Diagnosing Death: Clinical and Legal Considerations

Webinar | Thursday 27 November 2025 | 12:30 - 13:30 | 1 Hour

Where a person has suffered a catastrophic illness or injury, it can reach a point where the clinical team consider that, sadly, there is nothing further that can be done and the person is deceased. This can, understandably, be difficult for family and loved ones to contemplate – particularly where, with life-support, the person’s heart continues to beat and they appear to be breathing.
 
In those circumstances, there may be a dispute about whether the person has in fact died. Determining death is important – clinically, ethically and morally.
 
Is there, therefore, a legal definition of “death” – and what happens if this is disputed?
 
Join us for this session where Hannah Taylor will discuss the clinical and legal aspects of diagnosing death with:

• Dr Dale Gardiner an Intensive Care Consultant at Nottingham University Hospitals NHS Trust Chambers
• Victoria Butler-Cole KC of 39 Essex Chambers

We will discuss:

• What is the clinical definition of “death”?
• What are the three diagnostic criteria that can be used to diagnose death?
• A closer look at the Neurological Criteria to diagnose death:
  • What are the tests?
  • When are you clinically deemed deceased when using the Neurological Criteria?
  • Is “brainstem death” the same as “death”?
  • Can you use the Neurological Criteria for a person any age?
  • The role of ancillary investigations and when to use them?
  • Are there any circumstances where it would not be possible to undertake the Neurological Criteria to diagnose death?
  • Do the Neurological Criteria have to be performed within a certain period of time, and if not, will they “not work”? 
• The 2025 Code of Practice for the Diagnosis and Confirmation of Death – what has changed
• Considering relevant case law:
  • What is the correct legal procedure to follow if there is a dispute about whether:
    • to undertake testing to determine if a person has died:
      • for a child?
      • for a young person (16 years old +) or adult?
    • a person has died and if life-support should be withdrawn?
• Should Court of Protection and High Court proceedings be issued simultaneously? If yes, do you have to issue both application forms?
• Which procedure rules apply?
• Is the person a party in these proceedings? Is the person represented?
• How does this differ to a best interest decision about whether to continue life-sustaining treatment?
• Is it lawful to continue to provide treatment where a person has died?
• What is the date of death?
  
  • Date of the brain stem testing? or
  • Date of the court’s determination?
• If a Transparency Order in the Court of Protection, or a Transparency Order in the Family Court, or a Reporting Restrictions Order in the High Court, is made – what is the impact at any subsequent Coroner’s investigation:
  • Can documentation from the court proceedings be disclosed to the Coroner?
  • Can the proceedings be referred to in the inquest? Would that be a breach of any reporting restrictions order?
  • What is best practice in terms of reporting restriction orders in these cases?

As well as his practice in Intensive Care Medicine, Dr Gardiner Co-Chaired the Academy of Medical Royal Colleges’ Code of Practice for the Diagnosis and Confirmation of Death published in January 2025, is an Associate Medical Director (Deceased Organ Donation) for NHS Blood and Transplant and a Board Member of the Faculty of Intensive Care Medicine.
 
Victoria is a leading barrister in health and social care, a mediator and also sits as a Deputy High Court Judge.