A judge found that the baby at the centre of the dispute has passed the ‘grey area’ between life and death and suffered total brain failure as he heard of the impact on the doctors who continue to run scans and give the infant life support.
‘Awfully for this child he’s not in the grey area that the difference between the two codes might meet, because the MRI scan shows that his condition had moved beyond what even the American code would accept as part alive,’ Sir Andrew McFarlane said.
Four-month-old Midrar Ali was pronounced brain dead after his brain was deprived of oxygen, leading medics to say it would be ‘unkind’ to keep him alive
‘Where brain stem death is identified, that is death as a matter of law,’ Mr Davy said. ‘Total brain failure has actually occurred, the extra that the US test requires.
‘We have got to the point of establishing, in addition, gross infarction. The UK code doesn’t require that, the US tests suggests that can be helpful in establishing that whole brain element.
Karwan Ali (left) and Shokhan Namiq (right) are pictured outside the Court of Appeal last month as they fight for their baby to be kept alive
‘There’s no personal criticism of the father who knows how any of us would react in the desperate position this man finds himself,’ the judge said.
‘All I’m drawing to your attention for whatever reasons the father has made very serious allegations against the staff and it has made them very anxious and it will place them in a desperate situation.
‘Staff have been psychologically affected by having to maintain care for Midrar when death has been confirmed,’ Mr Davy said.
‘The staff, who are obviously very used to dealing with sick babies, have been put in a very unusual position and that has had psychological effects.
Four-month-old Midrar Ali was starved of oxygen due to complications at birth, with medics at St Mary’s Hospital in Manchester claiming it would be ‘undignified’ and ‘unkind’ to keep him on a ventilator.
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Their solicitor David Foster added: ‘Baby Midrar is in an unusual position: tested as brain stem dead but growing in other facets,’ said Mr Foster, who is based at law firm Barlow Robbins.
She said: ‘Sadly, I have no doubt that Midrar is brain stem dead and meets the DNC criteria.
The medical evidence is both clear and consistent.’
Those tests were ‘entirely supported’ by other evidence that there was no electrical activity in the brain and the stem structure was ‘fundamentally undermined’ which she said was ‘undoubtedly irreversible’.
‘However, all four consultants who gave evidence said there was an obvious and well-known reason for these movements, namely spinal cord reflexes.
‘However, his desire to cling on to any hope does appear to have led him to interpret material in the way he wanted rather than at times listening to the evidence.
Sir Andrew McFarlane said: ‘As I understand it the MRI on 5 November was a test which in fact clinicians didn’t think was necessary in order to confirm diagnosis of brainstem death.
According to a doctor’s report the baby’s ‘brain structures are no longer identifiable as they have disintegrated and liquefied’.
‘This will in effect be exhibited as an oral judgment. I don’t think [adjourning until next week] is in humane terms of interest to anyone,’ Sir McFarlane added.