End of life care and “best interests”: update

We previously noted the case of JB v University Hospitals Plymouth NHS Trust & Anor [2020] EWCA Civ 1772, in which the Court of Appeal considered the case of RS, a Pole, who had had a heart attack in November 2020 and had suffered serious brain-damage as a result of oxygen deprivation. In the Court of Protection, Cohen J had decided that it was in RS’s best interests to receive palliative care only rather than life-sustaining treatment, and the Court of Appeal refused an application for permission to appeal against that decision. RS’s birth family, from whom he was estranged, had argued that, as a Roman Catholic, RS would wish to be kept alive and had unsuccessfully sought permission to appeal the decision. There had also been also two failed applications for interim relief to the European Court of Human Rights, one of them by the Polish Government.

On 30 & 31 December, the matter returned to the Court of Protection, and in Z v University Hospitals Plymouth NHS Trust & Ors [2020] EWCOP 69, Cohen J considered a further application by RS’s niece, which was opposed by the NHS Trust and RS’s wife and was not supported by the Official Solicitor (OS) representing RS [9]. She sought three orders:

(i) that she be allowed to rely on the report of, and call in evidence, Dr Pullicino, a consultant neurologist who was also a Roman Catholic priest;

(ii) a declaration that it was lawful and in the best interests of RS to receive clinically-assisted nutrition and hydration; and

(iii) a declaration that it is lawful and in RS’s best interests for him to be transferred to Poland for further treatment [7].

Cohen J refused to make the orders sought.

As to the report and evidence of Dr Pullicino, Cohen J found some of it “unaccountably vague” and from sources that could not be regarded as “reliably objective” [13].

As to the birth family’s application for a transfer of RS to Poland, though the Polish Ministry of Foreign Affairs and the Polish Ministry of Justice offered to provide take RS to Poland and treat him there, Cohen J “unhesitatingly” rejected that suggestion, on the grounds that it would be “an extremely risky operation”, “deeply uncomfortable for RS” and there was no suggestion that he could be given any treatment or care in Poland that could not be provided in UK if it were in his best interests. Furthermore, it was  “unthinkable that he should be moved against the wishes of his wife and children” [45].

The ECtHR had not yet decided whether to accept the application made by the family and by the Government of the Republic of Poland but had refused applications for interim measures to order implementation of life-saving treatment and/or the transfer of RS to his birth country and/or further medical examination [46]. It was “highly unsatisfactory” that RS’s nutrition and hydration had been provided and then turned off on two occasions so far. Nevertheless, it was appropriate that there should be a continuation of the stay on the implementation of the order made on 15 December 2020 for a very limited time to permit the family and/or the Polish government to seek to persuade the ECtHR to make a different order from that made so far  [47]. Cohen J  therefore continued the stay until 4 pm on 7 January 2021 [48].

Cite this article as: Frank Cranmer, "End of life care and “best interests”: update" in Law & Religion UK, 15 January 2021, https://lawandreligionuk.com/2021/01/15/end-of-life-care-best-interests-and-article-6-echr-update/

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