Diagnosis of Brain Stem Death

12 September 2023

An NHS Trust sought the endorsement of a High Court Judge for its clinical decision that Andy Casey died on 16 July 2023 at 11.51pm, by virtue of a declaration to that effect: St George’s University Hospitals NHS Foundation Trust v Casey & Ors [2023] EWHC 2244 (Fam) – MacDonald J

On 9 July 2023 Mr Casey sustained a punch to the right side of his head and fell to the ground tragically suffering a catastrophic brain injury. Before this assault he had been a healthy young man.

On the point of admission to hospital his Glasgow Coma Scale was 3, indicating that he was in the deepest form of coma. A CT scan showed widespread bleeding in and around the brain, comprising significant subarachnoid haemorrhage and intraventricular haemorrhage in both lateral ventricles, globally increased intracranial pressure and possibly early signs of hypoxic-ischaemic brain injury.

The family felt unable to agree to brain stem testing in the narrow window available for such testing to be undertaken safely, but following an out-of-hours application, Peel J made an order permitting the tests.

Two suitably qualified medical practitioners carried out two sets of tests including the full spectrum of tests stipulated by the 2008 Code of Practice for the Diagnosis and Confirmation of Death, and each of them satisfied himself that Mr Casey’s condition was due to irreversible brain damage caused by the combination of a traumatic brain injury and hypoxic-ischaemic encephalopathy. The tests were observed by some members of the Mr Casey’s family.

Family members gave evidence that they had seen movements from Mr Casey that they considered indicated that he was not brain stem dead and that he initiated breaths spontaneously. The family was permitted to film the events and copies were provided to the court.

The clinicians did not dispute the descriptions provided by the family but explained that such reflexes were well-recognised phenomena after irrecoverable loss of function of the brain stem caused by intact reflex arcs between the body’s periphery and the spinal cord which did not involve the brain. They could take many forms including a grasp reflex that was, cruelly in the light of its emotive significance, reminiscent of a hand squeeze.

The so-called spontaneous breaths were the detection by the ventilator of a perturbation of bias flow in the ventilator circuit which could trigger a ventilator-driven breath. They could be caused by a number of things including the slightest movement of the patient’s body, leaks in the breathing circuit or internally by the heart beating.

The hospital’s Ethics Committee agreed unanimously with the clinical decision-making and the intention to discontinue Mr Casey’s organ support. Mediation between the Trust and family did not resolve matters.

Although they did not believe it to be necessary in the light of the brain stem testing results, the Trust undertook an MRI of Mr Casey’s brain and spinal cord on 31 July 2023.

That MRI scan revealed devastating changes in the brain consistent with the known insult suffered by Mr Casey (which comprised the initial hypoxic-ischaemic injury caused by his cardiac arrest and the secondary ischaemic injury caused by brain swelling and elevated intracranial pressure); distortion of brain tissue consistent with ‘coning’ (i.e. part of the cerebellum had herniated through the foramen magnum and now sat adjacent to the upper cervical cord) leading to compression and irreversible ischaemic injury of the brain stem, with the resulting irreversible loss of capacity for consciousness and breathing, and to extensive damage to Mr Casey’s spinal cord.

The loss of normal flow voids in the internal carotid and vertebral arteries (the four vessels that, collectively, supplied blood to the brain) implied that Mr Casey’s brain was no longer receiving a blood supply, a state incompatible with brain function.

The family sought further tests and, in an attempt to reach agreement, the Trust carried out a CT angiography on 1 August 2023 and an EEG on 2 August 2023. The CT angiography indicated that thrombus (blood clot) had filled the large arteries supplying the brain and there was no longer a means for blood to be delivered to Mr Casey’s brain, a state incompatible with life and unequivocally consistent with brain stem death.

The EEG performed on 2 August showed changes expected after death with no discernible bioelectrical brain rhythms and no changes during external stimulation.

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. The rationale for that was set out in Appendix 5 of the 2008 Code of Practice.

The question of best interests was no longer open to the court following brain stem testing carried out in accordance with the 2008 Code of Practice that had diagnosed and confirmed death: Re M (Declaration of Death of Child) [2020] EWCA Civ 164; [2020] 4 WLR 52. Nothing in  Barts NHS Trust v Dance [2022] EWCA Civ 935, [2022] 4 WLR 83 changed that (a case where it was not possible to conduct a brain stem test in accordance with the 2008 Code of Practice).

Concluding, with great sadness, that Mr Casey died on 16 July 2023 at 11.51 pm, his Lordship observed that the now blurred boundary between life and death could be delineated by reference to philosophy, to ethics or to the cardinal tenets of the world’s great religions, but the task of the court was to consider whether Mr Casey had crossed over that boundary for the purposes of the law.