Z v RS (by his Litigation Friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice King |
| Judgment Date | 13 January 2021 |
| Neutral Citation | [2021] EWCA Civ 22 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2021/0064 |
| Date | 13 January 2021 |
[2021] EWCA Civ 22
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
Mr Justice Cohen
13684602
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King
and
Lord Justice Peter Jackson
Case No: B4/2021/0064
James Bogle (instructed by Moore Barlow LLP) for the Applicants
Andrew Hockton (instructed by The Official Solicitor) for the 1 st Respondent
Vikram Sachdeva QC (instructed by Bevan Brittan LLP) for the 2 nd Respondent
Z v UNIVERSITY HOSPITALS PLYMOUTH NHS TRUST (NO 2)
Hearing date: 11 January 2021
Approved Judgment
This is an application for permission to appeal from a decision of the Court of Protection. An order made on 9 December 2020 and updated since prevents the identification of the subject of the proceedings, RS, or his family members or friends or the treating clinicians.
The applicants are members of the RS's birth family, from whom he has to varying degrees been estranged for some years. Z is his niece, M his mother, and S and R his sisters. They seek to appeal from the order of Cohen J (‘the Judge’) made on 31 December 2020, by which he refused their application for a declaration that it would be in RS's best interests to receive clinically assisted nutrition and hydration (CANH) and confirmed his decision of 15 December 2020 that such treatment was not in RS's best interests. The Judge also refused to order that RS should be transferred to Poland, his country of origin from which he emigrated in 2006, for further treatment. He also refused permission to the birth family to instruct another expert on condition and prognosis.
The Judge's first decision is to be found at [2020] EWCOP 70. RS's niece sought permission to appeal, which was refused by this court on 23 December 2020: [2020] EWCA Civ 1772. The Judge's second decision is at [2020] EWCOP 69.
On 24 December 2020, the birth family applied to the European Court of Human Rights (“ECtHR”) for interim relief and a similar application was made by the Government of the Republic of Poland. These applications were refused by the ECtHR on 24 and 28 December 2020 respectively. On 28 December 2020 the birth family made a substantive application to the ECtHR. On 7 January 2021 this was ruled to be inadmissible and on the same date a second application for interim relief by the birth family was refused.
Due to the seriousness and urgency of the matter, this application for permission to appeal with the appeal to follow if permission were granted was heard orally by a two-judge court on the afternoon of 11 January 2021. Having heard submissions from the parties, we dismissed the application for permission to appeal for reasons to be given in writing the next day. The birth family stated its intention to make another application to the ECtHR and we therefore granted a very short stay until 6 pm on 13 January 2021. We did so with reluctance, given the history described below. We now give reasons for our decision, which may be cited.
Permission to appeal may be given only where the court considers that the appeal would have a real prospect of success or where there is some other compelling reason for the appeal to be heard: Civil Procedure Rules 52.6. Neither criterion is satisfied in this case. The Judge's decision is sound and lawful and the proposed grounds of appeal are without merit. There is no compelling reason for an appeal to be heard. On the contrary, the history demonstrates why there should be no further obstacle to RS being treated in the manner that has repeatedly been found to be in his best interests by the Court and that is supported by his wife and children, who are his next of kin, by the medical staff treating him, and by the Official Solicitor and her independent expert witness.
The effect of the proceedings upon RS's care and treatment is of particular concern. Following his heart attack on 6 November, he received CANH and ventilation until 16 December, when they were withdrawn following the Judge's first decision. CANH was reinstated on 18 December following the filing of Z's application for permission to appeal and again withdrawn on 24 December after the dismissal of that application by this court. It was again reinstated on 28 December following the filing of the birth family's application and again withdrawn on 7 January upon the expiry of a stay granted by the Judge. Finally, CANH was reinstated on 11 January in response to this application for permission to appeal. It will again be withdrawn on 13 January on the expiry of the short stay granted yesterday by this court. In summary, four weeks ago the continuation of CANH was found not to be in RS's best interests but as a result of the proceedings brought by the birth family, it has had to be reinstated three times.
I next describe the events leading to the Judge's second decision. At the end of the hearing at which the first application for permission to appeal was refused, a request was made to RS's wife by the birth family to be allowed to make a farewell visit to RS. That was agreed and on Christmas Day, Z and her mother S and her brother attended the hospital. Unbeknownst to the hospital or to RS's wife, they had previously consulted a neurologist, Dr Pullicino, and they used the visit to film RS for the purpose of obtaining evidence. As described by the Judge:
“15. It is apparent that during the course of their journey to the hospital, RS's niece spoke to Dr Pullicino and what was to happen at the hospital was agreed between them. When RS's niece and her family attended at the hospital, they were seen by Dr W (consultant intensivist) and a colleague who both happened to be on duty on Christmas Day. Both Dr W and his colleague who was working later into the evening than Dr W said that they were happy to speak to the family if they so wished either on 25 or 26 December 2020. The family chose not to speak to the doctors on either day even though they had held themselves available to answer any questions. Instead the family took various videos.”
