Manchester University NHS Foundation Trust v Midrar Namiq
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE |
| Judgment Date | 28 January 2020 |
| Neutral Citation | [2020] EWHC 180 (Fam) |
| Docket Number | FD19P00674,Case No: FD19P00674 |
| Court | Family Division |
| Date | 28 January 2020 |
[2020] EWHC 180 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven
Case No: FD19P00674
and
Mr Neil Davy (instructed by Hill Dickinson LLP) for the Applicant
Ms Maria Stanley (instructed by CAFCASS) for the First Respondent
Mr Bruno Quintavalle (instructed by Barlow Robbins) for the Second and Third Respondents
Hearing dates: 20, 21 and 22 January 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Honourable
This is an application by Manchester University NHS Foundation Trust (the Trust) for declarations as follows;
Midrar Namiq has no capacity to consent to, to refuse, or to make decisions about the medical treatment he should receive, namely the administration of mechanical ventilation.
It is lawful for Manchester University Hospital NHS Foundation Trust to make arrangements for his mechanical ventilation treatment to be withdrawn to allow him a kind and dignified death.
The Trust was represented before me by Neil Davy, the First Respondent, Midrar, through his Guardian (John Power) by Maria Stanley of CAFCASS, and the Second Respondent (the Father) and the Third Respondent (the Mother) by Bruno Quintavalle. The Third Respondent had the assistance of a translator. There was some lack of clarity after the hearing as to whether Mr Quintavalle had been representing the Mother. However, as there was no difference in position before the court between the Mother and the Father, and Mr Quintavalle assured me by email after the hearing that he had been representing the Mother at the substantive hearing, I will record him as having done so. I am very grateful to counsel and Ms Stanley for the sensitive way they presented a very difficult case.
The facts of the case are tragic and one can only have the greatest sympathy for what the parents are going through. Midrar was born at full term, but his Mother's membranes had ruptured on the way to hospital and there was a cord prolapse, which meant that oxygen was cut off to his brain. He had an undetectable heart rate and no respiratory output when born, his heart was restarted but he has been on a ventilator at the Neonatal Intensive Care Unit (NICU) since his birth. Three brain stem death tests dealing with death by neurological criteria (DNC) have been carried out, the first on 1 October 2019 and each has concluded that Midrar is brain stem dead. The Trust wishes to take him off the ventilator and allow his life to come to an end, whereas the parents wish him to remain on the ventilator.
The issue I have to decide is whether Midrar is dead, according to DNC as set out in the relevant clinical guidance, and therefore the ventilator can be removed. The Trust argues this is not a best interests analysis under the inherent jurisdiction, because if Midrar is dead then best interests do not arise. Both Mr Davy and Ms Stanley agreed that if I concluded that Midrar did not meet the DNC then it would not be appropriate or fair on the family for me to go on to consider best interests, as a separate legal test. But, Mr Power in his report to the court had analysed Midrar's best interests and concluded that it was in Midrar's best interests that the ventilator should be removed and his life come to an end. Mr Quintavalle argues that best interests are relevant to whether I make the declarations sought.
The factual position
Immediately after Midrar was born he was successfully intubated and a slow heart beat was heard. He was transferred to the Neonatal Intensive Care Unit (NICU) and has remained there since. I would like at this stage to pay tribute to the care he has received and the commitment of the staff in the Unit who do what must be an enormously difficult and emotionally draining job. From the evidence that I have heard it appears that Midrar's heart and organs have continued to function in large part because of the expert care he has received from staff in the most difficult of conditions.
Midrar was diagnosed with severe hypoxic ischaemic encephalopathy caused by the loss of oxygen to the brain during his birth. An EEG was carried out on 19 September and that found “CFM [continuous electronic fetal monitoring] severely abnormal … no regular breathing”.
Discussions commenced with the parents from 21 September about stopping the intensive care support. The parents at that stage, and subsequently, did not agree, referring to their religious beliefs as Muslims.
