Brain Stem Testing and the Court of Protection – Should P be permitted to be transferred to another Country for Testing?

In a recent decision by the Court of Protection in London NHS Trust v DT [2025] EWCOP 36 (T3) the question of whether it was in the best interests of P to be transferred to Country W for brain stem testing rather than in the UK. This blog will take a deeper dive into the decision and the reasoning behind it.

Background

The case concerned DT, a 42-year-old woman who collapsed at an overseas airport in August 2025 and following this, suffered multiple cardiac arrests and a hypoxic-ischaemic brain injury. After initial treatment in country Z, she was transferred to an NHS Trust hospital in London in mid-September 2025. Following various tests, clinical assessments indicated brain stem death. Following a second internal opinion from Dr C (who was a clinical director for Neuroanaesthesia and Critical Care), the Trust reiterated to the family that there was overwhelming evidence to suggest a diagnosis of death by neurological criteria. Given the disagreement between the family and the Trust, an application to the Court of Protection was required.

Legal issues

Further to the Trust’s application, the Court of Protection had to decide whether it was in DT’s best interests to undergo brain stem testing in the UK or be transferred abroad and consider how to balance medical futility, the risk of transfer and the cultural or religious values against the statutory framework for confirming death.

The Court had previously stated in St George’s University Hospitals NHS Foundation Trust v Casey & Ors [2023] EWHC 2244 that where there is a dispute about whether a person had died, until brain stem testing has been administered in accordance with the 2008 Guidelines and indicated a cessation of brain stem function, it is not possible to say, in law, that the person is dead.

The question for the Court, as set out by counsel for DT’s family was as follows:

Is it in DT’s best interests to be repatriated to Country W in circumstances where the purpose of her transfer is for brain stem death testing to be carried out and treatment withdrawn or is it in DT’s best interests for the tests to be undertaken in the UK?

Key findings

The Court determined that the question needed to be considered in the statutory framework of the Mental Capacity Act 2005. When doing this, Theis J considered that in assessing best interests, the court is not limited to consideration of best medical interests, but also emotional, psychological social issues. In addition to this, where it is possible to ascertain with sufficient certainty what P’s views would be, these should generally prevail.

Further, whilst the Court acknowledged that the Academy of Medical Royal Colleges 2025 Code of Practice for the Diagnosis and Confirmation of Death is an important consideration, it is not the law and the Academy had made that clear by stating that ‘The Code does not [and could not] seek to be a comprehensive statement of clinical and/or legal obligations leading up to and following the death of a person.’

Summary

The Court found that it was in DT’s best interests for her to be transferred to Country W for brain stem testing to be undertaken, despite the fact that it is likely to involve DT continuing to receive treatment that is considered futile and the inherent risks in a complex transfer such that she may die in transit. As regards the futility of continuing the treatment a curious feature of this case is on the Trust’s own case that would continue after the diagnosis of death if the brain stem testing was undertaken here, in order that DT could be transferred to Country W for withdrawal of treatment to take place.

The implications of the findings in this case are as follows: