Re- AH
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Sir Nicholas Patten,Sir Andrew McFarlane |
| Judgment Date | 25 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1768 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-000012 |
[2021] EWCA Civ 1768
Sir Andrew McFarlane
(President of the Court of Protection)
Lord Justice Moylan
and
Sir Nicholas Patten
Case No: CA-2021-000012
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
MR JUSTICE HAYDEN
[2021] EWCOP 51
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Devereux QC (acting pro bono) and Olivia Kirkbride (instructed by Dawson Cornwell Solicitors) for the Appellants
Katie Gollop QC (instructed by Kennedys Law LLP) for the First Respondent
Nageena Khalique QC (instructed by The Official Solicitor) for the Second Respondent
Hearing date: 2 November 2021
Approved Judgment
This case concerns the medical treatment of a person who, as in the judgment below, I will call AH. Her children apply for permission to appeal and, if permission is granted, to appeal from the order made on 3 September 2021 by Hayden J sitting in the Court of Protection. He declared that it was not in AH's best interests for her to continue to receive ventilatory treatment after 31 October 2021. The declaration did not take immediate effect because the Judge decided that a period should be allowed to enable family members to travel to see AH. The Judge's order has been stayed pending this court's determination.
At the hearing before the Judge, the children were acting in person. They have been represented at this appeal by Mr Devereux QC, Ms Kirkbride and their instructing solicitors, Dawson Cornwell, all acting pro bono. The NHS Trust is represented, as below, by Miss Gollop QC. The Official Solicitor, acting as AH's litigation friend, is represented by Ms Khalique QC, who also appeared below.
Initially, the application for permission to appeal relied on four grounds of appeal. It was contended that the Judge had failed:
“(a) to give sufficient consideration to AH's earlier capacitous decision that she wished to receive “full escalation” of treatment;
(b) to appreciate the overwhelming importance to AH of her religious and cultural views and the impact of those views in relation to the withdrawal of medical treatment;
(c) to consider adequately AH's past and present wishes and feelings;
(d) properly to balance the interference with AH's human rights under the ECHR.”
Then, shortly before the hearing in this court, the Appellants received a Note (prepared by a representative of the Official Solicitor) of the Judge's visit to hospital to see AH, which had taken place after the parties had made their respective final submissions and before the Judge gave judgment. This led to a fifth ground of appeal being advanced, namely that the Judge's visit was wrongly used by him as an “evidence gathering exercise to establish what AH's views were”, which “likely influenced his overall conclusions”, and that this rendered his decision procedurally unfair because the parties were not given the Note of the visit, nor given an opportunity to make submissions in respect of the visit, prior to the judgment.
Mr Devereux emphasised in his submissions that the family recognise the care and “strikingly evident humanity” with which the Judge conducted the hearing and the manner in which he “interacted with the family in a deeply compassionate way”. He also acknowledged the Judge's considerable expertise in cases under the Mental Capacity Act 2005 (“the MCA 2005”).
At the outset of the hearing before us, the application for permission to appeal was opposed by the Trust while the Official Solicitor was neutral. However, when Ms Khalique came to make her oral submissions, the Official Solicitor's position had changed and she supported the appeal.
Background and Hayden J's Judgment
The background is set out in detail in the Judge's judgment which is published: [2021] EWCOP 51.
AH is aged 56. She has four children, called in the judgment A, M, S and K. She had some underlying health conditions but was working and, as set out in one of the statements, prior to December 2020 was “leading a happy and fulfilling life”.
AH was admitted to hospital at the end of December 2020 and was diagnosed as suffering from Covid-19. She has been cared for in hospital since then.
The Judge heard evidence and submissions over the course of three days. He had a significant amount of written and oral evidence. He had statements from the doctors (a Consultant Neurologist, Dr B, and a Consultant Intensivist, Dr A) responsible for treating AH in hospital and from the senior nurse responsible for the delivery of AH's nursing care. He had a report from Professor Wade, a Consultant in Neurological Rehabilitation, who had provided an independent opinion at the request of the treating clinicians and an expert report, provided for the proceedings, by Dr Danbury, a Consultant Intensive Care Physician. He had statements from each of AH's children and from AH's sister. The Judge heard oral evidence from all the doctors, from the nurse and from AH's family.
