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Last month the High Court in Manchester University NHS Foundation Trust v Midrar Namiq had the unenviable task of considering whether ventilation should be withdrawn from a severely brain injured baby.
The applicant Foundation Trust argued that it was for the Court to assess whether the relevant testing had established “on the balance of probabilities” that the child was brain dead – in contrast to the family’s case which was for the Court to apply the best interests test to whether intensive care support that was still keeping oxygenated blood circulating the body should be removed.
The Court’s approach was that there could be no best interests assessment where there was established brain stem death – it referred to the two relevant sets of guidance:
Michael Mylonas QC of Serjeants’ Inn Chambers reviews this tragic case in his blog here.
Court of Appeal hearing
Following the High Court’s decision the parents sought permission to appeal.
Bridget Dolan QC of Serjeants’ Inn Chambers in her latest blog assesses the grounds for appeal and the Court of Appeal's conclusion. In short, the Court of Appeal concluded that "as a matter of law" brain stem death was the legal criteria and it was not open to it to contemplate a different test.
This latest decision provides further clarity for healthcare professionals working in this difficult field. While individual facts will vary, the Court of Appeal has reinforced the legal test to be adopted in these types of cases.
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