Re AH [2021] EWCA  1768 (25 November 2021)

Introduction

  1. The four adult children of AH appealed the order made on 3 September 2021 by Hayden J sitting in the Court of Protection,[1] in which he declared that it was not in AH’s best interests for her to continue to receive life-sustaining treatment, namely, ventilatory treatment after 31 October 2021.
  2. The order was not to take effect until that date to enable AH’s children to make arrangements (including travel from abroad) to be with their mother at the time that ventilatory support was going to be withdrawn. This in itself was highly unusual (namely a declaration that permitted continuation of life-sustaining treatment for a further eight weeks, despite not being in AH’s best interests). However, Hayden J determined that AH herself would have wished to have her family present with her at the time that the ventilatory support was withdrawn.

Background facts

  1. The background is set out in detail in the first instance judgment. To provide some context (see §1071): ‘the Official Solicitor regards it as an understatement to describe the decision in this case as “extremely challenging”. The Official Solicitor identifies it as “the most troubling and tragic of cases of this kind” with which she has been involved’.
  2. By way of brief summary, AH is aged 56 with four children (A, M, S and K). She had a number of underlying health conditions including diabetes but was working and, prior to December 2020 was “leading a happy and fulfilling life”.  AH was admitted to hospital at the end of December 2020 suffering from Covid-19.  Her condition subsequently deteriorated and she required intubation and mechanical ventilation. Her progress has been variable but generally declining; she has been remained in hospital on ventilatory support since admission and is described as being in a minimally conscious state (‘MCS+’).
  3. AH is reported to be the most severely affected patient in the world living with the consequences of contracting Covid-19. She developed a severe inflammatory response, (described as a cytokine/autoimmune ‘storm’), which has caused profound neurological and myopathic conditions, namely: (a) cerebral encephalopathy; (b) brainstem encephalopathy; (c) motor neuronopathy; and (d) necrotising myopathy. Sadly, AH has sustained permanent extensive damage to her nerves, brain and ‘massive’ muscle loss with no prospect of recovery of the muscle.
  4. The NHS Trust sought an order that continuing with ventilatory treatment was not in AH’s best interests, observing that although AH had progressed to MCS+, this has meant that AH has become more aware and distressed following medical and nursing interventions such as deep suctioning to clear her secretions. AH’s family did not agree with the Trust’s proposed treatment plan but some had differing views, albeit they were united in the appeal.
  5. The Official Solicitor considered this to be an “extremely challenging” case and submitted that AH “should continue to be ventilated outside the hospital” and provided with palliative care. Regrettably, the Trust did not consider this to be a feasible option.
  6. Following the conclusion of the hearing, the Judge went to visit AH in hospital.

Grounds of appeal

  1. There were five grounds of appeal. It was contended that the Judge had failed:

(1) to give sufficient consideration to AH’s earlier capacitous decision that she wished to receive “full escalation” of treatment;

(2) 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;

(3) to consider adequately AH’s past and present wishes and feelings;

(4) properly to balance the interference with AH’s human rights under the ECHR.”

and

(5) the Judge’s visit to see AH in hospital 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.

The Court of Appeal’s determination

  1. Delivering the judgment of the court, Moylan LJ dealt with each ground of appeal in turn:

Ground 1

  1. This ground is a reference to the “ReSPECT form” completed at the hospital in December 2020 to ascertain the patient’s views as to their priorities in the event of treatment being required in an emergency. AH had indicated that she wanted “full escalation of treatment”.
  2. Moylan LJ agreed with the Judge that the ReSPECT form “does not bear the weight which Mr Devereux seeks to ascribe to it. It is directed, as is clear from the title, to emergency care and treatment.  It is not directed to long-term treatment and so provides very little assistance to whether AH would want treatment to continue in her current condition which is very far from an emergency”. 

Ground 2

  1. It was argued that the Judge failed 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. The court observed that this was closely aligned to Ground 3 (in effect, the Judge’s conclusion as to AH’s wishes and feelings was flawed because he failed to give sufficient weight to AH’s religious and cultural views when determining her wishes and feelings).
  2. Moylan LJ noted that the Judge had taken into account the fact that “AH’s religious and cultural views are integral to her character and personality”. This was consistent with the submissions made by Ms Khalique that religion “was a central part of [AH’s] life” but also observed that Hayden J had explored this issue and had made it clear that he was not prepared to make any assumption “that AH would have taken a particular theological position on her treatment plan solely because she is a Muslim, even an observant one”, noting that “there is a range of opinion, within this Muslim family, as to what is the right course to take”.
  3. There was no independent theological expert opinion sought in the court below but it was plain during that hearing that AH’s family, who were all practising Muslims, interpreted the meaning of sanctity of life subjectively.
  4. Finally, Moylan LJ stated that “the weight to be given to a particular factor is for the trial judge and not for this Court [of Appeal]”.

Ground 3

  1. The appellants contended that the Judge had failed adequately to consider AH’s past and present wishes and feelings and that his conclusion on this was “disconnected from the evidence”, because he “ignored” the evidence from the children as to what AH would want. Moylan LJ acknowledged that Hayden J did not address the evidence from AH’s children on this issue “in as much detail as he might have done” but did not accept that the Judge had ignored their evidence. 
  2. The Court of Appeal was not persuaded that the Judge did not adequately consider AH’s wishes and feelings (referring to evidence of this and his reasoning at paragraphs [79]-[95] in the first instance judgment and again in the Judge’s conclusions).

