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Re A (A Child) [2022] EWHC 1873 (Fam)

Application by NHS Trust for declaration that brain stem death had occurred in a child such that it would be lawful to cease ventilation and medication adjourned after the hospital rescinded its clinical ascertainment of death.

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As acknowledged by Hayden J in his ex tempore judgment, this case involved an entirely unforeseen change of circumstances, "unprecedented in the experience of all in this court".

The case concerned A, a boy at the time 3 months of age. On 10th June 2022, A was found limp with abnormal breathing. Around the time that an ambulance was called, A suffered a cardiac arrest. By his arrival at Hospital, it is thought that there had been a period of 30 minutes without spontaneous circulation. A was stabilised and taken to Evelina Children's Hospital, where he was admitted. X-rays were undertaken which showed multiple fractures through his skeleton, significant fractures to his ribs, and bilateral and multifocal retinal haemorrhages.

Guy's & St Thomas' NHS Foundation Trust sought a declaration that brain stem death had occurred in A such that it would be lawful to cease ventilation and medication. A had brain stem testing on a number of occasions. On 17th June 2022 the first brain stem test gave no response. Further brain stem tests were repeated on the 19th June 2022 and no brain stem responses were elicited in either set of tests. A was ascertained to have died at 13:15 on 19th June 2022. More tests were carried out at the parents request on 22nd June 2022 and still elicited no brain stem response.

Overnight between 2nd and 3rd July 2022, an experienced nurse contacted a Paediatric Intensive Care Consultant to say that, notwithstanding that A's death had been recorded, she believed she had seen A both move and attempt to breath. It became clear A was indeed breathing.

A began to show the capacity to breath in a way described as "consistent, shallow and irregular". The hospital immediately rescinded the clinical ascertainment of death and informed A's parents.

Given the 'unfamiliar territory', Hayden J adjourned the proceedings for further expert evidence to consider A's circumstances "neurologically and more generally". Hayden J warned that "there must now be a cautious and reflective response to what has occurred in order to assess and gauge its significance for A and indeed, potentially, for others".

Application for a DNAR order

In the only contentious issue which remained for the Judge to resolve, the NHS Trust invited Hayden J to make a declaration confirming that it would be lawful and in A's best interests not to resuscitate in the event of cardiac collapse.

In the highly unusual circumstances of the case, Hayden J refused to make the order. Despite A's neurological status being deeply compromised, his condition was otherwise medically stable. Additionally, Hayden J did not believe the evidence established that it would never be possible for A to go home, even if that were only mean to die at home with his parents. As such, the Judge was clear that the care A was receiving had a real objective and could not be described as futile. While Hayden J refused to make a DNAR order at this stage, he was clear that this interim decision may be subject to review once further expert evidence is received.

Case summary by Daniel Taylor, Pupil, Coram Chambers

For full case, please see BAILII