Z v University Hospitals Plymouth NHS Trust & Anor (Rev 3)

In best-interests decisions about life-sustaining treatment, the court must consider welfare in the widest sense and all relevant circumstances. These include the patient’s ascertainable wishes, feelings, beliefs and values, medical prospects, and the views of those interested in the patient’s welfare. The starting point that life should be preserved is important but not absolute. Strong religious belief and the sanctity of life are relevant but do not determine the outcome. Even the patient’s wishes, though highly important, are not conclusive. Court of Protection proceedings are inquisitorial, with no absolute right to cross-examine family witnesses. Inquiries must be sufficiently thorough but need not be prolonged where no useful further evidence is identified. A confidential communication will not necessarily invalidate a decision where it had no influence on the outcome.

RS suffered a cardiac arrest and remained in a coma with a very poor prognosis. The Court of Protection, before Mr Justice Cohen, decided on 15 December 2020 that continued life-sustaining treatment, including ventilation, nutrition and fluids, was not in his best interests.

RS’s niece, Z, sought permission to appeal. She accepted that the conclusion was open on the evidence but alleged serious procedural unfairness. She argued that the inquiry into RS’s Catholic faith and likely wishes had been insufficient, that the hearing had proceeded too quickly, that cross-examination of RS’s wife had been curtailed, and that a confidential letter had been received without disclosure. The central issue was whether the decision was wrong or unjust because of a serious procedural or other irregularity.

Disposition

The application for permission to appeal was refused. The decision below was neither wrong nor unjust, and the proposed appeal had no real prospect of success.

1. Applicable appellate threshold. Under Civil Procedure Rules 1998, CPR 52.21, an appeal could succeed only if the decision was wrong or unjust because of a serious procedural or other irregularity. Permission also required a real prospect of success or a compelling reason for the appeal to be heard. Neither threshold was met.
2. Best interests and the pace of the inquiry. The first-instance judge had correctly considered the framework under sections 1 and 4 of the Mental Capacity Act 2005. The approach required attention to RS’s welfare in the widest sense, his medical prospects, his likely attitude, his religious beliefs and values, and the views of those close to him. Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 was treated as supporting that approach. The sanctity of life and strong religious belief were given substantial weight, but were not decisive. RS’s ascertainable wishes were the most important factor, but remained part of the overall best-interests assessment.
3. The gravity of such decisions required due consideration and sufficient time and resources. However, inquiries should be prolonged only where further investigation could provide useful information. The Court of Protection had obtained concordant medical evidence, heard the relevant family evidence, and had no practical basis for concluding that delay would improve the assessment. The Trust had also properly applied to the Court of Protection in circumstances of family disagreement, as contemplated by NHS Trust v Y [2019] AC 978.
4. Evidence and cross-examination. Court of Protection proceedings are essentially inquisitorial rather than adversarial, as explained in Cheshire West and Cheshire Council v P and M [2011] EWHC 1330. Rule 14.2 of the Court of Protection Rules 2017 gives the court broad control over the issues, nature and form of evidence, including the power to allow or limit cross-examination. There is no absolute right to cross-examine, and adversarial questioning of family members acting in good faith is likely to have little value in a case of this kind.
5. Confidential communication. It would have been preferable for the judge to make clear that any further communication should normally be disclosed and that no undisclosed matter would be given weight. Nevertheless, the communication did not amount to a serious procedural error. The judgment was founded on evidence known to the parties and contained no indication that the letter influenced the decision. The Article 6 complaint therefore failed.

• Court of Appeal (Civil Division): On 23 December 2020, refused Z’s application for permission to appeal from the Court of Protection decision.
• Court of Protection: Mr Justice Cohen decided on 15 December 2020 that continued life-sustaining treatment was not in RS’s best interests. No citation for that decision is stated in the judgment.