Hospital withdraws food and fluids from a disabled man after ECHR green light8 January 2021 Issued by: Christian Legal Centre
In the evening of 7 January 2021, University Hospitals Plymouth NHS Trust withdrew all nutrition and hydration from a middle-aged Polish man, referred to only as “RS”, in the centre of the ‘right to life’ legal battle fought by his mother against the doctors. The withdrawal of fluids means that the man will inevitably die of dehydration as a matter of a few days.
The withdrawal took place a few hours after a judge of the European Court of Human Rights, Yonko Grozev, issued a decision which declared the family’s application to ECHR “inadmissible”. The decision of Mr Grozev, a judge appointed by Bulgaria, does not give any substantive reasons for the decision.
RS’s mother, two sisters, and niece, supported by the Christian Legal Centre, applied to the ECHR claiming that the decision of the UK Court of Protection violated RS’s right to life. The government of Poland intervened in the proceedings, asking the European Court to make an urgent interim order compelling the UK to provide food and fluids to RS, a Polish citizen, until the dispute is resolved.
Yesterday’s ECHR decision takes away the family’s last hope to save RS’s life.
It is also an affront to the government of Poland, after its Foreign Minister, Zbignew Rau, sent a formal urgent request to the UK Foreign Secretary Dominic Raab, asking for cooperation in repatriating RS to Poland. Mr Rau’s letter, sent on 26 December, undertook to use Poland’s Medical Air Rescue Service to take RS for treatment in the Interior Ministry’s Central Clinical Hospital in Warsaw. A similar proposal was earlier sent by the Polish Ministry of Justice to the Lord Chancellor, Robert Buckland, on Christmas Eve.
Sustaining life “not in his best interests”
After RS was taken to hospital following a heart attack in early November, the doctors at University Hospital Plymouth NHS Trust concluded within a few days that it was in his best interests to withdraw all life-sustaining treatment. In the end of November, an application was made to the Court of Protection to resolve the dispute with RS’s mother and other members of his family, who insisted on preserving his life.
Following an online court hearing earlier in mid-December, Mr Justice Cohen agreed with the NHS doctors that, with appropriate treatment and care, RS could survive “for up to five years or more”. Since the heart attack RS has been recovering, but the judge found that he would never recover beyond “a minimally conscious state” where he could barely “acknowledge a presence of another human being”.
RS’s wife, who lives with him in England, tearfully told the Court that RS was a devout Catholic who believed that every life is precious, but also said that if he became seriously ill and “beyond saving”, he would not want to be a “burden” on his family. RS wanted to be buried in Poland when he dies. The judge refused to allow any questions to be asked to RS’s wife by the lawyers acting for other members of his family, as she was distressed.
In his judgment the judge found that RS “would not want to be kept alive in a state which provides him with no capacity to obtain any pleasure and which is so upsetting to his wife and children”. The judge concluded that it was not in RS’s best interests to be kept alive.
RS’s mother has already spent most of her savings trying to save her son. Her fight to save her son’s life is supported by her children and grandchildren, although not by RS’s wife.
The Christian Legal Centre – the same pro-life group which helped the parents of Alfie Evans at the final stage of their dramatic legal battle to save the infant’s life in 2018 – has agreed to cover the future legal costs of the impoverished family.
The family says RS holds strong pro-life views, and was outraged by the decision to remove Alfie’s life support; it is ironic that he now finds himself a victim of a similar decision.
“We have done cases of this kind out of number”
The appeal from members of RS’s family was considered at an urgent hearing on 23 December, chaired by Lady Justice King, who in 2018 dismissed three appeals by the parents of Alfie Evans against the orders to withdraw his life support. At the hearing in the Court of Appeal, she commented in open court: “Sadly, we have all done cases of this kind out of number. We’ve done trials as a matter of hours. We are all used to dealing with these cases at short notice.”
The family complained that they were given too short a notice of the trial, and had only two working days to instruct lawyers and prepare the evidence. The family’s lawyers pointed out that earlier cases of this kind were much rarer, and would only be decided “after many months of tests and with mountains of expert evidence, as well as intense examination of evidence from those who knew the patient to understand his perspective”. They argued that RS’s case was “an example of the pendulum having swung too far the opposite way”, where a rushed decision was made without a proper examination of RS’s Christian belief in the sanctity of life.
The family asked for a short delay in the withdrawal of nutrition and fluids to enable RS’s elderly mother to fly from Poland to the UK to say goodbye to her son. However, Lady Justice King emphasised that was a matter for the Hospital, and the Court’s order came into force immediately. The same evening, RS’s mother booked the earliest available flight to see her son on Sunday. However, on Christmas Eve the Hospital informed the family that nutrition and fluids have already been withdrawn. Messages begging doctors to continue hydration until RS’s mother’s arrival were left unanswered.
RS’s survival causes “anguish for the clinical team”
The family made an urgent application to the European Court of Human Rights for the violation of RS’s right to life. The government of Poland declared that it wished to intervene to support the family’s case against the UK, and made its own application to ECHR to compel the UK to permit his repatriation. The European Court has indicated that the case will be heard on an urgent basis in early 2021.
The family has spent a rare 30-minute visit permitted by the Hospital taking videos of RS, and have asked an eminent neurological consultant, Rev Dr Patrick Pullicino, to interpret that evidence. In a written opinion, Dr Pullicino observed that the videos showed “a clear emotional response to the presence of family members”, and might indicate that RS’s prospects of recovery were better than suggested by the Hospital. He recommended further tests which could help to diagnose RS’s condition.
At an urgent hearing on 28 December, Mr Justice Holman suspended the permission to withhold nutrition and fluids from RS until this new evidence could be considered by Mr Justice Cohen. By that time, RS had already spent five days without being given any fluids, and the Hospital had written to the family to confirm he was “at the end of his life” and was expected to die within 24 to 48 hours.
However, at the hearing on Thursday 30 December, the doctors working for the Hospital told the Court that RS’s condition had not changed. The treating consultant (who cannot be named under the reporting restrictions) said: “We feel very strongly that his outcome won’t be one which would satisfy him. We should be palliating him, and that period should be made as short as possible, not prolonged by providing hydration.” When asked by the family’s barrister, Charles Foster, about a possible transfer of RS to his country of origin, the consultant emotionally retorted that the family’s new application to the court had already forced the clinicians to stop administering palliative treatment such as morphine and midazolam, and that was causing “anguish for the clinical team”. He added: “I find it quite offensive to suggest that he should be transferred to another country, where he could die in transit away from his family.”
Diplomats from the Polish Embassy attended the online court hearing, and made submissions to Mr Justice Cohen.
However, Mr Justice Cohen said: “I unhesitatingly reject the suggestion that he should be moved overseas”. He agreed with the treating doctor’s concern that RS might “die in transit” as a result – instead of dying in a hospital bed if hydration is withdrawn. The judge initially imposed reporting restrictions prohibiting any mention of Poland as RS’s country of origin, but changed his mind and lifted the ban on Friday 31 December.
Mr Justice Cohen also rejected the evidence of Dr Pullicino, who told the court that the videos taken by the family indicated that RS was making a speedy recovery, and had a 50% chance of eventually recovering to live an independent life within his own home. The judge He refused the family’s request for permission to arrange for an examination of RS by Dr Pullicino or another neurologist.
The Hospital had already withdrawn nutrition and hydration from RS on Christmas Eve, following a Court of Appeal decision the day before, but then reinstated hydration five days later on the orders of Mr Justice Holman. The Hospital the agreed to delay the withdrawal until 4 pm on Thursday 7 January, to await a decision of the European Court of Human Rights.
A form of euthanasia
RS’s mother (whose name cannot be published under the Court order) said: “I am devastated that the British authorities have decided to dehydrate my son to death. I want to take my son back to his own country, where I would be allowed to care for him. What the British authorities are trying to do to my son is euthanasia by the back door.
“I am grateful to the Polish government for everything it has already done, and implore them to redouble their efforts, honouring their constitutional duties to protect the sanctity of life and to protect Polish citizens everywhere in the world. I feel so helpless in this situation. The only thing I can now do is pray for a miracle.”