Z v University Hospitals Plymouth NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cohen |
| Judgment Date | 31 December 2020 |
| Neutral Citation | [2020] EWCOP 69 |
| Court | Court of Protection |
| Docket Number | Case No: COP13684602 |
| Date | 31 December 2020 |
[2020] EWCOP 69
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Cohen (In Public)
Case No: COP13684602
Charles Foster and Bruno Quintavalle (instructed by Camerons Solicitors LLP) for the Applicant
Vikram Sachdeva QC (instructed by Bevan Brittan LLP) for the NHS Trust
Andrew Hockton (instructed by the Official Solicitor) for RS
The Third, Fourth and Fifth Respondents were in attendance but did not participate
Hearing dates: 30 & 31 December 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Cohen
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The Honourable
This case concerns RS. There is a transparency order in place and anyone who is minded to talk about or otherwise publicise this case must make themselves familiar with the terms of the transparency order.
On 15 December 2020, just over a fortnight ago, the applicant NHS Trust was granted a declaration by me sitting in the Court of Protection that:
i) It was not in RS's best interests to be given life sustaining medical treatment including nutrition and hydration and that such treatment could be lawfully discontinued;
ii) It was in his best interests to be given palliative treatment; and
iii) All care and palliative treatment given shall be provided so as to ensure that he retained the greatest dignity and suffered the least discomfort until such time as his life comes to an end.
The Trust's application had been supported by RS's wife but opposed by his birth family.
Following my decision, on 16 December 2020 nutrition including hydration was withdrawn but was reinstated on 18.12.2020 upon the filing of an application for permission to appeal by RS's niece on behalf of the birth family. On 23 December 2020, the Court of Appeal refused the application for permission to appeal. My decision, which will be put on the Bailii website within next couple of days, was based on the following factors:
i) RS, a middle aged man, suffered a cardiac arrest on 6 November 2020 during which his heart stopped for at least 45 minutes. The inevitable consequence was severe and irreversible brain damage.
ii) The medical evidence which was agreed between all parties including the birth family was that RS was then moving from a state of coma to a vegetative state (VS).
iii) That at best there was a 10–20% chance that he might progress to a minimally conscious state (MCS) minus. That is at the most severe end of MCS.
iv) RS was not responsive at that time to stimuli of any sort although he did spontaneously open and move his eyes but without fixing or tracking. He showed no characteristic features of discomfort or distress to stimuli which would be painful to a feeling person.
v) If he did reach MCS minus, RS might be able to acknowledge the presence of another human being but there would be no means of knowing whether that would be a response specific to the person visiting him or just a general response to anyone. Nor would it be possible to know whether the response signified pleasure or distress. Nothing would restore any functionality.
vi) It was self-evident that RS lacked capacity to make any decision for himself.
vii) The focus of disagreement was on what RS's views would be if he was able to make a decision in his current predicament. His birth family said that his strong Catholic faith would mean that the sanctity of life would triumph over all other considerations. His wife said that from her conversations with him she can say with certainty that he would never have wanted to have been kept alive if he could not be helped and he would not have ever wanted to be a burden. His present state was causing great distress to his wife and their children, as it would be to him if he could feel it or express it.
viii) I accepted RS's wife's evidence of his views, especially against the background of what was a significant estrangement between RS and his birth family to the extent that his only relatives in this country, that is his niece and her family, had not seen him for at least 9 years.
As I have mentioned, following my decision nutrition and hydration were withdrawn but then reinstated when the Court of Appeal notice was filed. When that application was dismissed nutrition (which included hydration) was withdrawn again on 24 December 2020; intravenous fluids, saline and glucose solution were instated on 28 December in circumstances which I will come onto.
On 24 December 2020 RS's birth family applied to the European Court of Human Rights (ECtHR) for interim relief, having exhausted their avenues in England. I shall continue to use the term birth family and niece interchangeably even though some of the steps taken in the various proceedings have been taken by RS's niece on her own, but I accept that she is acting as the spokesperson of the group which comprises RS's mother, his two sisters and his niece.
On 27 December 2020 the birth family sought an urgent hearing which came before Mr Justice Holman the following day as duty judge. He directed that the paragraph of my order of 15 December 2020 authorising the removal of life sustaining treatment should be stayed until the hearing that was fixed before me to take place yesterday. The Judge went on to make various directions as to the filing of evidence and provision of information about the proceedings in the ECtHR. He was particularly concerned about the absence of information about the status of the application before the ECtHR. It is unnecessary for me to go through the other directions that were made.
Subsequently RS's niece issued an application which is before me today seeking three specific orders:
i) An order that she be allowed to rely on the report and call in evidence Dr Pullicino;
ii) A declaration that it is lawful and in the best interests of RS to receive CANH;
iii) A declaration that it is lawful and in his best interests for him to be transferred to Poland for further treatment.
By the time of the hearing before Holman J the Government of the Republic of Poland had also sought interim relief in the same terms as that sought by the birth family. Both applications were refused by the ECtHR on 24 and 28 December 2020 respectively although that was not known at the time of the hearing. On 28 December the birth family made a formal substantive application to the ECtHR.
It was the niece's application as set out in paragraph 7 above that were heard by me on 30 December 2020 and upon which I now give judgment. The application is resisted by the Trust and by RS's wife and is also not supported by the Official Solicitor (OS) who represents RS.
It is agreed that the main issue before me is whether my reliance on the medical evidence which I heard on 9 December 2020 was either misplaced or needs to be reconsidered in the light of the events since that time.
First, following my decision, RS was removed from the ventilator. As anticipated by the treating team, RS has proved able to breathe unassisted. Secondly, he has been prescribed antibiotics as it appears that he has or may have pneumonia. Thirdly, following the cessation of nutrition and hydration, RS has been provided with morphine and midazolam (a sedative). The continuous infusion of these was suspended (although RS continues to be prescribed these on an as required basis) when intravenous fluids, saline and glucose solution were instated, with it would appear, an increase in his agitation. Fourthly, there have been repeated assessments by his treatment team including the carrying out of an EEG, to which I will return.
I turn now to the events of the last few days. This requires an examination of the role of Dr Pullicino. Dr Pullicino is an experienced neurologist as well as an ordained priest. I decided to admit his report and allow him to give evidence although I had severe misgivings about it and the circumstances of his engagement. But it seemed to me proper that all the evidence in this difficult and very serious case should be heard.
I have to say that I found some of Dr Pullicino's evidence unaccountably vague. On a date that he cannot identify, he learned about this case through a variety of routes, the order of which he cannot give. They were:
i) A discussion he had in the days between 15 – 24 December 2020. He cannot remember where or when or with whom this discussion took place but after pressing he believes that at least one of the participants was PS who works with or for the Christian Legal Centre.
ii) He received information from what he describes as an American pro-life organisation which publicised, I think, the Court of Appeal decision, but possibly mine, under the headline of RS being a “euthanasia victim”.
iii) He spoke to RS's niece who gave him information about the case. He cannot say when the conversation took place but it must have been no later than 24 December 2020.
None of these three sources can be regarded as reliably objective.
On 25 December 2020 RS's niece attended at the treating hospital accompanied by her mother and brother. They said...
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Z v RS (by his Litigation Friend the Official Solicitor)
...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. 4 On 24 December 2020, the birth family applied to the European Court of Human Rights (“ECtHR”) for interim relief and a similar application wa......