By Daniel Clark, 24 October 2023
Andy Casey was 24-years-old when he was punched in the head in a pub beer garden, and suffered a catastrophic brain injury and minor neck spinal fractures. He was admitted to a Neurointensive Care Unit, and began to receive organ support. Given his deteriorating condition, the hospital suspected that his brain stem had died, which would mean he was medically dead.
His family did not agree to brain stem testing taking place and consequently – although it’s not clear that they needed to (see Alex Ruck Keene’s commentary on this point here) – the Trust applied to the Court of Protection for permission to carry out brain stem testing. Testing was authorised by Mr Justice Peel on 16 July 2023. Late that evening, after the tests were appropriately carried out, death was diagnosed. Death was then confirmed by the tests being repeated early on 17July 2023. However, the family believed they saw signs (mostly hand movements and an attempt to breathe by himself) that were incompatible with brain stem death.
The Hospital Trust therefore made an application to the court seeking a declaration that Mr Casey had died on 16 July 2023 at 11:51pm, and that it was therefore lawful for life-sustaining medical intervention (including mechanical ventilation) to cease. Since doctors considered Mr Casey to be dead, this application was made to the Family Division (not to the Court of Protection).
The case has been widely covered in the media, which identifies Andy Casey and his family members, which is why the family’s names can be used in reporting this case (see: “‘The horse has already bolted’: Transparency in a case of ‘brain stem death‘”).
In his judgment, the High Court judge, MacDonald J, stated that, “I am also satisfied that what the family are seeing are in fact well recognised base reflexes that can survive brain stem death. Cruelly, the flattering voice of hope convinces those that love Mr Casey that these are signs that Mr Casey is not dead”.* He ruled that Andy Casey died on 16 July 2023 at 11:51pm, and that it is lawful for all medical intervention to cease.
This appeal, before Lord Justice Peter Jackson and Lady Justice Asplin in the Court of Appeal, was brought by Andy’s brother and sister, and Andy’s mother. It was heard on 27 September, 2023. Anyone interested in watching the recording of the hearing can do so on YouTube: just click here.
Representing the parties were: Bruno Quintavalle, for Andy’s mother, Samantha Johnson; James Bogle, of 10KBW, and Paul Diamond, for Andy’s brother, Joe Casey, and sister, Christine Casey; Abid Mahmood, of No5 Barristers’ Chambers, for St George’s University Hospitals NHS Foundation Trust; Claire Watson KC of Serjeants’ Inn Chambers, instructed by the Official Solicitor, acting as Advocate to the Court.
Hearings in the Court of Appeal
When a judgment is appealed from a Tier 1 or Tier 2 judge in the Court of Protection, the appeal is heard by a more senior (Tier 3) Court of Protection judge – but appeals against decisions by Tier 3 judges (i.e., those sitting normally in the Royal Courts of Justice) are heard by the Court of Appeal (whether they originate in the Court of Protection or – as here – in Family Division of the High Court). That is what happened in this case.
The primary focus of the Open Justice Court of Protection Project is cases that are heard in the Court of Protection, but we also try to follow cases that begin in the Court of Protection (as this one did for determination of death) as they proceed through subsequent hearings and the appeal process – which sometimes also extends to the Supreme Court, as we blogged about in this case: Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB.
We’ve blogged about two previous hearings in the Court of Appeal.
The first (“The most complex Covid patient in the world: Planning for a re-hearing after a successful appeal”) concerned discontinuation of ventilation for a woman who was diagnosed as being in a minimally conscious state. On that occasion, the appeal was granted, the original judgment of Mr Justice Hayden ‘set aside’, and the case returned to Mrs Justice Theis in the Court of Protection
The second (“How not to do open justice in the Court of Appeal”) also concerned an appeal against a decision of Mr Justice Hayden, this time for a young woman with anorexia. On that occasion, the conditions were not amenable to open justice, as skeleton arguments were refused to the public. Again, that appeal was allowed.
Many hearings in the Court of Appeal and the Supreme Court are live-streamed – but this can be patchy, and it’s not always clear in advance which ones will be live-streamed and which can only be observed in person. Celia Kitzinger recently attempted to observe a hearing in the Court of Appeal only to be told on the day that it would not be live-streamed and (after it had started) that she could not observe via a remote link – despite the fact that a remote link was set up for one of the family members: the subsequently published judgment (Re VA [2023] EWCA Civ 1190) is no substitute for actually observing justice-in-progress. We don’t know how it’s decided which hearings are live-streamed and which are not, but have submitted a Freedom of Information request to find out (it’s here).
Transparency matters
Live streaming created a major difference between this Court of Appeal hearing and the type of hearings I’m used to observing in the Court of Protection. Also, unlike the Court of Protection, the recording has been made publicly available (here: https://www.judiciary.uk/live-hearings/re-ac/).
Usually, when we want to observe a hearing in the Court of Protection, we have to email the Court to ask for the link. Quite often, we get no response and have to follow up that request with further emails and a phone call. Sometimes we are never sent the link – there is simply no reply. The effect of live-streaming was that this stress was taken away, which meant I had time to comfortably re-read the judgment under appeal prior to the hearing beginning.
