Brain stem death: guidance for hospital providers

A new High Court decision provides guidance and clarification on applications for declarations of death. The decision in University Hospitals Bristol and Weston NHS Foundation Trust v The Mother of G adds to earlier guidance on the procedure to be adopted in applications for declarations of death. While decisions will be fact specific, this case provides further clarity for NHS providers on brain stem death and the courts.   

This tragic case involved a 36-year-old woman who was transferred by ambulance on 14th April 2024 to the Trust's emergency department after ingesting 1.5 to 2 litres of engine coolant containing a lethal dose of ethylene glycol at home. She presented with a Glasgow Coma Scale score of 4 (3 being the lowest and 15 the highest), 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 following day, G’s pupils remained fixed and unresponsive.  A CT head scan revealed brain swelling and compression. The neurosurgical opinion was that there was no possibility of viable surgical intervention. On 16 April 2024, sedation was stopped, and she had no cough, gag or corneal reflex. Clinicians informed her family that all tests suggested she had died, but 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. Further neurological tests were conducted which continued to point to a diagnosis of death. Some of the tests set out in the Code of Practice for the Diagnosis and Confirmation of Death produced by the Academy of Medical Royal Colleges (2008) were carried out, but not all; hypoxia continued to prevent completion of the apnoea test. 

Throughout this time, the Trust had repeated conversations with family members, setting out the clinical opinion that G had suffered a devastating brain injury and probably already fulfilled the criteria for diagnosing death, but the absence of an apnoea test meant it could not be confirmed. G continued to be fully mechanically supported and cared for.

At a best interests meeting on 7 May 2024, the future care of G was discussed with the family, including the options of continuing or withdrawing the mechanical support. In the event of dispute, the matter would be referred to court.

On 15 May 2024 formal brain stem testing, including the apnoea test was performed in accordance with the Code of Practice and confirmed the unanimous view of the ICU consultants that G was brain stem dead and proposed that mechanical support should be withdrawn. G’s mother disagreed, wanting more time for G to recover. 

The Trust made an application to court. Mr Justice Peel made a declaration authorising the withdrawal of mechanical ventilation and medical support.

Guiding principles

Mr Justice Peel considering the recent case law provided nine principles:

“i) There is no statutory definition of death.

ii) In Airedale NHS v Bland [1993] AC 789 the House of Lords accepted the validity of a medical diagnosis of death arising from an irreversible absence of brain stem function. As Lord Keith stated at p.856:

"In the eyes of the medical world and of the law a person is not clinically dead so long as the brain stem retains its function".

iii) The rationale for the absence of brain stem reflexes being the criteria for death is explained in Appendix 5 of the Code of Practice:

"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. Inevitably the heart will stop beating; even if breathing is supported by a machine (ventilator)".

iv) The clinical definition of death in s2 of the Code of Practice is as follows:

"Death entails the irreversible loss of those essential characteristics which are necessary to the existence of a living human person and, thus, the definition of death should be regarded as the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe. This may be secondary to a wide range of underlying problems in the body, for example, cardiac arrest"; and

"The irreversible cessation of brain stem function whether induced by intra-cranial events or the result of extra-cranial phenomena, such as hypoxia, will produce this clinical state and therefore irreversible cessation of the integrative function of the brain stem equates with the death of the individual and allows the medical practitioner to diagnose death."

v) Once brain stem testing has been administered, and where that test has indicated that a person has died by reference to the criteria set out in the 2008 Code of Practice, if that outcome is the subject of a dispute the case becomes one to be decided in the Family Division under the inherent jurisdiction of the High Court.

vi) In those circumstances, if there is a dispute about death, the narrow (but vital) issue for the court is whether the person has died.

vii) If the court determines that the subject of the application is not brain stem dead, then it will proceed to a best interests decision either in the Court of Protection (for an adult who lacks capacity) or in the Family Division (for a child).

viii) If, by contrast, the court determines and declares that the subject is dead, the question of best interests is not relevant (Re M (Declaration of Death of Child) [2020] EWCA Civ 164 at para 24). The court can proceed to make a declaration of death, and that withdrawal of medical intervention is lawful.

ix) The standard of proof in determining whether the subject of the application is dead is on the ordinary civil basis: para 30 of St George's Hospital NHS Foundation Trust v Andy Casey and others [2023] EWCA Civ 1092.”


Mr Justice Peel provided five additional observations on the procedure to those set out in 2023 in the case of St George's University Hospitals NHS Foundation Trust v Casey.

“i) The application (or claim) is brought under the Part 8 procedure set out in the Civil Procedure Rules where the claimant (usually the Hospital Trust) seeks the court's decision "on a question which is unlikely to involve a substantial dispute of fact" (CPR 8.1(2)).

ii) Usually, where brain stem testing has been carried out, there will be no substantial dispute of fact. Hence, the Part 8 procedure is appropriate for cases of this nature.

iii) Under the rules, the claimant must file witness evidence with the claim form (CPR 8.5(1)). In cases of this nature, that will ordinarily be one or more statements from clinicians. 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.

iv) The rules also provide for an acknowledgment of service by the defendant 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)).

v) In my judgment, the strict application of these rules is unlikely to be appropriate, save, as I have suggested at iii) above, in respect of the obligation on the Hospital Trust to file evidence with the claim form. 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.”


Hospital providers and healthcare professionals navigating this complex and difficult area of medicine will find Mr Justice Peel’s decision helpful. Reading Alex Ruck Keene KC’s blog on the case, readers are informed that the Code of Practice is under review, with a revised version due to be published for consultation in the near future.

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