Ground 4

  1. As to this ground, the court held that it ‘adds nothing’ and that the balance to be applied when considering the interference with AH’s human rights under the ECHR is whether to continue to provide ventilatory treatment is or is not in AH’s best interests, which was clearly applied by the Judge.

Ground 5

  1. The Court of Appeal was however, persuaded to grant the appeal on the basis of ground 5 emphasising that in cases which concern the continuation of life-sustaining treatment it is particularly important that the process leading to the decision is not procedurally flawed.
  2. In his analysis, Moylan J stated:

I agree that what happened when the Judge saw AH in hospital is capable of more than one interpretation......The language used by the Judge is capable of indicating that he did consider that AH had given him some insight into her wishes.  The words, “I got the clear impression she wanted some peace, she showed me that she did” are capable of that interpretation.

  1. The court concluded that the Judge’s decision was undermined for two reasons:
  1. First the Judge was not equipped properly to gain any insight into AH’s wishes and feelings from his visit not least because her complex medical condition meant that he was not qualified to make any such assessment;
  2. Secondly, in order to ensure procedural fairness, the parties needed to be informed about this and given an opportunity to make submissions.

Guidance on judicial visits to P

  1. The Court of Appeal was troubled by the lack of clarity as to the purpose of the judicial visit in this case and accepted the submission made by the Official Solicitor, that further consideration needed to be given as to what guidance should be given in addition to or in place of that provided by Charles J “Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings”, in 2016 as Vice-President of the Court of Protection.[2]

Interim guidance

  1. Until further guidance is published, Moylan LJ proposed that the following matters be determined before any visit takes place and after hearing submissions or observations from the parties:

(a) Whether the judge will visit P;

(b) The purpose of any visit;

(c) When the visit is to take place and the structure of the visit (in other words, how the visit it to be managed; what is to happen during it; and whether it is to be recorded and/or a note taken);

(d)  What is to happen after the visit.  This will include, depending on the purpose of the visit, how the parties are to be informed what occurred; when and how this is to happen; and how this will fit within the hearing so as to enable it to be addressed as part of the parties’ respective cases.

Sir Andrew McFarlane, President of the Court of Protection:

  1. The issues outlined by Moylan LJ were echoed in a short affirming judgment handed down by the President:

This appeal has demonstrated that it is now the practice of some, and it may be many, judges in the Court of Protection [‘CoP’] to visit the subject of the proceedings, P, when it is not possible for P otherwise to join in the proceedings.  Such a practice may well be of value in an appropriate case.  It is, however, important that at all stages and in every case there is clarity over the purpose of the encounter and focus on the fact that at all times the judge is acting in a judicial role in ongoing court proceedings which have yet to be concluded.

In the present case there was, regrettably, a lack of clarity over the purpose of the visit and the role of the judge in undertaking it.  If, as my Lords and I have accepted, it may have been the case that Hayden J was seeking to obtain some indication of AH’s wishes and feelings, then great care was needed both in the conduct of the judicial interview and the manner in which it was reported back to the parties so that a fair, open and informed process of evaluation could then be undertaken within the proceedings.

More generally, the light shone by this case on the apparently developing practice of judicial visits to P indicates that there is a pressing need for the CoP to develop some workable guidance for practitioners and judges in a manner similar to that which is available in the Family Court with regard to judges meeting with children who are subject to contested proceedings.  Whilst the circumstances in a children case, and the reasons for any judicial encounter, may differ from those that apply in the CoP, the need for clarity of purpose and procedural fairness are likely to be the same.  In recent times, the CoP has established a multi-disciplinary forum known as ‘The Hive’ in which matters of professional and jurisdictional importance are debated and developed.  I propose to invite ‘The Hive’ urgently to consider the issue of judicial meetings with P so that a Practice Direction or Presidential Guidance on the topic may be issued.  Pending such direction or guidance, I would endorse the approach described by Moylan LJ at paragraph 75 of his judgment.”

Conclusions

  1. In respect of all but one ground, the Court refused the appeal, finding that Hayden J had taken into account relevant factors (contrary to the appellants’ grounds of challenge 1-4) in his best interests analysis, and was entitled to attach greater/less weight to those factors he considered to have greater or less importance.
  2. Significantly, there was no criticism of Hayden J’s conclusion that, notwithstanding that AH was an observant Muslim, she would not have taken a particular religious view on her treatment, and as such her religious and cultural views were not magnetic factors, determinative of best interests; it was one of many factors taken into account when conducting the balancing exercise (and which the Court of Appeal observed was ultimately a matter for the trial judge).

Nageena Khalique QC represented AH, instructed by her litigation friend, the Official Solicitor.  Katie Gollop QC also of Serjeants’ Inn Chambers represented the NHS Trust (instructed by Kennedys).

 

[1] [2021] EWCOP 51 – judgment here

[2] That guidance (here) only touches very briefly, at §14, on meetings with the judge.

 

For Katie Gollop QC's analysis, please see our website here.