Citation:  EWCOP 69
Citation:  EWCA Civ 1772
Citation:  EWCOP 70
Citation:  EWCA Civ 22
On 6 November 2020, a middle-aged man referred to as RS suffered a heart attack and was without oxygen for at least 45 minutes. He was taken to hospital and, sadly but unsurprisingly, was found to have sustained severe hypoxic brain damage. The prognosis was bleak – at best progress to being in a minimally conscious state at the lower end of the spectrum. The treating doctors determined that it was in his best interests for treatment to be withdrawn, and his wife agreed. RS came from a Polish Catholic family and members of his wider family still lived in Poland. He had not had much contact with his wider family, even those members who lived in England, but they were of the view that treatment should not be withdrawn. Cohen J heard the case, including an opinion from an independent expert instructed by the Official Solicitor, and decided that it was not in RS’s best interests for treatment to be continued. He rejected the view that as RS was Catholic he would inevitably have wanted treatment to continue, and accepted the evidence of RS’s wife, finding that he would not have wanted to be kept alive in a state which provided him with no capacity to obtain any pleasure and which was so upsetting to his wife and children. RS’s wife understandably found giving evidence and being cross-examined very traumatic, and so her evidence was truncated. She later sent a letter to the judge with further information which she did not want to be shared with the wider family.
RS’s wider family sought permission to appeal on the basis that the court failed to make sufficient enquiry into what RS’s views would have been. In particular, the views of the Catholic Church should have been explored, and more time should have been spent on resolving the tension between RS’s religious views and the view that he would not want further treatment. Further, the family submitted that the Judge breached natural justice and Art. 6 ECHR by prohibiting cross-examination of RS’s wife on the grounds that she was distressed and/or by permitting her to communicate additional evidence by a confidential letter to the Judge which was not disclosed to the parties.
Permission to appeal was refused ( EWCA Civ 1772). The Court of Appeal held that wider family had been represented by leading counsel at the hearing and no issue had been taken about various matters raised on appeal. There was nothing that could usefully have been achieved by postponing a decision. While it would have been better if the judge had made it clear that any further communication would probably need to be shown to ally parties, and had afterwards expressly confirmed that he would place no weight on any matter not disclosed, it was already known that RS had made choices in his personal life that were not in complete harmony with his religious obligations, so the letter could not plausibly be said to have played a part in the decision.
Treatment had been withdrawn following the first instance decision and restarted when the Court of Appeal application was lodged. Following the Court of Appeal’s decision it was withdrawn, but again restarted when the family and the Polish Government submitted an application for interim relief to the European Court of Human Rights. While that application was pending, the family brought the matter back before Cohen J and sought permission to rely on expert evidence which they said showed that RS’s diagnosis was better than had been thought and that he was already in a minimally conscious state.
Cohen rejected their application in forceful terms  EWCOP 70. The evidence had been obtained in an ‘underhand way’ that was ‘arguably unlawful and in breach of the rights of both RS and the Trust’. The expert, who was a priest and neurologist, had prepared a report despite not having read the medical records, not having seen the reports of other doctors prepared for the proceedings, not having spoken to any member of the treating team, and not having read any of the court judgments. He had not kept notes of any of his conversations about the case, and was not a ‘satisfactory witness’ .
Following the second hearing before Cohen J, the ECtHR rejected the applications before it as inadmissible. Treatment was withdrawn for a third time. A further, substantive, application was made by the birth family to the ECtHR, being ruled inadmissible a week late; on the same date a second application for interim relief was made by the birth family. A stay of the order of Cohen J therefore expired, and CANH was withdrawn. Three days later an out of hours application was made to the Court of Appeal for a further appeal on the basis that there had been a change in medical opinion. A stay was granted overnight and two judges of the Court of Appeal heard the case, dismissing the application for permission to appeal.
