Re M (Declaration of Death of Child) [2020]: "No Best Interests to Consider"?

Abstract

When Midrar Namiq was diagnosed brain stem dead at the age of two weeks old, Manchester University NHS Foundation Trust applied for a declaration that it would be lawful to make arrangements for his mechanical ventilation to be switched off. This declaration, which was granted by the High Court, was upheld by the Court of Appeal. Although the child’s parents had protested against the withdrawal of ventilatory support on the basis of their religious beliefs, this point was sidelined by the courts. Rather, they viewed their task solely as one to identify whether the child is brain stem dead, hence clinically (and legally) dead, in accordance with the protocol and criteria established by the Academy of Medical Royal Colleges and the Royal College of Paediatrics and Child Health. This frame of reference has led to the conclusion that no consideration of best interests was necessary, as the concept is only relevant for patients who are still alive but who are incompetent on grounds of mental incapacity and/or age. This paper contends that had the parents’ religious objections been taken into proper account, best interests is potentially a pertinent consideration in this case. Although the outcome may still be the same, it would be reached through a different legal route.