Unarguable end-of-life Application

A decision by Cohen J that it was in the best interests of a man not to receive life-sustaining treatment, led to an urgent oral application to appeal to a two-judge Court of Appeal on 23 December 2020: JB v University Hospitals NHS Trust (1) RS (by his Litigation Friend the Official Solicitor (2) [2020] EWCA Civ 1772 Lady Justice King, Peter Jackson LJ.

In a judgment handed down at 4.30 pm the same day, the Court held that the application to appeal the decision from the Court of Protection was unarguable.

The tragic circumstances concerned a middle-aged husband and father-of-three (RS) who sustained a heart attack at his home and whose brain was thereafter deprived of oxygen for 45 minutes.

Since then he had been hospitalised and in a coma.  Without life-sustaining treatment he was likely to die within a few weeks whilst receiving palliative care to relief any suffering.

The tragedy that befell RS was exacerbated by a deep family rift extending back a number of years.  For these purposes, it is not necessary to dwell on that dispute, save to say that the family, which originated from abroad, shared a strong Catholic faith.

Since his  marriage, he had much less contact with his family overseas and was estranged from other family members in this country with whom he had no contact for over eight years.

The judge’s decision was supported by RS’s wife and children, by his treating doctors and by the Official Solicitor.

It was opposed by RS’s niece, speaking on behalf of herself and other family members, including his mother and two sisters.  It was the niece who now sought permission to appeal.

The medical prognosis was bleak.  The most optimistic onward prediction was that he may progress to the lower end of a minimally conscious state, with a small (10%-20%) chance of being able to acknowledge in the most rudimentary way the presence of another human being.

With continued ventilation he may survive for another five years.

The judge had identified the focus of the hearing as being on whether RS had expressed any views which would help inform the court as to how he would wish to be treated in his present situation.

Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 confirmed that the starting point was that it was in the best interest of a person to stay alive, but that was not absolute.  Each case must be decided on its own facts.

Baroness Hale observed at 39: “The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be and they  must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”

The trial judge accepted that RS had said to his wife that he did not want to be kept alive if he could not be saved, and placed greater weight on what the wife said because recently she had known him better than anyone else.

He did not accept that RS’s religious beliefs made him unlikely to have said what the wife reported.

Strong weight had to be given to the sanctity of life but it was not the deciding factor.

An appeal could succeed only if it was (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court: CPR 52.21.

It was not contended that the judge’s decision was wrong.

The core submission was that the decision was unjust because it was taken with insufficient degree of inquiry into how RS would have wanted to be treated, and the view that he was being said to hold about continued treatment.

But in this case the question of what was in RS’s best interests had been the subject of intensive consideration.  The Trust very properly applied to the Court of Protection because of the family disagreement.

RS’s interests were protected by the Official Solicitor who, in turn, commissioned independent medical advice and canvassed and recorded the views of family members which were confirmed as accurate.

The pace of such proceedings must be suited to the needs of the individual case.  Here, nothing could have been achieved by postponing a decision.

There was no arguable case that the judge’s decision was wrong or unjust and an appeal would have no prospect of success.