Like Court of Protection hearings, Court of Appeal hearings can also be subject to reporting restrictions – although these are comparatively few in this case (as explained in this blog). However, the identity of the treating clinicians is protected by a Transparency Order. Given this hearing was live-streamed, and there was therefore no list of attendees, the judge began the hearing by way of clarifying that the treating clinicians are not to be identified. It is also reiterated in the published judgment.
An appeal cannot be made on the basis that a party thinks a previous judge got it wrong (I imagine in many cases there’s a party that think the judge is wrong). According to the government’s website, a party can only appeal if a decision was wrong because of a procedural or legal error in the original judgment. New evidence may also be ground for appeal, and this appeal took into account all three.
This meant that there were lots of legal and procedural issues raised. I will not cite every legal reference made, but anybody interested can find them in the published judgment or by watching the hearing online.
On admitting new evidence
Before getting to the grounds of appeal, the judges took some time to consider whether or not to admit new evidence that had been submitted late the day before. First, there was a letter from the sister of Lewis Roberts – a young man who had been incorrectly diagnosed with brain stem death, and who is making a significant recovery. Second, there was a new video that Andy’s family stated showed him moving his hand – something that they argue is incompatible with a diagnosis of brain stem death. Finally, there was an email from an expert that the family had found, who had agreed to examine Andy.
The judges rose to look at the evidence, and in the brief break I searched online for Lewis Roberts’ name. There is a plethora of articles about his continuing recovery (e.g. “’Miracle’ teen recovering after Leek van crash”) and I could understand why Andy Casey’s family would cite his case as proof that brain stem testing is not a reliable means to diagnose death.
However, as was later made clear in the judgment (at paragraph 29), the case of Lewis Roberts is very different from Andy Casey’s: he recovered after four days, and in that time period he had an operation.
Nevertheless, the judges agreed to “admit the statement of Ms Roberts out of respect for her and her family, even though it is doubtful whether it strictly meets the test for the admission of evidence on appeal”. However, the judges declined to admit the video evidence and the email from another doctor because “it adds nothing to information that was already before the judge or this court”.
Five grounds of appeal
Very early in the hearing, Jackson LJ remarked that “it seems to me there are 5 issues”, which he listed and reproduced in the published judgment. I cannot be sure whether he did this solely to ensure he had understood the written submissions or whether he also did this to assist any public observers in following the rest of the hearing. Either way, it certainly did make the hearing easier to follow than it would have been amidst all of the legal technicalities.
I am going to take each of grounds of appeal in the order that the judge identified. Counsel for Andy’s mother agreed with grounds 2-4 and appeared to align himself with 1 and 5 but did not speak in depth on them.
It is worth pointing out that in their written and spoken judgment, the judges made it clear that “amid all the legal arguments, we have not lost sight of how much Mr Casey’s family and friends care about him”. I thought that this was a very clear and important reminder of the human side of this case, and kept Andy (and his family) at the centre – despite all of the complex legal arguments.
Ground 1: The proceedings were not fair because the judge refused to allow the family to instruct another expert
It was argued by Counsel for Andy’s brother and sister that, because they objected to the diagnosis of death, “it was logical for them to seek a second opinion”. He argued that it was “wrong in principle” for this to be refused because it was central to the question before the Court: namely, is Andy dead? Without this expert, they had not been able to make their case. The result was to “tie their hands”.
The judges refused this ground of appeal because “the test for the admission of expert evidence is whether it is reasonably required to determine the proceedings”. However, in this case, multiple opinions had been sought from within, and outside of, the treating Trust. Furthermore, the family had received advice from another doctor but they did not call him as a witness.
The judges therefore stated that “this was not a request to be allowed to obtain a second opinion…In reality, the application was made in the hope that something else would turn up”.
In essence, they were satisfied that the Trust had sought multiple opinions to safeguard Andy against a potentially erroneous declaration of death.
Ground 2: The proceedings were not fair because Mr Casey was not represented by a litigation friend
In the initial proceedings in the Court of Protection, Mr Justice Moor had added Andy as a party, and appointed the Official Solicitor as his litigation friend.
The Official Solicitor argued that this was of no effect because she had not agreed to act, though MacDonald J did invite the Official Solicitor to act as Advocate to the Court. The Official Solicitor further submitted, as explained in MacDonald J’s judgment, that it is not ordinarily the case that a person is added as a party in instances when they have been declared dead following testing.
The argument from Counsel was that the Court had effectively pre-judged the fact that Andy was dead – which was wrong because this was precisely the matter that the Court had to determine. This, it was argued, was a violation of his Article 2 (right to life) and Article 6 (right to a fair trial) rights.
The judges refused this ground of appeal too. They stated that “the argument is in any case a purely formal one and there was no serious procedural error warranting intervention by this court”. The participation of his family and “the surveillance of the Official Solicitor as Advocate to the Court” ensured sufficient safeguards were in place. Furthermore, this was an issue that MacDonald J addresses in his judgment.
