ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice MacDonald
FD23P00419
Strand, London, WC2A 2LL |
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B e f o r e :
and
LADY JUSTICE ASPLIN
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St George's University Hospitals NHS Foundation Trust |
Applicant/Respondent |
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- and – |
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Andy Casey (1) Samantha Johnson (2) Christine Marie Casey (3) Joe Martin Casey (4) |
Respondents/Applicants |
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- and – |
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The Official Solicitor to the Senior Courts |
Advocate to the Court |
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Bruno Quintavalle (instructed by direct access) for the 2nd Respondent/Applicant
The 1st Respondent did not appear and was not represented
Abid Mahmood (instructed by Bevan Brittan LLP) for the Applicant/Respondent Trust
Claire Watson KC (instructed by the Official Solicitor) acting as Advocate to the Court
Hearing date: 27 September 2023
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Crown Copyright ©
Lord Justice Peter Jackson:
"The brain stem controls all the essential functions that keep us alive, most importantly our consciousness/awareness, our ability to breathe and the regulation of our heart and blood pressure. Once the brain stem has died it cannot recover and no treatment can reverse this."
"When death has been diagnosed by the methods to be described, the patient is dead even though respiration and circulation can be artificially maintained successfully for a limited period of time. The appropriate course of action is then to consider withdrawal of mechanical respiratory support, the ethical justification for which has passed, and to allow the heart to stop. This imposes an unnecessary and distressing vigil on the relatives, partners and carers, who should be kept fully informed by the local care team of the diagnosis, the inevitable outcome and the likely sequence of events."
1) The proceedings were not fair because the judge refused to allow the family to instruct another expert.
2) The proceedings were not fair because Mr Casey was not represented by a litigation friend.
3) The judge was wrong in law to treat brain stem death as the legal test for death.
4) The judge was wrong in law to use the civil standard of proof when making a finding of death.
5) The judge was wrong in law not to have carried out a best interests assessment and thereby he effectively reversed the burden of proof.
"In contrast to issues concerning the medical treatment of the living, whether they be children or adults who lack capacity, where the best interests of the individual will determine the outcome, where a person is dead, the question of best interests is, tragically, no longer relevant."
It is said that this should not be treated as binding. Once again, for the purpose of this application, it does not matter whether the statement is or is not binding because, in my view, it is plainly correct. Where the court after careful scrutiny accepts evidence of death following brain stem testing, there is no sensible basis upon which it could then carry out a best interests assessment. In contrast, where that evidence does not exist or might fail to withstand careful scrutiny (cf Dance) the court will not hesitate to address the question of best interests. If the position were to evolve during a hearing, it is open to the court to adapt its approach accordingly. That, however, is not the case here.
Lady Justice Asplin: