By Claire Martin, 28th June 2026
The key question in this case, which will be back in court on 2nd July 2026, is whether or not a man in his 40s, who had an out-of-hospital cardiac arrest on 24th May 2026 (so about a month ago) is now “brain stem dead”.
What is brain stem death?
Brain stem death is the irreversible loss of all functions of the brain stem – the part of the brain that controls breathing, swallowing and other reflexes (e.g. pupil response to light, gagging, response to pain). In many countries, including England and Wales, this is considered to be “death” in law, even if the heart continues to beat, with the assistance of a ventilator. Some legislatures (but not England and Wales) allow a religious exemption to the neurological criteria for death, and there are a few controversial cases of ‘brain dead’ people being maintained for years (e.g. famously, Jadi McGrath[1]). These cases underscore the importance of correctly testing for brain death and also the ethical concerns that arise in these cases.
A neurological definition of death has been accepted and endorsed by the courts from at least 1992 onwards (Airedale NHS v Bland [1993] AC 789). “In medicine, the cessation of breathing or of heartbeat is no longer death. By the use of a ventilator, lungs which in the unaided course of nature would have stopped breathing can be made to breathe, thereby sustaining the heartbeat. Those, like Anthony Bland, who would previously have died through inability to swallow food can be kept alive by artificial feeding. This has led the medical profession to redefine death in terms of brain stem death, i.e., the death of that part of the brain without which the body cannot function at all without assistance. In some cases, it is now apparently possible, with the use of the ventilator, to sustain a beating heart even though the brain stem, and therefore in medical terms the patient, is dead; “the ventilated corpse”.” (Lord Browne-Wilkinson in Bland).
Clinical guidance about “brain stem death” is provided in the Code of Practice for the Diagnosis and Confirmation of Death by the Academy of Medical Royal Colleges in 2008. It says: “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.”
There’s an NHS page about brain death and its diagnosis here. If someone is brain dead, the damage is irreversible and, according to UK law, the person has died:”It can be confusing to be told someone has brain death, because their life support machine will keep their heart beating and their chest will still rise and fall with every breath from the ventilator.“
The question before the court: Declaring death vs considering best interests
Almost all applications to discontinue mechanical ventilation or clinically assisted nutrition and hydration are decided on the basis of ‘best interests’.
But when a person is already dead (on the basis of neurological criteria), so that the effect of the medical treatment is not to keep the person alive but simply to maintain a beating heart in an otherwise “dead” body, ‘best interests’ decision-making does not apply. All the court can do is make a declaration of death.
In an earlier blog, we reported on a case seeking a declaration of death (Withdrawing treatment after brain-stem death: A case in the Family Division). In that case all the proper tests had been done to make a declaration of death, and the Official Solicitor declined to act (because P must be alive to have “best interests”).
This is the approach also used in previous court cases in the Family Division: “If a patient is brain stem dead, then there are no best interests to consider. Once those criteria are met the patient has irreversibly lost whatever one might define as life…[…] Once a court is satisfied on the balance of probabilities that, on the proper application of the 2008 Code (and where appropriate the 2015 Guidance), there has been brain stem death there is no basis for a best interests analysis, nor is one appropriate. The court is not saying that it is in the best interests for the child to die but, rather that the child is already dead. The appropriate declaration is that the patient died at a particular time and on a particular date without more.” Sir Andrew McFarlane §96 Re M (Declaration of Death of Child) [2020] EWCA Civ 164,
Directions hearing
This was a very short (35 minute) directions hearing before Mr Justice Garrido, sitting in the RCJ on 24th June 2026.
There was no substantive opening summary, and although I asked in the usual way, I was not sent position statements, or any of the three documents recommended for disclosure to COP observers in Gardner (i.e. a case summary or chronology or statement of ‘issues before the court’). This report is as accurate as I can make it in their absence.
Counsel for the applicant Trust (University Hospital Southampton NHS Foundation Trust), Parishil Patel KC, explained that it is the view of the treating doctors that the man at the centre of this case has “suffered catastrophic and irreversible brain injury with permanent loss of brain stem function” – meaning that they believe he meets the criteria for ‘brain stem death’. I gathered that this is accepted by some family members and not by others: they are “split into two camps”. Counsel for the patient (Nageena Khalique KC) instructed by the Official Solicitor reported that “a lot of the information has been discussed and debated albeit not accepted by the family”.