. An EEG was carried out on 23 September, which reports that: “This resting EEG shows unreactive very low amplitude diffuse poorly formed much attenuated tracing which contains mainly ECG artefact and movement artefact. No clearly appreciated cerebral activity is noted. No sub-clinical or clinical seizure activity is seen… the findings give strong support to severe diffuse hypoxic encephalopathy”.
On 24 September an MRI scan was carried out which found “ global brain injury affecting entire cortex and deep grey nuclei which would be supportive for prolonged insult…”. At the end of September further discussions were held with the parents, and they are recorded as saying that their Imam had advised them not to take Midrar off the ventilator, and that as long as his heart continues to beat they are hopeful of him getting better.
The first and second DNC tests were carried out on 1 and 2 October by Dr E (consultant neonatologist) and Dr B (consultant paediatrician at the PICU). I will describe the DNC criteria and test below. The testing indicated that Midrar was brain stem dead. A second DNC test was carried out by the same doctors the following day and the results confirmed the findings.
The parents instructed solicitors on or about 6 October. They both remained strongly opposed to turning off the ventilator and said they wanted to take Midrar home so that he could be ventilated at home. The Trust suggested getting an independent consultant from another Trust to review the position, and Dr Y (consultant neonatologist) at Liverpool Women's Hospital was instructed. He examined Midrar and reviewed the clinical notes on 29 October and his opinion states;
“Midrar has no prospect of recovery from his injury. He will not regain consciousness. He will not regain the ability to breathe independently or survive without mechanical ventilation. He has no perception of the world around him and this will not return.
His heart and circulation continues to function only because of the mechanical ventilation he is receiving and the excellent clinical care that he continues to receive. This circulation is sustaining the function of his other organ systems, but his brain is not functioning and will not recover.
Eventually, Midrar's other organ systems and his heart will also die as a consequence of this injury, even if mechanical ventilation is continued. He will eventually develop ventilator associated pneumonia. He will start to develop muscle wasting and joint contractures. It is likely that internal homeostasis will be disturbed as he no longer has central control of endocrine or autonomic functions. It may be possible to manage some of these complications by medical intervention. This is likely to require repeated reintubation of the trachea, chest physiotherapy and airway suction, repositioning and nursing care to maintain skin integrity, multiple blood tests, repeated venous cannulation and antibiotic administration, escalation of ventilator settings and oxygen administration and an increasing number of drugs to be administered.
Midrar is unconscious and has no appreciation or perception of the world around him. I do not believe that he has the capacity to feel pain or distress, so this deterioration will not be distressing for him. It will however, be an undignified and unkind way to allow his death to take place. It will also place a significant burden of distress onto his family and onto those who are caring for him given the futility of these interventions and the associated unkindness.”.
Dr Y gave evidence before me. He explained that he had not undertaken a further DNC test but he had conducted a review of the relevant notes as well as examining Midrar. I set out his conclusions below.
On 4 November Dr B and Dr M (consultant neonatal intensivist) carried out the third DNC test in the presence of the parents and with Dr G also in attendance. The results confirmed the findings of the two earlier tests, namely that Midrar was brain stem dead. A further MRI scan was carried out on 5 November and that concluded;
“catastrophic appearances with interval brain liquefaction including brainstem supportive for brainstem death”.
The Trust made its application to the Court on 29 November and the matter came before MacDonald J on 17 December. He ordered that there be a two day final hearing starting on 20 January, and a directions hearing on 13 January, both before me.
The parents' first solicitors had withdrawn at the end of November because they did not have a legal aid contract. The parents briefly instructed Irwin Mitchell and then moved to their current solicitors on or about 18 December.
The matter came before me on 13 January 2020. I adjourned that hearing because there was no interpreter for the Mother and the matter was relisted on the afternoon of 14 January. At that hearing Mr Quintavalle applied for an adjournment, in summary on the grounds that the Father wanted to instruct an independent expert, the legal aid application had not been determined...
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