A London NHS Trust v DT: Brain stem testing and best interests

In A London NHS Trust v DT & Ors [2025] EWCOP 36 (T3), the Court of Protection faced an unprecedented question: where should brain stem testing take place when clinical opinion suggests death has occurred, but the patient's family wishes testing to be conducted in another jurisdiction?

DT, a 42-year-old woman, collapsed at an airport in August 2025 after suffering multiple pulmonary emboli during a long-haul flight. Following cardiac arrests and resuscitation attempts, she sustained catastrophic hypoxic-ischaemic brain injury. After initial treatment abroad, her family transferred her to a London hospital in September 2025.

The clinical team concluded DT was brain stem dead and sought to perform testing according to the Academy of Medical Royal Colleges 2025 Code of Practice. However, DT's family opposed testing in the UK, requesting instead that she be transferred to a hospital in Country W, where she was born, raised, and had lived for the past decade.

The legal framework

Mrs Justice Theis emphasised the clarity of the applicable legal framework. Until brain stem testing confirms death according to the Code, an individual remains legally alive—a principle established in M (Declaration of Death of Child) [2020] EWCA Civ 164 and St George's University Hospitals NHS Foundation Trust v Casey [2023] EWHC 2244 (Fam).

Where disagreement exists about testing arrangements, the Mental Capacity Act 2005 governs. The court must determine what is in the person's best interests, considering their wishes, feelings, beliefs and values alongside all relevant circumstances.

The Trust initially sought what it termed a "case management determination" directing testing in London. This was rejected as an abdication of the court's duty to determine the central issue between the parties.

Best interests assessment

The evidence of DT's connection to Country W proved compelling. She had returned there for medical treatment in 2016, had discussed with family her wish to be in Country W if anything happened to her, and maintained strong religious and cultural ties requiring specific death rites and swift burial.

YT, DT's sister, provided detailed evidence about these connections. The court accepted that whilst no specific conversation had occurred about brain stem testing, DT's likely wishes could be ascertained from the wider canvas of evidence about her values and beliefs.

The Trust argued that continuing treatment it considered futile, and the inherent risks of medical transfer, weighed against repatriation. Mrs Justice Theis found this position "perplexing," noting the Trust proposed continuing the same treatment post-diagnosis to enable transfer to Country W for withdrawal of care.

The Trust also raised concerns about wider implications and potential resource pressures. These were dismissed as lacking substance, particularly given this was the first such case in over a decade of the lead clinician's experience.

The court determined it was in DT's best interests to be transferred to Country W for brain stem testing. The evidence of her wishes, feelings, beliefs and values outweighed the risks of transfer and the short period of continued treatment.

Mrs Justice Theis clarified that where consensus cannot be reached, clinicians should follow the 2025 Code's processes, undertake a best interests decision under the MCA 2005 Code of Practice, and, if necessary, seek a timely Court of Protection determination. The court is well-equipped to resolve such applications without undue delay.

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