2015 Code at
One point to note is that it appears before the High
Court that there was an assumption that DNC testing
requires the consent of a person with parental
responsibility (if the individual is a child), or recourse
to the Mental Capacity Act 2005 as a work-around for
the inability of an adult suspected of being brain stem
dead to give the necessary consent: see paragraph 31.
In this regard, it is perhaps of note that this is an assumption which was not necessarily shared by the
Court of Appeal in the only previous case to reach it
relating to DNC testing (the Battersbee case concerned the situation where it was not possible to carry
out DNC testing).. In Manchester University NHS Foundation Trust v Namiq & Anor [2020] EWHC 180 (Fam)4
(concerning a very young child, and hence in circumstances where both the 2008 Code and the 2015 Code
were relevant), Lieven J was faced with the argument
that:
[t]he DNC tests could only be carried out if the parents had
given fully informed consent. He relies on Glass v UK to
argue that the tests would be invalid without such consent. In
my view this argument is wrong for a number of reasons.
Firstly, the parents were aware that the tests were going to be
carried out probably that day, as is shown by the transcript of
the conversation with Dr E, and the Father did ultimately accept this. The transcript does not suggest that the Father or
Mother said the tests should not go ahead. Further, the parents
were fully informed as to the purpose of the tests, so in my view
the issue about “informed” consent goes nowhere on the facts
of the case. Secondly, I do not think there is any requirement
for written consent from the parents, or for the information to
be written down. There is no such requirement in the Code.
Glass is dealing with a very different situation, where the issue
was the withdrawal of certain treatment. It is not clear to me
that consent would necessarily have to be given for a test at all.
But, I do not have to decide that issue because the parents
undoubtedly knew that the test was to be carried out, and knew
EXPERT WITNESS JOURNAL
Dr Khaled Abdel-Aziz
Consultant Neurologist
BSc, MBChB, PhD, FRCP
Dr Abdel-Aziz is a consultant neurologist / expert witness based in
Surrey and London. He has consulting rooms for medicolegal
appointments in Central London, Woking and Guildford and can travel
to assess clients if necessary, subject to pre-agreement. He currently
prepares around 80 (65 personal injury and 15 clinical negligence)
medicolegal reports per year and has given oral evidence in court once
in the last 5 years.
Dr Abdel-Aziz obtained the Cardiff University Bond Solon Civil
Expert Certificate in 2021 and is indemnified with the MPS.
Contact: Asma
Tel: 02033848855
Email: neurologyexpert@outlook.com
Address: Nuffield Hospital, Grange Rd, Woking, GU21 4BY
Area of work: London, Surrey & Nationwide
23
DECEMBER 2023