Ground 3: The judge was wrong in law to treat brain stem death as the legal test for death
Andy was declared dead as a result of brain stem testing. Counsel for Andy’s mother reminded the Court (and informed those observers, like me, who didn’t know) that the brain stem test is formed of two parts. First, there are bedside tests, such as testing for responses to stimuli. Second, there is an apnoea test, which involves ventilation being withdrawn to see if the patient will attempt to breathe independently.
Counsel went on to argue that the apnoea test was contraindicated by the presence of a spinal injury, though this seemed (at least to me) to be dismissed out-of-hand during the hearing because further opinions had been sought on the nature of his spinal injury. It had been agreed that the nature of his spinal injury was not such that it would make the results of the apnoea test invalid.
Regardless of this, given that there is not a statutory definition of death, it was wrong (the Applicants submitted) for the judge to treat brain stem death as if it were a legal definition. The judges did acknowledge there is a lack of statutory definition, but they pointed out in their judgment that the approach “reflects a widely accepted consensus in this country for almost 50 years and that brain stem death, correctly diagnosed, is the proper indicator of death in the legal sense.”
They also considered the fact that the Code of Practice for brain stem testing is being reviewed, and that Lewis Roberts had been declared dead incorrectly. However, they did not think either fact had relevance to this case. First, MacDonald J had confirmed with the consultant chairing the review that the content of that review did not affect this case. Second, the circumstances of Lewis Roberts’ recovery were very different: “he revived four days after his injury and following a head operation: the position of Mr Casey is sadly very different”.
Ground 4: The judge was wrong in law to use the civil standard of proof when making a finding of death
This argument was quite easy to follow. Given the seriousness of the issues to be decided – namely, whether somebody is dead – the court should use the criminal, rather than civil, standard of proof. That is, the judge must be confident beyond reasonable doubt that somebody has died, rather than somebody has died on the balance of probabilities. Both Counsel put forward that MacDonald J was required to engage in ‘anxious scrutiny’ of the issues, and this would be achieved by applying the criminal standard of proof.
In their judgment, the judges acknowledge that the idea of arriving at a decision after anxious scrutiny “is not so much a principle of law as a statement of the obvious”. They had no doubt everybody treated this “as a question of profound importance”. Nevertheless, they ruled that MacDonald J was right to apply the civil standard of proof.
Furthermore, they also ruled that “in reality the evidence went well beyond” the civil standard “and would in my view have satisfied any standard of proof”. This is because Andy had not just undergone brain stem testing: he had also undergone various brain scans, in an attempt to demonstrate to his family the accuracy of the diagnosis.
Ground 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
The judges succinctly put it in their judgment that this argument was that “a best interests assessment should always be carried out to ensure that individuals are not denied essential legal protections”. In my mind, I connected this argument with Ground 2, concerning Andy’s lack of litigation friend.
During the hearing, Asplin LJ probed this suggestion further. She asked Counsel whether what they proposed was entirely circular: that “even taking the best interests route, you arrive at the same place – whether it’s in his best interests to ventilate…Are they not, in this case, entirely bound up?”
Counsel for Andy’s brother and sister disagreed, arguing that there was doubt in this case and therefore the most appropriate option was to make the hearing one concerning best interests rather than declaration of death. Further probing from Asplin LJ made it clear that Counsel felt this approach circumvented the need for the court to determine the “controversial” issue of whether somebody is dead.
Again, this ground of appeal was refused. In the case of Re M, which was referred to throughout the hearing, Sir Andrew McFarlane ruled it was “plainly correct” that a best interests assessment need not be undertaken where the weight of the medical evidence finds that the person has died.
Given the rejection of all of these grounds, the judges concluded that: “The evidence before the judge that Mr Casey had died was complete, reliable and compelling. It overwhelmingly led to the conclusion that he was no longer alive and a declaration of death was the only decision the judge could properly have made. I recognise that this outcome is hard for Mr Casey’s devoted family and friends, but I would refuse permission to appeal”.
Concluding remarks
At the end of the hearing, there was talk of the fact that Andy Casey’s family would lodge an appeal with the European Court of Human Rights. Celia Kitzinger and I were not able to find any information about this on the Court’s website, and I therefore got in touch with one of the barristers, who confirmed that an application was made but it is understood that this was not accepted.
This means that there are no further legal avenues for Andy Casey’s family to turn to, and it is likely that his organ support has now been withdrawn.
This case sheds light on the difficult issue of ‘brain death’ and the wider question of what it means to be “dead” – explored in detail by Victoria Butler-Cole and Benjamin Tankel here: “Brain death and the law”.
When I first heard about this case, I was deeply moved by it: my own brother is around the same age as Andy Casey was, which was a connection I couldn’t shake from my mind. This case has been desperately sad, the pain of which I cannot begin to imagine.
I hope that Andy’s family and friends can find some comfort in his memory.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.
*Author’s note: Quotations not in italics are taken from the published judgment of Lord Justice Peter Jackson and Lady Justice Asplin, unless otherwise stated (St George’s Hospital NHS Foundation Trust v Andy Casey and others [2023] EWCA Civ 1092). Quotations in italics are from my own contemporaneous notes taken during the hearing.
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