End of Life: Second Unarguable Appeal Application
A decision by Cohen J that it was in the best interests of a man (RS) not to receive life-sustaining treatment led to the Court of Appeal holding[1] that an appeal was unarguable. (See Article Unarguable end-of-life Application on this website)
A few days later the judge refused a still further application that it would be in RS’s best interests to receive clinically assisted nutrition and hydration (CANH) and confirmed his decision of 15 December that such treatment was not in RH’s best interests.
He also refused to order that RS be transferred to Poland, his country of origin, from which he emigrated in 2006, for further treatment, as well as refusing permission for the birth family to instruct another expert on condition and prognosis.
Thereafter, the birth family applied to the European Court of Human Rights (ECtHR) for interim relief and also to the government of Poland. The applications were refused.
On 28 December the birth family made a substantive application to the ECtHR which was, on 7 January, ruled to be inadmissible, and a further application for interim relief was refused.
Again, because of the urgency of the matter, a two-judge Court of Appeal heard, and refused as unarguable, a second appeal on 11 January 2021, with written reasons to follow (Handed down 13 January 2021): Z v University Hospitals Plymouth NHS Trust (No 2) [2021] EWCA Civ 22 Lady Justice King, Peter Jackson LJ
The effect of the proceedings on RH’s care and treatment was of particular concern.
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 had to be reinstated three times.
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.
The judge was understandably dismayed by this behaviour and deplored the underhand way in which the evidence was obtained and the disrespect to RS’s wife and the treating team.
Nevertheless, the judge heard evidence from Dr Pullicino, rejected it and placed no weight upon it for reasons given in his judgment. The judge preferred the evidence of Dr Bell and the treating physicians.
It was an unarguable ground of appeal that the treatment of Dr Pullicino’s evidence was unfair. The evidence, despite being obtained by a deplorable ruse, was fully considered.
It lacked every characteristic of credible expert evidence and it was unsurprising that the judge rejected it as effectively worthless.
There was no appeal from the judge’s refusal to permit a further expert instruction. Instead, Z and those advising her re-contacted a Dr S who had earlier produced a three-page report describing the prognosis as rather poor.
This report had not been disclosed earlier probably because it effectively agreed with the treating doctors.
These were not rolling proceedings in which a dissatisfied party could continue at will. Far from there being any unfairness in the refusal to permit the instruction of a further unidentified expert, there was a real risk of harm to the protected party.
In a second letter, Dr S, on the basis of an account given by Z and the recordings of RS, purported to diagnose an improvement in RS’s condition to one of minimal consciousness.
Dr S’s letter suffered from many of the same shortcomings as Dr Pullicino’s evidence in that it lacked any sound evidence base. There was no proper basis on which this evidence could be admitted in evidence on appeal.
The judge’s conclusion that the medical prognosis had not changed was one that was solidly based on ample evidence.
The submission that it was incompatible with Art 2 ECHR to withdraw food and fluids from a person capable of feeling pain and suffering was wrong as a matter of law. There was no lack of well-established domestic authority to the effect that CANH could be lawfully withdrawn from persons who were not in a vegetative state.[2]
That it was not in RS’s best interests to be transferred to Poland, was a conclusion the judge was plainly entitled to reach for the reasons he gave.
It was hard to contemplate the distress which must have been caused to the wife and children of RS by the continuation of these proceedings after the Court had dismissed the application to appeal from Cohen J’s original decision that it was in the best interests of RS for all medical treatment to be withdrawn.
Permission to appeal may be given only where the court considered that the appeal would have a real prospect of success or where there was some other compelling reason for the appeal to be heard: Civil Procedure Rules 52.6.
Neither criterion was satisfied in the present case. The judge’s decision was sound and lawful and the proposed grounds of appeal were without merit.
[1] JB v University Hospitals NHS Trust (1) RS (by his Litigation Friend the Official Solicitor (2) [2020] EWCA Civ 1772
[2] An NHS Trust v Y [2018] UKSC 46; [2018] 3 WLR 751; In Re M (Adult Patient)(Minimally Conscious State: Withdrawal of Treatment) [2011] EWHC 2443 (Fam); [2012] 1 WLR 1653; In re M (Incapacitated Person: Withdrawal of Treatment) [2017] EWCOP 18; [2018] 1 WLR 465 and In re Briggs (Incapacitated Person) [2018] Fam 63