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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Manchester University NHS Foundation Trust v Namiq & Anor  EWHC 180 (Fam) (28 January 2020)
Cite as:  EWHC 180 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
|MANCHESTER UNIVERSITY NHS FOUNDATION TRUST||Applicant|
|MIDRAR NAMIQ||First Respondent|
|MR KARWAN MOHAMMED ALI||Second Respondent|
|MS SHOKHAN NAMIQ||Third Respondent|
Ms Maria Stanley (instructed by CAFCASS) for the First Respondent
Mr Bruno Quintavalle (instructed by Barlow Robbins) for the Second and Third Respondents
Hearing dates: 20, 21 and 22 January 2020
Crown Copyright ©
The Honourable Mrs Justice Lieven DBE :
Midrar Namiq has no capacity to consent to, to refuse, or to make decisions about the medical treatment he should receive, namely the administration of mechanical ventilation.
It is lawful for Manchester University Hospital NHS Foundation Trust to make arrangements for his mechanical ventilation treatment to be withdrawn to allow him a kind and dignified death.
The factual position
"Midrar has no prospect of recovery from his injury. He will not regain consciousness. He will not regain the ability to breathe independently or survive without mechanical ventilation. He has no perception of the world around him and this will not return.
His heart and circulation continues to function only because of the mechanical ventilation he is receiving and the excellent clinical care that he continues to receive. This circulation is sustaining the function of his other organ systems, but his brain is not functioning and will not recover.
Eventually, Midrar's other organ systems and his heart will also die as a consequence of this injury, even if mechanical ventilation is continued. He will eventually develop ventilator associated pneumonia. He will start to develop muscle wasting and joint contractures. It is likely that internal homeostasis will be disturbed as he no longer has central control of endocrine or autonomic functions. It may be possible to manage some of these complications by medical intervention. This is likely to require repeated reintubation of the trachea, chest physiotherapy and airway suction, repositioning and nursing care to maintain skin integrity, multiple blood tests, repeated venous cannulation and antibiotic administration, escalation of ventilator settings and oxygen administration and an increasing number of drugs to be administered.
Midrar is unconscious and has no appreciation or perception of the world around him. I do not believe that he has the capacity to feel pain or distress, so this deterioration will not be distressing for him. It will however, be an undignified and unkind way to allow his death to take place. It will also place a significant burden of distress onto his family and onto those who are caring for him given the futility of these interventions and the associated unkindness."
"catastrophic appearances with interval brain liquefaction including brainstem supportive for brainstem death".
The relevant guidance
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 such as, for example, cardiac arrest.
2.1 Death following the irreversible cessation of brain-stem function
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.
Three things should be noted in this regard:
First, the irreversible loss of the capacity for consciousness does not by itself entail individual death. Patients in the vegetative state (VS) have also lost this capacity (see section 6.9). The difference between them and patients who are declared dead by virtue of irreversible cessation of brain-stem function is that the latter cannot continue to breathe unaided without respiratory support, along with other life-sustaining biological interventions. This also means that even if the body of the deceased remains on respiratory support, the loss of integrated biological function will inevitably lead to deterioration and organ necrosis within a short time.
Second, the diagnosis of death because of cessation of brain-stem function does not entail the cessation of all neurological activity in the brain. What does follow from such a diagnosis is that none of these potential activities indicates any form of consciousness associated with human life, particularly the ability to feel, to be aware of, or to do, anything. Where such residual activity exists, it will not do so for long due to the rapid breakdown of other bodily functions.
Third, there may also be some residual reflex movement of the limbs after such a diagnosis. However, as this movement is independent of the brain and is controlled through the spinal cord, it is neither indicative of the ability to feel, be aware of, or to respond to, any stimulus, nor to sustain respiration or allow other bodily functions to continue.
In short, while there are some ways in which parts of the body may continue to show signs of biological activity after a diagnosis of irreversible cessation of brain-stem function, these have no moral relevance to the declaration of death for the purpose of the immediate withdrawal of all forms of supportive therapy. It is for this reason that patients with such activity can no longer benefit from supportive treatment and legal certification of their death is appropriate.
The current position in law is that there is no statutory definition of death in the United Kingdom. Subsequent to the proposal of the 'brain death criteria' by the Conference of Medical Royal Colleges in 1976,3,4 the courts in England and Northern Ireland have adopted these criteria as part of the law for the diagnosis of death.5,6 There is no reason to believe that courts in other parts of the United Kingdom would not follow this approach.
Chapter 6: The Diagnosis of Death Following Irreversible Cessation of Brain-Stem Function
…Concern is sometimes expressed over continuing function within the brain-stem, occurring beneath the level at which any motor, somatosensory or breathing reflexes can be elicited and also over continuing function in other parts of the brain. However, as has already been indicated, both are irrelevant when evaluating function against these clinical criteria of death resulting from irreversible cessation of brain-stem function, which demonstrate the permanent absence of consciousness and thus the ability to feel or do anything, along with the inevitable and rapid deterioration of integrated biological function.
For the avoidance of doubt all the advocates here have agreed that the High Court Family Division has the relevant jurisdiction. This clearly exists both under the parens patriae (which has its very origins in the responsibility, for 'a ward of court' and the body of the ward) and pursuant to an application for declaratory relief made under the inherent jurisdictional power. The interrelationship between the two is sometimes subtle but, either separately or together, they authorise this court to make declarations in respect of what I must now regard as Child A's body.
Whilst expressing profound respect for the father's views, the time has now come to permit the ventilator to be turned off and to allow Child A, who died on 10th February, dignity in death. For those reasons, I propose to make the declarations sought by the Trust, with the indicated amendments, confident that this hospital will do everything they can to make this inevitably painful process as dignified as possible for all concerned. I would only add my profound condolences to Mr and Mrs A and to Child B and Child C.
I am very clear that should a difference of view arise between treating clinicians and family members in circumstances where assisted ventilation is continuing, any dispute, if it cannot be resolved otherwise, should be determined in the High Court, not under coronial powers.
Secondly, the fact is, as I have already identified, tragically Dr AB is already effectively dead according to the definition from the Code of Practice which I have just read out.
Thirdly, (and I use the word "futile" only in the correct medical and legal sense), treatment would be futile. Continuing respiration would be futile because it will be pointless; it is impossible that anything will happen to bring AB back.
AB's parents have faith. This is not the first case and it will not be the last case where faith has conflicted with science. I am not going to make judgments about that. All I am going to say is that it is completely clear on the basis of the medical evidence, which has been so properly and completely set out to me, that there is no prospect whatsoever of AB reviving for all of the reasons that I have set out.
The Parties' positions
Even if ventilation and cardiovascular support are continued, both adults and children will ultimately suffer cessation of heart beat. Often this occurs within a few days but may take weeks or even months, if aggressive support is maintained…
Conclusions on the legal approach
Analysis of the evidence