Z v University Hospitals Plymouth NHS Trust (NO 2)

In best-interests proceedings, the welfare principle applies whatever the patient’s diagnosis. Article 2 ECHR does not prevent the lawful withdrawal of clinically assisted nutrition and hydration from a person who is not in a vegetative state.

Expert evidence must be confined to what is necessary. A concluded best-interests decision cannot be reopened so that a dissatisfied party may obtain further, inadequately based expert opinions. Reconsideration requires sound and compelling new evidence. A proposed overseas transfer may be rejected where it presents serious risks and discomfort, offers no treatment benefit, and conflicts with the views of the patient’s close family.

RS suffered a severe hypoxic brain injury after a heart attack. Cohen J in the Court of Protection had decided that continued clinically assisted nutrition and hydration (CANH) was not in his best interests. In a later decision, he rejected fresh video-based medical evidence, refused a declaration in favour of CANH, refused a transfer to Poland, and declined to permit the birth family to instruct another expert: [2020] EWCOP 69.

The birth family sought permission to appeal. They alleged procedural unfairness under Article 2 ECHR, a material improvement in RS’s condition, an entitlement to further expert evidence, and errors in the assessment of a proposed transfer to Poland. The central issue was whether any proposed ground had a real prospect of success or another compelling reason to be heard.

1. Application for permission to appeal dismissed. Peter Jackson LJ, with whom King LJ agreed, held that none of the proposed grounds had a real prospect of success and that there was no other compelling reason for an appeal. The court granted only a short stay until 6 pm on 13 January 2021 to allow a further application to the ECtHR.

2. Court of Protection Rules 2017, Part 15 required the court to control expert evidence and restrict it to evidence necessary to resolve the issues. The Court of Protection had appropriately obtained independent advice from Dr Bell. It had also considered the birth family’s video-based evidence. The further evidence from Dr Pullicino and Dr S lacked a reliable evidential basis, and there was no proper basis to admit Dr S’s letter on appeal. Concluded proceedings were not to be reopened simply to allow a dissatisfied party further opportunities to obtain expert evidence.

3. The judge’s finding that the prognosis had not positively changed was securely supported by the updated evidence. Evolution from coma to a vegetative state had been anticipated by the earlier prognosis and did not demonstrate an improvement requiring a fresh best-interests balancing exercise.

4. The Article 2 ground was wrong in law. The welfare principle governed decisions concerning CANH regardless of diagnosis. Airedale NHS Trust v Bland [1993] A.C 789 concerned a person in a vegetative state, but established domestic authority, collected in An NHS Trust v Y [2018] UKSC 46, confirmed that CANH may lawfully be withdrawn from persons who are not in that state.

5. The judge was entitled to reject transfer to Poland. Unrebutted medical evidence established significant transit risks and likely discomfort. No overseas treatment advantage was identified, and the move would have conflicted with the position of RS’s wife and children. It was therefore not in RS’s best interests.

• Court of Appeal (Civil Division): This court dismissed the birth family’s application for permission to appeal: [2021] EWCA Civ 22.
• Court of Protection: Cohen J refused a declaration that CANH was in RS’s best interests, declined transfer to Poland, and refused permission for a further expert report: [2020] EWCOP 69.
• Court of Appeal (Civil Division): An earlier application by RS’s niece for permission to appeal Cohen J’s original best-interests decision was refused: [2020] EWCA Civ 1772.
• Court of Protection: Cohen J’s original decision concerning withdrawal of life-sustaining treatment was reported at [2020] EWCOP 70.