King LJ and Peter Jackson LJ had little hesitation in dismissing the appeal. They both noted the concern of the effect of the proceedings upon RS’s care and treatment – four weeks after it had been found that continuation of CANH was not in RS’s best interests, it had had to be reinstated three times. As King LJ noted, the order made by Cohen J on 15 December had provided that:
All care and palliative treatment given shall be provided in such a way as to ensure that, as far as practicable, the First Respondent retains the greatest dignity and suffers the least discomfort until such time as his life comes to an end.
However, she continued:
It is difficult to imagine a greater assault upon the dignity of this man, who was until a matter of weeks ago a fit and healthy family man, to have had CANH withdrawn and reinstated on three separate occasions. Each reinstatement has required invasive treatment and the most recent one took place at a time when he was perceived by the medical team to be close to death, a situation that was seen by the birth family to justify an application for a stay in the middle of the night without notice to the Trust or the Official Solicitor.
The court was also very concerned at the distress caused to RS’s wife and children by the sequence of events.
King LJ made clear that the court will, if appropriate, review an earlier best interests determination: As Francis J put it in Great Ormond Street Hospital v Yates (No 2),  4 WLR 131 at para.11, such a reconsideration will be undertaken “on the grounds of compelling new evidence” but not on “partially informed or ill-informed opinion.” King LJ considered that the nature of the evidence that the birth family had sought to rely upon was to be characterised as being partially- or ill-informed.
One particular point of wider importance is the Court of Appeal’s rejection of the argument that it was incompatible with Article 2 ECHR to withdraw food and fluids from a person capable, or possibly capable, of feeling pain and of suffering. Peter Jackson LJ held that:
The welfare principle applies to all decisions, whatever the diagnosis. Mr Bogle founded his submission that it is incompatible with Article 2 ECHR to withdraw food and fluids from a person capable of feeling pain and of suffering with reference to statements from Airedale NHS Trust v Bland  AC 789, which of course concerned a person in a vegetative state. However, there is no lack of well-established domestic authority to the effect that CANH can be lawfully withdrawn from persons who are not in a vegetative state [which he then cited]
Peter Jackson LJ also held that Cohen J had been “plainly entitled” to reach the conclusion that it was not in RS’s interests to be transferred to Poland, not least in circumstances where (contrary to the submission advanced by the birth family) his wife and children were against the move. As Peter Jackson LJ noted, their approach suggested that they had lost track of the fact for 17 years RS’s real life had not been with them but with his own family in the UK.
With reluctance, the Court of Appeal granted a very short stay whilst the birth family made a further application to the ECtHR. The ECtHR dismissed that application as inadmissible, and the stay on the original order of Cohen J has therefore expired. We also understand that an application has been made by a Polish legal foundation to the Committee on the Rights of Persons with Disabilities for it to make a request for the UK to take interim measures to prevent the withdrawal of treatment pending consideration of its complaint under the Optional Protocol. A similar application was made in the case of the French national, Vincent Lambert; the CRPD made such a request, which received a very dusty reaction from the French courts. We anticipate that a similar reaction may well be given to any such request here (if, indeed, any is made).
While disputes about withdrawal of treatment between family members are fortunately rare, they are particularly distressing. Since RS’s heart attack, his immediate family have had to come to terms with his brain injury, bring themselves to agree that treatment should be withdrawn, prepare for his death after treatment was withdrawn, more than once, and be taken through repeated court processes. All this in circumstances where the court has followed the caselaw and the requirements of the MCA 2005 and – critically – established that RS himself would not have wanted treatment to be continued. It is also difficult, we suggest, to escape the feeling that in this case RS’s case has been taken up by those who wish to advance a cause as opposed to thinking about (from a domestic perspective) his best interests, or (from a CRPD perspective) the best interpretation of his will and preferences.
The case serves as a sad reminder of the importance of writing down your wishes in advance or appointing a lasting power of attorney. It also serves to remind why there are rules about the admission of expert evidence and obtaining the court’s permission for it in advance.