In JB v University Hospitals Plymouth NHS Trust & Anor  EWCA Civ 1772, the Court of Appeal considered the case of RS. He had had a heart attack in November 2020 and his brain had been deprived of oxygen for at least 45 minutes – since when he had been in a coma. In the Court of Protection, Cohen J decided that it was in RS’s best interests to receive palliative care only rather than life-sustaining treatment. As a result, RS would die within a few weeks . Members of his family disagreed as to his best interests: his wife and children, his treating doctors and the Official Solicitor, acting as litigation friend, supported the decision of the Court of Protection, while his birth family, who were devout Roman Catholics, opposed it . RS’s wife said in her oral evidence that he had told her that he never wanted to be a burden if he was seriously ill ; RS’s sister KB, on the other hand, told the Court that RS
“had expressed his disagreement with a widely reported case in England where the decision was to terminate medical treatment for a very small child born with serious abnormalities. He was religiously conservative, opposed to abortion, even for an unborn child likely to be medically compromised, and was opposed to euthanasia. It was painful to him that he and his wife were unable to obtain an annulment of her previous marriage and thus marry in Church and that thereafter he was unable to take Holy Communion. He would not want his life terminated if it could be sustained. The preservation of life would outweigh all other factors in his thinking” .
In the Court of Protection, Cohen J said that he placed greater weight on the views of RS’s wife “because over the last decade and probably the previous decade before that she has known him so much better than anyone else” . Having weighed the prospects of RS having “any semblance of pleasure” in his future life, the sanctity of life, RS’s religious beliefs, “the evidence … that patients with very limited ability to show any emotion more often show distress than pleasure”, the views of RS’s family and relatives and RS’s own views so far as they could be ascertained, he granted the Trust’s application .
The Court of Appeal pointed out that under Civil Procedure Rule 52.21 “an appeal can only succeed if the decision is (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court” . Counsel for JB had not contended that Cohen J’s decision was wrong, nor had they challenged the medical consensus about RS’s prognosis:
“Their core submission is that the decision was unjust because of serious procedural error in that it was taken with an insufficient degree of inquiry into how RS would have wanted to be treated against the backdrop of the tenets of his Catholic faith. Instead, the court moved far too swiftly to the conclusion that this devout Christian man would have wanted something that was in conflict with religious teaching that the end of life is a matter for God and not for Man” .
In brief, the argument was that insufficient attention had been paid to resolving the tension between RS’s lifelong principles and the view that he was being said to hold about continued treatment .
The Court of Appeal began from the proposition that “any decision of this gravity must be taken with due consideration and that the necessary time and resources must be found to ensure that this is so. At the same time, if life-sustaining treatment is not in a person’s best interests it should not be given for longer than is necessary” . On that basis:
- the question of what was in RS’s best interests had been the subject of intensive consideration ;
- the application had been issued promptly once a clear diagnosis had been reached and the birth-family members had been aware of RS’s condition since 10 November ; and
- there had been no lack of clarity about RS’s very strong religious belief in the sanctity of life and Cohen J had clearly given full weight to that factor, “nor would further time have allowed the Court to reach a fuller conclusion about RS’s likely perspective on his current situation” .
As to the subsidiary submission that Cohen J’s decision to prohibit cross-examination of RS’s wife because she was distressed had breached natural justice and Article 6 ECHR (fair trial) , there was no absolute right to cross-examine and, in a case of this kind, adversarial cross-examination of family members acting in good faith was “likely to be of very little value” . As to the subsidiary submission that his decision to allow her to send him additional evidence in a confidential letter which was not disclosed to the parties had been a serious procedural error and a breach of Article 6 [20 & 27]:
“The fair conduct of these agonising hearings is highly case-specific … The Judge’s suggestion was a humane judicial response to a witness’s distress and the judgment is founded on evidence well-known to all and … contains no hint that the decision was influenced in any way by the contents of the letter. It would, I think, have been better if the Judge had made it clear that any further communication would probably need to be shown to all parties, and if he had afterwards expressly confirmed that he would place no weight upon any matter not disclosed. However, the nature of the communication is clear enough from the exchanges recorded above – namely that RS had made choices in his personal life that were not in complete harmony with his religious obligations. That much was clear from the known history and it cannot plausibly be said to have played any part in the decision in this case.”
The tragedy is that I have seen no evidence that any appropriate attempts have been made to accommodate RS’s disability, enabling him to communicate with the outside world, in order to inform the world as his own perception of his “best interests”, nor even to determine whether he is unconscious (as assumed), or merely “locked-in” – i.e. able to hear and understand what is said in his presence, but unable to move his body in order to express any reaction to this.
Because of this omission, a court has been asked to decide what RS himself should have been given the chance to decide. We know how that usually ends and it is therefore no surprise that RS has been deprived of hydration and nutrition since Christmas Eve.
I have therefore contacted both Prof Adrian Owen and the hospital where RS is being detained, drawing their attention to the following blog post of mine, asking the hospital that they should confirm that a neurologist has read it. I have also asked the hospital to restore hydration and nutrition to RS, whilst we wait to see what Prof Owen has to say about the case, after the holiday period.
Dying for a drink