A London NHS Trust v DT (by her litigation friend the Official Solicitor) and YT [2025] EWCOP 36. 21 October 2025, Judgment here
Just occasionally a judgment from another jurisdiction can make you scratch your head very hard if you try and look at it through coronial eyes. This recent decision from the Court of Protection around brain stem testing and the neurological diagnosis of death has managed to leave your blogger with full blown dermatillomania.
But let’s first start with Schrödinger’s cat – a 90 year old thought experiment exploring superpositions in quantum mechanics (an entirely probabilistic system, which bears little relationship to the generally understood deterministic laws of physics that human life generally operates under). Radioactive atoms are considered by some quantum physicists to be in two states at once: decayed and not decayed and only switching to one of those to states when observed. To test this quantum theory Schrödinger sealed his theoretical cat in a box along with some theoretical unstable atoms and a batch of poison, thereby linking poor kitty’s fate to a random subatomic event. In the paradox the cat is to be simultaneously considered both alive and dead at the same time until the box is opened and its state is observed.
BUT NO, I hear you scream, life is deterministic not probabilistic, and therefore the cat is either alive or dead even before one looks in the box. On looking you are simply observing what already has occurred. It’s not that the cat is both dead and alive, it’s just that we don’t KNOW if it’s dead or alive. Of course that was exactly Schrödinger’s point, as he sought to diss his fellow physicists with his fluffy feline paradox.
On one view of this present case, the law seems to have led the judge to approach the decision making regarding the unfortunate woman patient as if she too were a sub-atomic particle within a probabilistic system, who could be both alive and dead at the same time.
The facts
The subject of this case, DT was a healthy 42 year old woman who suffered a significant and catastrophic brain injury as a result of pulmonary emboli developing when on a flight to another (unnamed) country. DT was found to be unresponsive and her pupils were non-reactive to light. A CT scan of her brain showed hypoxic-ischaemic brain injury. Her neurological state remained unchanged although she did not receive any long acting sedative drugs; she had a Glasgow Coma Score of 3, with pupils fixed and non-responsive to light, together with loss of corneal and gag reflexes.
When hospital treatment at her destination had not led to her recovery DT was transferred by her family to a hospital in the UK. After some more tests and observations there[1] the clinical team looking after DT believed she was probably brainstem dead.[2] Indeed by the time of the court hearing, although DT’s circulation was being maintained by ongoing mechanical ventilation and other intensive care interventions, the clinical opinion was that she was “certainly dead” according to five medical consultants. [3]
The legal definition of death
Death is a process rather than an event, with different organs, tissues and cells ceasing to function and beginning to decay at different rates. It is therefore necessary to be able define a point in this process where death can be accurately pinpointed. In the UK one is considered dead where there is permanent loss of the capacity for consciousness, combined with permanent loss of the capacity to breathe.
Death might be ‘diagnosed’ in three ways: by somatic criteria (following overwhelming physical trauma), circulatory criteria (following cardiorespiratory arrest) or by neurological criteria (when death follows a devastating brain injury, but where the circulation is being maintained by mechanical ventilation and other intensive care interventions). Death by somatic and circulatory criteria can be confirmed by many different professionals (or even at times by lay witness evidence). However, as a matter of UK law, neurological death can only be ‘diagnosed’ by doctors, and only if brain stem death has been established [4].
Numerous legal authorities have confirmed that the brain stem testing must be performed according to the code set down in the Academy of Medical Royal Colleges 2025 Code of Practice for the Diagnosis and Confirmation of Death. Therefore, regardless of the unanimous clinical ‘certainty’ on the part of her doctors that DT was already dead, because the required brain stem testing had not been conducted as a matter of law DT had not yet died.
DT’s family accepted that brain stem death was the legal test for diagnosing death, and they agreed that the neurological testing accoridng to the AMRC code needed to be done. However her family did not agree that the doctors in London should perform those tests. Rather her family wanted her flown to another hospital in a third country (‘Country W’) so that the necessary brain stem testing might be conducted there and, if conclusive, her organ support then withdrawn. DT was said to have a strong connection with Country W, she had been based back there for 10 years, all her family lived there and, in accordance with her religious and cultural beliefs, the rituals following death required burial there within a very short period following death. The court was told that her medical transfer to Country W could take place within days and the brain stem testing could take place within 48 hours of her arrival.
Best interests considerations
If someone is alive but unconscious so that they lack capacity to make a decision, then under the Mental Capacity Act 2005 their ‘best interests’ must be taken into account when any decision is made about their health and welfare. That best interest analysis is never simply a matter of medical best interests, but includes the person’s current and past wishes, together with their beliefs and values. The evidence in this regard seemed to all point one way, establishing the many strong connections DT had with Country W. It was hard to see why it would not be her wish to be considered to have died there.
The judge’s decision
Mrs Justice Theis (the Vice-President of the Family Division) considered that regardless of the medical opinion, as DT was not yet legally dead then as a judge of the Court of Protection she had the jurisdiction under the Mental Capacity Act 2005 to make the disputed decision and decide in which country the brain stem testing should be done. In determining that issue the judge emphasised that she was guided only by what was in DT’s best interests.