As the Judge states, at [96], there is “no doubt that AH lacks capacity to take her own decisions in relation to medical treatment”. The issue, therefore, that he had to determine was whether it was in AH's best interests for her to continue to receive life-sustaining treatment, namely ventilatory treatment. The unanimous medical opinion from the treating clinicians, Professor Wade and Dr Danbury (who described his opinion as “finely balanced”) was that it was not in AH's best interests for her to continue to receive ventilation.
The Trust sought an order that such treatment was not in AH's best interests. As set out below, AH's family had differing views with some opposing the Trust and others, if not agreeing with, not actively opposing the Trust. In her closing submissions, the Official Solicitor described this as an “ extremely challenging” case (original emphasis) and submitted, as set out in the judgment at [103], that AH “should continue to be ventilated outside the hospital”.
Following the conclusion of the hearing, the Judge went to visit AH in hospital. This visit was the focus of the fifth ground of appeal, as referred to above, and I propose to deal with it in some detail.
From the outset of the hearing, it is plain from the transcript that the Judge was considering going to see AH in hospital. There were a number of occasions during the hearing at which it was suggested, including on behalf of the family, that the Judge should go to the hospital. However, it is also clear that at no stage was there any discussion about the purposes of any proposed visit or how, procedurally, it would fit within or affect the hearing.
At the conclusion of the hearing, the Judge indicated that he would visit AH in hospital. This led to a very brief exchange with one of AH's children (A) as to whether, when the Judge visited, he would “ask her yourself”. This was because, as A explained, he had gained the impression when he had been giving his oral evidence that the Judge “felt when I asked, she was saying to please me”. This was a reference back to an exchange which had occurred during the course of A's oral evidence.
It appears from the transcript that A gave evidence of his belief that his mother had shaken her head when he had asked whether she wanted to end her life. The Judge had suggested to A that the response AH gave would or might depend on how the question was phrased. The Judge commented that the answer might be different if she was asked “are you tired, do you want some peace”.
A few days after the end of the hearing, the Judge went to see AH in hospital. He spent some time with AH with only a nurse and a representative of the Official Solicitor present. As referred to above, a careful Note was taken by the latter. The Judge spoke to AH, who appeared to be distressed and was crying. The Judge said that he did not know what AH wanted and that “it's very, very hard for you to tell me”. He then said, “I think it may be that you want some peace”. Later, he said: “It is not easy for you to communicate, but I think I am getting the message”.
The Judge then left the ward and saw two of AH's children. A asked the Judge whether he had asked her “the question”. The Judge replied that he “got the clear impression she wanted some peace, she showed me that she did”.
In his judgment, the Judge sets out his reasons for concluding that it was not in AH's best interests for her to continue to be on a ventilator.
The judgment describes, in detail, the manner in which AH's condition has developed since she was admitted to hospital. In summary, at [4], in January/February 2021 AH “developed a severe inflammatory response, a recognised complication of Covid-19, with hyperpyrexia (life threateningly high temperature) and other problems leading to multi-organ failure. She required renal dialysis, ventilation and sedation”. The Judge later describes this episode, at [63], as a “cytokine/autoimmune ‘storm’” which has caused “devastating neurological” and other damage; “Dr B and Dr Danbury have seen similar ‘storms’ in other patients critically ill with Covid-19 although neither has seen damage as extensive as that sustained by AH”.
The medical evidence was agreed that AH has sustained a number of profound neurological and myopathic conditions which are permanent, namely: (a) cerebral encephalopathy; (b) brainstem encephalopathy; (c) motor neuronopathy; and (d) necrotising myopathy. In non-medical language, AH has sustained, at [63], “extensive damage” to her nerves, muscles and brain. As set out in the judgment, at [64], “the muscle loss is ‘ ...
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...described.” 67 Lastly, a judicial visit to an adult in hospital was considered in Re AH (Court of Protection — Judicial Visits) [2021] EWCA Civ 1768, [2022] 1 WLR 2437. Moylan LJ explained that the appeal would be allowed for two reasons: “71 … First, it is strongly arguable that the judg......