Unfounded challenges to clinical decisions

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Mr RS was in his middle age when in November 2020 he suffered 45 minutes of cardiac standstill. Five weeks later, he remained in a coma. All involved in his case accepted that he would never recover beyond a low level, minimally conscious state. Mr RS was born in Poland and raised as a Catholic. He moved to England 17 years ago, married, and had three children. Since his marriage a deep rift had developed between RS and his mother, siblings and niece (‘birth family’).

His case was referred to a court by the hospital trust who sought a declaration that, amongst other things, it was not in RS’s best interests to continue to receive clinically assisted nutrition and hydration (CANH). This application was supported by his wife, who told the court that her husband would not want to live in his current condition. She recalled him saying that he would not want to be kept alive if he was ‘beyond saving’.

The application was opposed by his birth family, their opposition largely founded in RS’s religious faith, his previous adherence to the tenets of Catholicism and their relevance in these circumstances. They asserted that the preservation of his life would outweigh all other factors in RS’s thinking.

The court placed much greater weight on RS’s wife’s evidence, not least because she had known him ‘so much better than anyone else’. The judge did not accept that RS’s religious beliefs were misrepresented by his wife’s evidence, and it did not follow from his beliefs that he would wish to be kept alive in a coma, or a vegetative or minimally conscious state. Accordingly, the court made the declaration sought by the Trust and the hospital then withdrew CANH, commencing palliative care to maintain RS's dignity and ensure there was no unnecessary suffering.

Eight days later, on Christmas Eve, the birth family sought permission to appeal the decision. No challenge was made to contend that the judge’s decision was wrong, or to the medical consensus (agreed between Trust and birth family’s experts) on prognosis. The core submission was that the decision was unjust because there had been insufficient judicial inquiry into the influence that RS’s Catholic faith would have had on how he would have wanted to be treated. Although the new court found no arguable case that the original judge’s decision was unjust, and refused permission to appeal, the following day the birth family, having exhausted English legal avenues, applied to the European Court of Human Rights (ECtHR). This was refused. A further application to the ECtHR was made four days later, and again refused.

This legal manoeuvring was not victim-free. Each time further reference was made to any court, the original declaration to cease RS’s CANH and commence palliative care was reversed, albeit temporarily.

Following these first four applications, the birth family arranged for covert video filming of RS in hospital, obtaining 3 minutes of footage, duping RS’s wife in claiming that the purpose of their hospital visit was to ‘say goodbye’. They also arranged for medical evidence to support the contention that RS might yet recover, and that RS should be moved to Poland for further treatment. The evidence to support this proposal was given by a doctor who had never seen any written clinical records, nor spoken to any member of the clinical team, seen any imaging or EEGs, examined the patient, nor read any previous judgements referring to RS. The judge felt unable to place any weight in the resulting report, and held that there was no basis to change his original decision. He unhesitatingly rejected the suggestion that RS should be moved overseas, for several good reasons.

The legal story appears to have closed after a final hearing in the Court of Appeal, where the birth family sought to overturn the previous decision. The Court of Appeal found no flaw in judicial reasoning, and deplored the disrespectful, underhand duplicity employed by the birth family in obtaining covert video recording. The Court re-examined the birth family’s medical expert evidence, and found that it ‘lacked every characteristic of credible evidence’, rejecting it as ‘effectively worthless’.

More significantly, the appeal court explicitly noted that the measures employed by the birth family must not be allowed to distract attention from the wishes and feelings of RS himself, as found by the court, or from the plight of his wife and children who had to endure the multiple proceedings in addition to the loss of a husband and father from their daily lives. In the concluding words of Lady Justice King: