The Christian Legal Centre’s Roger Kiska comments on the case of RS, the Polish citizen dehydrated to death by court order.
Early in the afternoon of 26 January 2021, the middle-aged Polish citizen referred to in court documents simply as RS, passed away after being deprived of fluids and nutrition by University Hospital Plymouth NHS Trust after petitioning for a court order to do so. His cause of death may be recorded as having occurred as a result of prolonged dehydration, however that is merely the consequent cause of death. The actual and antecedent cause of death was the stroke of a judge’s pen decreeing that this man’s life had no more worth and that it would be in his best interests to die.
So powerful are our courts that they cannot only take a life, but they can take our humanity as well. By publicly taking away his name and bestowing on him random initials, they took away his humanness, they sterilised the possibility of public emotional attachment; by threat of criminal sanction they forbade his family from shouting to the world what was being done to him. RS was not just a set of initials – he was a father, a husband, a brother and uncle, a son, a proud Polish man and a devoted Catholic. Those who fought for him spent the last weeks often working throughout the nights, holidays and weekends to try and save his life. That alone proves just how wrong the courts were to imply that his life no longer had meaning.
Sustaining life ‘not in his best interest’
In early November, RS suffered a heart attack. In the absence of blood flow, he sustained brain damage as a result of a lack of oxygen. Within a few days of being admitted, doctors at University Hospital Plymouth NHS Trust concluded that it was in his best interests that all life sustaining care, including hydration and nutrition, be withdrawn. At the end of November, an application was made to the Court of Protection to resolve the dispute between RS’s mother and other members of his family, both in Poland and in the UK, who insisted that he be kept alive.
Following an online court hearing earlier in mid-December, Mr Justice Cohen agreed with the hospital’s motion and issued an order to withdraw treatment and care with the inevitable result being death. This decision was made despite the finding that he could live for up to five to ten years more, that he was still in the early stages of recovery and that there was still room for improvement; it was made despite the fact that in a minimally conscious state there was a chance that he could acknowledge the presence of other human beings.
An insurmountable hill to climb
There are many fundamental problems underlying such cases. First and foremost, they are rushed, and those wishing to preserve life are given an inappropriately short amount of time to prepare a defence. Second, there is also an utter lack of equality of arms, with the hospital having seemingly unlimited resources to use the best lawyers while the grieving families have to hire their own lawyers, often at a huge expense. Third, in almost all of these contested cases, the Court of Protection overwhelmingly finds in favour of the petitioning hospital, and the Official Solicitor, meant to protect the interests of the patient in question, instead seeks withdrawal of treatment rather than continued care.
It is within these circumstances that RS’s mother and other family members found themselves, making it almost impossible during the crucial fact-finding stage of proceedings to contest medical evidence. Therein lies the next and essentially insurmountable hurdle facing families; that once those initial findings become part of the first judgment, they become almost impossible to overcome. While it is true that parties are allowed to appeal an adverse judgment, the initial finding of fact by a single judge are almost impenetrable. The higher appellate courts do not hear the cases afresh. They must accept the facts as they come to them unless they are clearly erroneous; focusing much more on the procedural aspects of the case instead of whether the judge came to right conclusion or not.
By the time a family is able to find its own medical experts and begin to produce evidence which undermines those initial findings, as was the case here, it is too late. The threshold for impeaching earlier medical findings is simply insurmountable. The court’s insistence that the integrity of its procedure, no matter how rigid it is, and that their rulings be dealt with the utmost expedience, despite legitimate reasons for delaying course, is found to be more important than the life at stake.
Semantics aside, this is euthanasia
It really is quite remarkable what words can accomplish. Giving someone an injection to hasten their death is deemed euthanasia, whereas removing life sustaining nutrition and hydration, despite accomplishing the same goal but in a much more degrading, inhumane and prolonged way, is not. It is a simple matter of fact that food and hydration are life sustaining for each of us, whether we are in a hospital bed or not.
How can we not call it state ordered killing if in addition to allowing for the withdrawal of basic care, we prevent others from providing that care to the individual?
Some illustrations suffice to prove the point. If I have an infant in my care, unable because of their developmental immaturity to feed and hydrate themselves, and I decide that, given what an awful world we live in and what a bleak future faces that child, that it would be better for that baby not to live, and I decide to stop feeding and hydrating them and prevent others from doing so, I would de facto be guilty of murder if that child died. The same would be true if I had in my care anyone with a disability who was incapable of feeding or hydrating themselves.
The only difference being between these two scenarios and a Court of Protection case is that in the latter, the person making the decision is wearing a robe and has the power of the state behind them. Despite how these rulings are dressed up in medical terminology, there is no science involved in these deliberations. The judge is working from a wholly subjective philosophical understanding of whether they believe a particular individual’s life is worth living or not. That decision is almost always based on a felicific calculous, that being whether the person can derive pleasure or not, rather that any inherent value life has on its own. A judge has no better understanding of the meaning of life or its worth than any person we may find in a pub, on the tube or in any walk of life. And if the integrity of the entire judicial system demands that we kill to protect legal procedure rather than exhibit caution and compassion, I am not sure it is much of system at all.
Behind the scenes
Like with so many things in life, what is seen on the surface rarely reflects the reality of a given situation. The Christian Legal Centre, for taking part in cases like this one or the Alfie Evans case, has received a tremendous amount of hate and vitriol pointed in its direction.
It’s easy for those critics to make snap judgments because they really have no idea what is involved in cases of this nature. They are not there working throughout the night for days at a time, being at the side of these family members, and seeing how insurmountable the system is. They cannot see from behind their computer screens, how the scales of justice are weighted so heavily against these families or how draconian reporting restrictions frustrate their ability to share their story with the world. Nor do they know all that goes on behind the scenes, the consultations with other medical experts and lawyers, or the facilitating of diplomatic involvement.
Cases like this require exhaustive appeals processes, expert legal knowledge and a dogged work ethic. They require blood, sweat and often a lot of tears. They require huge amounts of coordination as well. The will and the energy for all of this comes from our proximity to these families which are fighting a cold and bureaucratic system to save their loved one from certain death. These are families who know that the very people who are charged with caring for their loved one are the ones fighting tooth and nail in court to end that person’s life.
The role of Poland
An aspect that makes this case unique is that RS was not a UK citizen. He was Polish and according to his family he wished to return to Poland one day. The Polish government did all that they could to protect their own citizen.
Before taking more formal action, the Polish government, vis-à-vis its Embassy, participated in the later stages of the appeals process seeking to keep him alive and to have their citizen returned to Poland at their own expense. They also sought to be joined the family’s appeal to the European Court of Human Rights as a third party.
Then, on 20 January 2020, a Polish Court, by motion of the Prosecutor’s office, declared RS as entirely incapacitated and as a permanent resident of Poland and therefore within its jurisdiction. The District Court in Warsaw secured the right of RS to be transported back to Poland.
Around the same time, RS was granted diplomatic status by the Polish Ministry of Foreign Affairs, which further bolstered their right to remove him to Poland because of the diplomatic immunity that was conferred upon him as a result of his diplomatic appointment.
Literally, on the day RS passed away, the Polish Ministries of Justice and Health were to have a meeting with their UK counterparts to have the order withdrawing nutrition and hydration stayed while the Polish government sought to have its court order for repatriating RS effectuated. That meeting never took place at the time set and the UK authorities never got back to the Polish ministers as to when it was to take place and why it did not take place before RS died just hours later.
Whatever the case, it remains a mystery why the order was not stayed given the UK’s (and the hospital’s) knowledge of the developments in Poland. After all, by failing to do so they knew full well that the result of their inaction would lead to death despite Poland having a legitimate legal and diplomatic basis from bringing him home, and a Constitutional obligation to do so. This in and of itself, that the UK would act in such an intentional manner in relation to a citizen of another nation against the express wishes of that nation, in a situation that would end in death, is an international scandal. It is an act I hope the Polish government does not leave unchallenged.
A family divided?
Detractors will point to the fact that RS’s wife supported the hospital’s decision to withdraw treatment as decisive on the matter and grounds for criticising outside involvement. However, this is far from an accurate portrayal of events. An in depth analysis of this question was published by Christian Concern earlier this month and is certainly worth reading.
To be brief, there are more questions than answers when it comes to this issue. First of all, RS’s wife never gave oral evidence in court and was not subjected to cross-examination. Moreover, we know that at an early stage, she called RS’s mother and expressed her disagreement with the hospital and remarked that she was told that she did not have a say in the matter. She also told the Official Solicitor that she would be the last person to remove her husband from life sustaining care if there was any possibility of recovery. She was subsequently told, falsely, that her husband had no brain activity.
We have no way of knowing what her view would have been had she been presented with the medical prognosis in a less one-sided fatalistic way. If she had been told, for example, that there was the possibility that he would be able to recognise her presence and react by squeezing her hand, would her reaction have been different?
Precisely stated, the question of the wife’s freely expressed views over her husband’s ongoing care are far from being clearly answered.
Who decides if life is worth living?
Whatever a single judge writes in a judgment, or whether there is an appellate system geared towards protecting the integrity of that decision, no human being should have the say on whether a life is worth living or not. It is far too subjective of an assessment and open to abuse and personal bias.
RS’s life had meaning and it had worth. His family, the Polish government, the Polish media, and the Polish people, along with many others championed his ongoing life. He life and saga inspired hope. His treatment by the UK authorities also inspired anger and frustration with a system that has so little regard for human dignity and the value of life.
What is clear is that the removing basic humanitarian care, the kind that is even guaranteed to prisoners of war by the Geneva Convention, and then preventing others from providing that care, is killing. No matter how skilful someone is with words, what happened to RS can be dressed up as nothing less. So wilful were these efforts that they obstructed every good intention of the Polish government to bring their own citizen home for care.
If this case does not strike at the very heart of why we need change in this country over life and death questions, then I am afraid we’ve run too far to find our way back home.
Find out more about RS
