V and W v Kchnt
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 16 November 2022 |
| Neutral Citation | [2022] EWCOP 48 |
| Docket Number | Case No: COP 14016777 |
| Court | Court of Protection |
Re X (Catastrophic Injury: Collection and Storage of Sperm)
[2022] EWCOP 48
Mr Justice Poole
Case No: COP 14016777
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Jones and Melissa Elsworth (instructed by Burgess Mee) for the Applicants
Stephanie David (instructed by Hill Dickinson) for the Respondent
Nageena Khalique KC for the Official Solicitor on behalf of X
Hearing dates: 3 November 2022
This is an urgent application in the Court of Protection heard out of hours. I gave a ruling and reasons for that ruling at the hearing but this is my full written judgment. The person with whom I am concerned is X. I have made a Transparency Order prohibiting the identification of X, any members of his family or the healthcare professionals treating him. The Respondent Trust can be named. The Order remains in force until further order.
The application is brought in tragic circumstances by X's parents, his father V and his mother W. At the time of the hearing X lies unconscious in intensive care following a sudden collapse. There is virtually no prospect that he will recover. He may be assessed as being brain stem dead within the next 24 hours. The application is for a declaration that it would be lawful for a doctor to retrieve X's gametes and lawful for those gametes to be stored both before and after his death on the signing of the relevant consents. Further, the applicants seek an order that V may sign the relevant consents in accordance with the provisions of sub-paragraph 1(2) of Schedule 3 to the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”).
The 1990 Act defines “gamete” as including live human sperm. In this judgment I shall refer to X's sperm rather than to gametes. The applicants do not seek any orders in respect of the use of X's sperm once collected and stored. That, they say, is for another day. However, it is clear that the applicants want X's sperm to be collected and stored in order that it might be used in the future for the conception and birth of a child or children.
The family is Chinese. At the hearing, V had the assistance of his brother-in-law to act as an interpreter. W was not in attendance. The applicants were represented by Mr Jones, Counsel. The Trust was represented by Ms David, Counsel, through whom I have been given uncontested information about X's condition and the process that would be used to collect and store his sperm. The Trust takes a neutral position on whether the declarations and orders sought are in X's best interests. The Human Fertilisation and Embryology Authority (“HFEA”) wished to appear at the hearing but could not do so out of hours. Nevertheless, I was provided with a detailed letter from the HFEA setting out their opposition to the application as they understood it to be made. The Official Solicitor does operate an out of hours service, which is extremely helpful to the court and the other parties, and was represented by Miss Khalique KC, who told the court that the Official Solicitor aligns herself with the HFEA's position.
X is a student at a University in the South West of England. He is 22 years old and previously fit and healthy. He is his parents' only child. On 24 October 2022 he was playing sport when he collapsed. He had suffered a stroke. He was taken to a hospital in the South West and then by intensive care transfer to the care of King's College Hospital NHS Foundation Trust in London. I have a written report from a consultant neurosurgeon at the hospital. He says that X suffered a cryptogenic stroke (meaning that it has an unknown cause) which he described as a malignant, middle cerebral artery stroke. X has suffered brain stem ischaemia. Whilst initially his eyes were open and he responded to some commands, he deteriorated. He underwent surgery to decompress his brain but since 27 October 2022 his pupils have been fixed and dilated and there have been no motor responses. The neurosurgeon reports,
“There is evidence of transtentorial herniation bilaterally with severe tonsillar descent below the foramen magnum and effacement of the basal cisterns. A CT angiogram demonstrates that there is no perfusion of either hemisphere above the level of the upper basilar. Overall, the appearances are consistent with a very extensive bi-hemispheric ischaemic insult.”
I am told by Ms David on behalf of the Trust that it is thought that X is now brain stem dead but that a formal brain stem death assessment has not yet been performed. In the circumstances his death has not been confirmed and I proceed on the basis that X is alive. X is intubated and supported by mechanical ventilation. He has no cough or gag to suctioning and exhibits no spontaneous respiratory activity. The prognosis is very poor and he is not expected to survive. It may be possible to keep him on ventilation for an uncertain period of time but multi-organ failure is anticipated and his heart may stop at any time. If so, there would be no justification for resuscitation.
There is no dispute that X lacks capacity to make the decisions under consideration. Neither is there any dispute that he is extremely unlikely to recover capacity to make those decisions. Sections 1 to 3 of the Mental Capacity Act 2005 (“MCA 2005”) apply. I need not dwell on the test for capacity because there can be no doubt in this case that X lacks capacity to make the relevant decisions.
By s.1(5) of the MCA 2005,
“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”
I must consider X's best interests having regard to the provisions of s.4 the MCA 2005 and the Code of Practice. Section 4 provides:
“4 Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).”
I have been provided with a statement from V who says,
“I know that the court will have particular regard to my son's past wishes and feelings and in particular any written statement made by him when he had capacity as to what he wanted for the future. My son had a girlfriend Y, and he has for many years spoken to me about wanting children of his own. For example, he has made sure he has kept his own toys and even his junior golf clubs to give to his own child one day.
“I make it clear to the court that my wife and I would raise the child, but the girlfriend, who is aware of this application, has expressed a desire to carry his child. I appreciate that we cannot speak for her, and the court has no evidence from her, but it seems right that we make the court aware of this and that in any event, what we are clear about, is that our son has always wanted a family and we would wish very much to fulfil that wish in any event.
“In relation to X's beliefs and values, he was very family focused and we discussed on WeChat on many occasions family life and what type of father he would be (these will be produced in due course once they are translated). I know that he spoke to his friends at university about being a dad, even to the extent of discussing what type of dad he would be.
“In due course we would of course wish to bring further evidence before this court but in the interests of time I set out what is the most relevant information for the court to consider. The hospital is aware of our desire and the need for speed.
“Finally, I am aware that this application, because of its urgency, is being made out of hours and without notice. On that basis, I am asking for a proportionate order, namely that my son's sperm be extracted from him until such time as the court can deal with this matter fully. In due course, I will be asking for that sperm to be used to create embryos but for the purposes of today I limit the application to...
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