Claire Watson KC appeared on behalf of the Official Solicitor in the Court of Appeal in the case of St George’s Hospital NHS Foundation Trust v Andy Casey and others [2023] EWCA Civ 1092, in which the family of a young man sought permission to appeal the declaration of death made by MacDonald J.

This tragic case concerned Andy Casey, a 20 year old man who was receiving organ support, including mechanical ventilation following an assault which left him with a catastrophic brain injury and minor fracture of the cervical spine.  Due to a  deterioration in his condition after four days in a specialist Neurointensive Care Unit it was suspected that his brain stem had died.  Pursuant to an order of the Court of Protection brain stem tests were performed in accordance with the criteria set out in the 2008 Code of Practice for the Diagnosis and Confirmation of Death issued by the Academy of Medical Royal Colleges.  The result was that death was diagnosed by the first test performed at 11.51pm on 16 July 2023 and confirmed by a second test at 12.17am on 17 July 2023.

The diagnosis of death was challenged by Mr Casey’s family who considered that they were seeing signs that he was not brain stem dead, including breathing on his own initiative on occasions and movements which they believed were purposeful.  The clinicians at the hospital did not agree and considered the movements to be spinal cord reflexes and the perceived breathing to be artefactual responses by the ventilator.

Due to an ongoing disagreement between the hospital and family, proceedings were issued by the NHS Trust seeking a declaration that Mr Casey had died on 16 July 2023 and it was lawful to cease all forms of medical intervention. A hearing took place in the High Court on 8 September 2023 and the court made the declarations sought by the Trust (St George’s Hospital NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam)). Emma Sutton KC appeared on behalf of the Official Solicitor as Advocate to the Court.

The family sought permission to appeal the declaration made on the following grounds:

1. The proceedings were not fair because the judge refused to allow the family to instruct another expert.
2. The proceedings were not fair because Mr Casey was not represented by a litigation friend.
3. The judge was wrong in law to treat brain stem death as the legal test for death.
4. The judge was wrong in law to use the civil standard of proof when making a finding of death.
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 Court of Appeal refused permission to appeal on all grounds.  The judgment can be found here.