The Judge was understandably dismayed by this behaviour:
“25. First, I deplore the underhand way in which this evidence was obtained. Amongst other things it is deeply disrespectful to RS's wife that she should have been duped in the way she was as to the purpose of the niece's visit. It is also disrespectful to the treating team who held themselves available to assist in answering questions.
26. Although I have not heard any detailed argument, it seems to me arguably unlawful and in breach of the rights of both RS and the Trust for the niece to film a visit made to RS without the consent of RS, his next of kin or the hospital authorities.”
Nevertheless, the Judge heard evidence from Dr Pullicino, who had purported to make a diagnosis on the basis of the short recordings (ten clips totalling less than three minutes). Having done so, he rejected the doctor's evidence and placed no weight upon it for the reasons given at paragraphs 24 to 30 of his judgment. The doctor had reported without any real information or any properly structured examination. The Judge preferred the evidence of the independent expert Dr Bell and of the treating clinicians, given in the light of a recent EEG recording and systematic observation of RS with his wife. He analysed their evidence in detail at paragraphs 32 to 42, his essential conclusions being these:
“34. Dr Bell reported that the view of Dr W and the multidisciplinary team is that RS is now established in VS with no evidence of progression along the spectrum of PDOC towards a MCS. This was confirmed by an EEG recording made on 29 December confirming a lack of brain activity to various types of stimulation.
…
36. Dr Bell had given his opinion based on his examination of 5 December 2020 of a 10–20% percent chance of RS reaching the low point of MCS whereby he might be able to acknowledge the presence of a human being without being able to demonstrate knowing who they were. He said, I am sure rightly, that no proper conclusion, diagnosis or prognosis can be made on video evidence alone. You need the full picture, in this case now enlarged by the new EEG showing an absence of commensurate electrical activity by way of response to stimulation. It confirms the absence of cortical brain processing. The passage of time has reduced the figure of a 10–20% chance of RS reaching MCS minus.
37 Insofar as RS is showing some signs of more alertness, that is simply the result of the brain swelling subsiding which permits some of the more resilient elements of the brain to function as RS moves from coma to VS. It does not signify any recovery of cognitive function or ability to communicate or show emotion. There is nothing, says Dr Bell, to be said for allowing more time. 8 weeks is sadly quite sufficient to be able to give a prognosis where RS suffered such a severe injury. Very sadly, things have got worse for RS, not better.
…
40. Dr W, as the treating clinician, is very concerned at the pain and suffering which the treatment, as opposed to palliative care, may be causing to RS, and that there is evidence of such pain recounted by those who have recovered from less severe injuries than RS's. There is he says no significant change and his views which were less optimistic than Dr Bell's on 9 December 2020 have sadly proved correct.
…
43. I am left in no doubt that there has been no improvement in RS...
To continue reading
Request your trial
-
Paula Parfitt v Guy's and St Thomas' Children's NHS Foundation Trust
...Mylonas reminded us of the very recent observation of Peter Jackson LJ in Z, M, S, R v RS and University Hospitals Plymouth NHS Trust [2021] EWCA Civ 22 when, in giving reasons for dismissing an appeal against a judge's refusal to allow the instruction of a further expert at paragraphs 20 ......
-
Mr P Sridhar v Kingston Hospital NHS Foundation Trust: 2301132/2021
...in particular… ‘The length of, and the reasons for, the delay’ ” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 22). Conclusions 132. We will make our conclusions on the issues as set out in the Amended List of Issues, but not always in the order of that Dis......
-
Mr M Hennessy v Delfino Logic Ltd: 2305884/2021
...in particular… ‘The length of, and the reasons for, the delay’ ” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 22). 25. Reviewing the authorities, the learned editors of Harvey’s set out a nonexhaustive list of factors that may prove helpful in assessing in......
-
Mr A Parmar v John Lewis plc: 2305739/2021
...with reasons – rule 62 March 2017 Case No: 2305739/2021 delay’ ” (Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 22). 16. In Kumari v Greater Manchester Mental Health NHS Foundation Trust [2022] UKEAT 132 the EAT held that the potential merits of a claim, whi......