The judge held that the clincial futility of providing DT with ongoing treatment and organ support did not outweigh the ‘compelling’ evidence of DT’s connection to Country W, and so it was in her overall best interests to be transported to her home country so that the brain stem testing might be done there. If those tests confirmed brain stem death (as all apparently anticipated) then, like Schrödinger’s temporarily immortal cat, DT would not be deemed in law, to have died in the UK, but she would be considered ‘to die’ after her arrival back in her home country. The order authorising her transfer abroad was therefore made.
Commentary
As is required in this Court’s jurisdiction, this was person centered decision, putting the views, wishes and values of DT at the heart of the case. Notably the doctors had raised no objection to DT being flown home for burial, rather their objection was to them being prevented from diagnosing her death before she left England. It was argued by the NHS Trust that the fact that the patient might be in a position to be returned to their home country was not a good reason not to attempt to diagnose and confirm their death in an accurate, standardised and timely manner in the UK. The doctors wanted Schrödinger’s box to be opened now.
From a coronial stand point one might have some sympathy with that position. Preventing the UK doctors from undertaking the confirmatory tests they wished to carry out and potentially ‘diagnose death’ might be compared to Nelson holding the telescope to his blind eye. The doctors considered that it should be known if their patient was alive or dead and they were being prevented from finding out. If the testing was done and DT was indeed confirmed as brain stem dead then the question of her best interests would be irrelevant – the Court of Protection does not have any jurisdiction to make any welfare decision in respect of the deceased.
In a jurisdiction where decsion making must be guided by the bests interests of the patient at the heart of the case it is perhaps unsurprising that the there was no consideration within the judge’s reasoning of any wider public interest in knowing whether a person is dead or alive. That may be because there was no suggestion in this case that the catastrophic event DT had suffered was anything other than naturally occurring. But had DT’s initial brain injury been traumatically induced, or had its cause been unascertained, then without any confirmation of her legal death whilst in the UK the coroner’s jurisdiction could not have arisen [5]. At very least, had this case involved a traumatic brain injury then the need to give a coroner the jurisdiction to investigate the death would one hopes be another factor to weigh up when assesing the person’s best interests.
The doctors’ additional concern was whether in future they would be required to have consent before they would be permitted to attempt to diagnose their patients as dead in accordance with neurological criteria. The judge’s answer is clear: whether to conduct brain stem testing of a patient is a best interests decision, in the event of agreement not being reached about whether to carry it out, then proceedings in the Court of Protection should be issued to determine what is in the person’s best interests.
Perhaps because disputes such as arose in this case are so extremely rare the judge seemed untroubled by references to the gap between the clinical and the legal position in this case. Regardless of the clinical evidence the judge proceeded on the basis that DT was still alive.
There is an understandable need for legal certainty about something as important as death. What this judgement affirms is that the relevant question when diagnosing death by neurological criteria is not ‘is this person probably brain stem dead’, but rather ‘has the common law requirement for diagnosing death, ie an absence of brain stem activity on formal brain stem testing, probably been established’. The necessity for framing the question in this latter way is to ensure the diagnosis of death is both standardised and accurate. The need for such diagnostic rigor is abundantly clear if one considers that organ retrieval or an autopsy may then follow. Before brain stem testing has been carried out on a mechanically ventilated patient the only legally available answer to the question “is this person alive or dead?” must be “we just don’t know yet”. The law considers the person to be alive whatever the doctors believe would be found were Schrödinger’s box to be sprung open.
The issue the judge was being asked to decide was not whether to do the tests, but where to do them. She accepted that these tests could and would take place abroad. Given DT had already been thought by the doctors to be probably brain stem dead for some time, a few more days’ delay to allow her transport home to her family before death was formally confirmed was of little real consequence. The judge was quite untroubled by what Schrödinger might have thought of it all, it was an immensely compassionate decision to not (yet) open the box.
Katie Gollop KC and Claire Watson KC of Serjeants’ Inn Chambers acted for parties in this case.
References
[1] An EEG showed no cerebral activity. An MRI of her head showed changes consistent with late stage hypoxic ischemic injury and brain stem coning. An MRI of her entire spine showed severe brain stem and spinal cord hypoxic ischemic insult. A CT angiogram, which is an ancillary test for diagnosing death, was undertaken. She remained unresponsive to all stimuli, made no spontaneous movement, could not spontaneously breathe, her pupils remained unresponsive to light. She did not cough on deep suction and her corneal responses were absent.
[2] An internal second opinion also confirmed the conclusion of the clinical team
[3] The witness evidence was that “It is our collective professional opinion that unfortunately DT is dead. We do not suspect that; we are certain of it”. …. “We are deeply sorry to have to say that mechanical ventilation, invasive blood pressure support and the hormonal and other injections and interventions we have continued to provide are supporting her organs but not sustaining DT’s life. Those measures do not become life-sustaining simply because the confirmatory tests according to the Code have not been performed and they do not change the fact that she is brain stem dead”.
[4] see M (Declaration of Death of Child) [2020] EWCA Civ 164
[5] Or at least not without stretching s1(4)(a) CJA 2009 way beyond its reasonable territorial boundaries.