Diagnosing death,best interests,consent and the law

To the Editor,

The UK courts have once again explored some of the complex medicolegal issues surrounding the diagnosis of ‘Death by Neurological Criteria’ (DNC). In A London Trust v DT and YT ([2025] EWCOP 36 (T3)), the Court of Protection considered the case of a woman in whom clinicians strongly suspected DNC following a prolonged cardiac arrest. The specific question for the Court concerned the location of where DNC testing should be undertaken—either in the UK (as the Trust proposed), or following repatriation to another country (as the family wanted). The Court ultimately decided that it was in the patient’s best interests for her to be repatriated abroad prior to DNC testing and the subsequent withdrawal of her life support.

The ruling is notable for a number of reasons. It is the first instance in which the recently updated ‘2025 Code of Practice for the Diagnosis and Confirmation of Death’ (Academy of Medical Royal Colleges. A Code of Practice of Practice for the diagnosis and confirmation of death: 2025 Update. January 2025. https://www.aomrc.org.uk/wp-content/uploads/2025/01/Code_of_Practice_Diagnosis_of_Death_010125.pdf) has been formally acknowledged and endorsed in court. Previous versions of these guidelines had been confirmed by the courts as the authoritative medical consensus on the definition and diagnosis of death in the UK. This latest ruling reassures clinicians that the updated Code will continue to be adopted in future cases. It is also the first legal case in which the location of DNC testing (but not the necessity for testing per se) was debated at length.

The Trust’s evidence illustrates the moral unease which may arise for clinicians as they continue to care for a patient whom they strongly suspect has died, but which has yet to be definitively confirmed in accordance with the Code of Practice. The carefully reasoned judgment clearly sets out the sequence of steps required in such cases: (i) application of the Code of Practice DNC tests to confirm death; but if this approach cannot be accepted by the family, then (ii) assessment of the patient’s best interests as per the Mental Capacity Act 2005; and if this leads to ongoing disagreement, then (iii) an urgent application to the Court of Protection to adjudicate the patient’s best interests. This judgment clearly emphasizes the established legal principle that right up until the formal confirmation of death, the patient still has interests to consider (and these are not limited to best medical interests (Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591 [39])); but that once death has been established as per the Code, consideration of interests is no longer relevant (Re M (Declaration of Death of Child) [2020] EWCA Civ 164 [96]).

Finally, this judgment still does not directly address the issue of a necessity to obtain family consent prior to DNC testing, which for now remains unresolved by the case law. The 2025 Code is silent on the issue. This ruling (in-keeping with previous judgments; Re M (Declaration of Death of Child) [2020] EWCA Civ 164 [96]; St George’s University Hospital NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam)) appears to split hairs: it does not require consent for DNC testing, but does go on to describe the process required via the Court of Protection should the family disagree with the proposal to conduct the tests. For now, this appears to leave clinicians treading a very fine line with families when discussing, proposing or informing them about DNC testing.

Yours sincerely,

Liam Scott North Bristol NHS Trust, Bristol, UK