However, one of the tests required by law for determination of brain stem death – the apnea test – has apparently not been performed at the level needed. Counsel for the Trust said that, for that reason, the applicant Trust is not currently seeking declaration of death, but rather, in light of P’s condition and poor prognosis, is applying for a declaration that it is lawful and in P’s best interests to withdraw life-sustaining treatment. This might, however, change.
Test for brain stem death – and why has it not been done
The judge said that he understood the reason for the apnea test not being done was an inability to do it to the relevant standard “because the patient is being ventilated”. Parishil Patel, for the NHS Trust, said that when the relevant tests were being conducted that was the situation, though it might not be the “position forever”.
A second opinion doctor is being engaged to repeat the relevant ‘brain stem’ tests and may perform the outstanding apnea test. The court was informed that two doctors must be present to carry out the tests.
Judge: Everybody realises there are any number of demands on doctors which may result in delay, but, anyway, your Trust is doing the best it can to obtain a second opinion doctor.
Counsel for the Trust: Yes, and everyone recognises the urgency. If in fact [P] is brain stem dead, the quicker we get on to that moment the better, if only because, if he is brain stem dead, we are providing treatment to someone who is dead.
Judge: What does [treating doctor] say about the realistic chance of performing the relevant test?
Counsel for the Trust: Two things – he DOES think the test can be performed and that’s why he is asking the second opinion doctor to do it. There are also ancillary tests upon which the court can rely. There’s a reasonable degree of confidence that the second opinion doctors may well be able to (pause)
Judge: …. opine on the issue of brain stem death.
Counsel for the Trust: The case would then be a different sort of case …. to withdrawal of life-sustaining treatment. […] Is this a declaration of death case or is this a continuation of the case that is currently in the application which is withdrawal of life-sustaining treatment?
What next?
The judge was clearly concerned that some family members might dispute a diagnosis of death, even after expert evidence was obtained. “Any suggestion that additional evidence ON TOP OF the second opinion doctors – that needs to be cauterized at the earliest opportunity. Any additional application for expert evidence would need an application in advance.” [judge’s emphases]
Counsel for the Official Solicitor hoped that “at the next directions hearing we will have some more useful information from the second opinion doctors. That will be pivotal in shaping the case.” She went on “Until we see that evidence, the OS position is cautious, because it may be that further questions need to be asked or different expertise is required. […] I am grateful that an application for further evidence CAN be made within the timescale that’s proposed.”
The judge was hopeful, asking whether it was “realistic, Ms Khalique, to expect any questions of the second opinion doctors to be raised and answered in advance of the hearing on Thursday next week.” She replied that there may be “some questions that become obvious [and it] might precipitate the instruction of an expert“.
The current position of at least some family members means, however, that there is likely to be a contested hearing, with at least one family member opposing the application (whether it’s for treatment withdrawal in P’s best interests or for a declaration of death resulting in treatment withdrawal). Chloe Moran, a solicitor from Irwin Mitchell representing P’s brother, told the court that her client opposes the Trust’s application and wishes to be joined as a party.
The next hearing is scheduled for the afternoon of Thursday 2nd July 2026.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social
[1] Jahi McMath was 13 years old when she suffered a massive haemorrhage following a tonsillectomy on 9th December 2013, in Oakland Children’s Hospital in California. Three days later she was diagnosed as ‘brain dead’ (confirmed by two staff physicians and three independent specialists). Her mother, who did not believe her daughter to be dead since her daughter was breathing (with a ventilator), her heart was beating, and her body was warm, made an application to court for appointment of a “neutral” neurologist to assess the patient’s medical status – that expert confirmed Jahi was brain dead, and the judge had no alternative but to authorise withdrawal of medical treatment. A death certificate was issued, listing her date of death as December 12, 2013. (see “Brain death,”“dead,” and parental denial: the case of Jahi McMath). The family fought a protracted battle to keep her on mechanical ventilation until she “died” (again) in 2018 (see https://edition.cnn.com/2018/06/29/health/jahi-mcmath-brain-dead-teen-death). There’s a thoughtful discussion of the implications of “brain death” here: https://aeon.co/essays/why-medics-and-the-law-clash-with-family-in-brain-death-cases
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