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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Z v University Hospitals Plymouth NHS Trust (NO 2) [2021] EWCA Civ 22 (13 January 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/22.html Cite as: [2021] EWCA Civ 22, [2021] COPLR 342 |
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ON APPEAL FROM THE COURT OF PROTECTION
Mr Justice Cohen
13684602
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE PETER JACKSON
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(1) Z (2) M (3) S (4) R |
Applicants |
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- v – |
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(1) RS (by his Litigation Friend the Official Solicitor) (2) UNIVERSITY HOSPITALS PLYMOUTH NHS TRUST |
Respondents |
Z v UNIVERSITY HOSPITALS PLYMOUTH NHS TRUST (NO 2)
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Andrew Hockton (instructed by The Official Solicitor) for the 1st Respondent
Vikram Sachdeva QC (instructed by Bevan Brittan LLP) for the 2nd Respondent
Hearing date : 11 January 2021
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Crown Copyright ©
Lord Justice Peter Jackson:
"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."
"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."
"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.
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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.
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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.
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43. I am left in no doubt that there has been no improvement in RS and no basis at all to change my decision that it is not in his best interests for life sustaining treatment to be given."
"44. I turn next to the birth family's application for a transfer of RS to Poland. The Vice-Consul of the Embassy listened to the evidence. I have read correspondence from the Polish Ministry of Foreign Affairs and the Polish Ministry of Justice offering to provide transport overseas and treatment and care in RS's country of nationality and birth. I would like to thank the Vice-Consul who addressed the court and expressed the willingness of that country to help in any way.
45. That said, I unhesitatingly reject the suggestion that RS should be moved overseas. As Dr W says:
i) It would be an extremely risky operation, a journey of many hours, with a significant risk of death in transit.
ii) It would be deeply uncomfortable for RS, far worse than being nursed on a hospital bed.
To that I would add
iii) There is no suggestion that any treatment or care can be provided overseas that could or would not be provided in UK if it were in his best interests.
iv) It is unthinkable that he should be moved against the wishes of his wife and children."
With some misgivings, the Judge granted a stay of his order until 7 January 2021 to allow for the application to the ECtHR to be considered.
"CF: Any further expert evidence. This case is still live. It may be that at another point you or another judge may need to look again at patient's condition. Position last time was that medical evidence was agreed. You know that family were not content that Dr B and Dr W. So the family had no bene?t of independent medical assessment, and that concerns them very much. Until 7/1, time ?ows, and it is time for independent assessment on behalf of the family. I ask for permission for RS to be examined by an expert instructed on behalf of the family.
VS [for Trust]: We oppose that v surprising suggestion, which only just emerged. Cardiac arrest took place on 6/11. There is no evidence at all that the treating clinicians and Dr B got it wrong. My lord has made ?ndings [about] the 2nd expert which the family has instructed (a Polish dr had a video conference). So that's a third bite of the cherry. We don't see this to be in RS's best interests at any level.
AH [for OS]: We oppose the application. This should not be used as an attempt to reopen matters which have already been determined.
VS: Med note with Polish expert who agreed with the clinicians.
J: There is not in fact any formal application. The answer is no, I am not prepared to grant an order for a further medical report. Reasons:
1. There is already independent evidence from Dr B;
2. No application issued;
3. I found evidence of Dr Bell cogent and no reason to think it is wrong;
4.The position of the Trust was agreed by Polish Dr (Dr S) in late November and agreed by the family until v recently;
5. OS who represents RS is opposed.
I refuse the application."
"Very constructive conversation. Explained the unit here and experience in managing hypoxic brain injury. Talked through clinical history and progression of examination ?ndings since admission. Screen shared to show MRI and CT images. Described EEG and SSEP in detail (not able to share traces as these are only available on electrophysiology system)… We await his report, however his view was in line with our prognostication and he is aware of the family disparity over what they believe to be the patient's wishes."
1. The procedure adopted during the hearing failed to comply with the Article 2 procedural requirements for an adequate decision-making process. In particular, the learned judge failed to ensure equality of arms between the parties and/or a sufficient inquiry into the apparent change in RS's condition and prognosis. He relied on the medical evidence of the experts of the Trust and the Official Solicitor but refused permission for the family to instruct its own expert so as to enable that expert to access and consider the documents in the case, examine RS, access the results of RS's tests, or discuss the case with the clinical team. Dr Pullicino had no opportunity to consider any of that material, and as such, the criticism of his evidence is unfair. In the circumstances, the determination by the learned judge of the substantive issues before him was made prematurely.
2. The learned judge erred in fact in determining that there had been no improvement in RS and no basis to change his earlier decision. At the time of the first hearing the agreed medical evidence was that RS was moving from a state of coma to a vegetative state, but at the second hearing Dr W and Dr Bell considered that RS was established in a vegetative state, while Dr Pullicino considered that he appeared to be transitioning to a minimally conscious state. Whichever evidence is accepted this clearly represents, contrary to the judge's finding, a significant improvement in RS's neurological state and, at a minimum, a full transition from a coma to a vegetative state had now occurred.
3. Given the changed neurological state, the learned judge erred in failing to conduct a new balancing exercise or in not ordering new medical evidence.
4. It is incompatible with Article 2 ECHR to withdraw food and fluids from a person capable, or possibly capable, of feeling pain and of suffering. The ECtHR has only ever found that the withdrawal of life-sustaining food and fluids is compatible with Article 2 in the case of people in a vegetative state and who thus have no awareness, including of pain.
5. The learned judge failed to give sufficient reasons, and/or had no proper evidential foundation, for a finding that a transfer to a Polish hospital proposed by the Polish government was not in RS's best interests in that (i) the finding that the journey would be "deeply uncomfortable for RS" is perverse, in that it is logically incompatible with RS being in a coma or emerging into a vegetative state; (ii) the finding of a significant risk of death in transit has no proper evidential foundation; and (iii) there was no evidence that a move to Poland would be against the wishes of RS's wife and children.
Lady Justice King:
"All care and palliative treatment given shall be provided in such a way as to ensure that, as far as practicable, the First Respondent retains the greatest dignity and suffers the least discomfort until such time as his life comes to an end."
It is difficult to imagine a greater assault upon the dignity of this man, who was until a matter of weeks ago a fit and healthy family man, to have had CANH withdrawn and reinstated on three separate occasions. Each reinstatement has required invasive treatment and the most recent one took place at a time when he was perceived by the medical team to be close to death, a situation that was seen by the birth family to justify an application for a stay in the middle of the night without notice to the Trust or the Official Solicitor.