Pavel Stroilov, consultant to the Christian Legal Centre, looks in depth at the important case of ‘R.S.’, a man recovering from a coma, who doctors want to allow to die.
Last Friday Mr Justice Cohen, in the Court of Protection, re-affirmed his decision authorising the University Hospitals Plymouth NHS Trust to withdraw nutrition and hydration from the middle-aged Polish man referred to only as ‘RS’. His order is now to be executed at 4pm on Thursday 7 January, inevitably leading to RS’s death from dehydration in the following few days.
RS’s mother, sisters and niece sought to persuade Cohen J to reconsider his earlier decision. They relied on the videos of RS they had taken when visiting him in hospital on Christmas day, and the opinion of an experienced consultant neurologist, Rev. Dr Patrick Pullicino, that the videos indicated RS was recovering from his brain injury with a reassuring speed, and might yet recover to the extent of eventually becoming independent within his house. The judge severely condemned the family, Dr Pullicino, and the Christian Legal Centre, for “the underhand way in which this evidence was obtained,” which he said was “deeply disrespectful” to RS’s wife and treating clinicians, and “arguably unlawful.” He found Dr Pullicino’s evidence to be unreliable, since he had not examined the patient for a sufficiently long time, did not consider his various test results and medical records, and had not discussed the case with his treating clinicians. He refused permission for any such examination to take place now. He emphasised that neither RS’s wife nor his children were supporting his “birth family’s” last-ditch efforts to save his life.
Because these criticisms are found in a Court judgment, many people will assume them to be impartial conclusions reached following a due process of law. Whether or not they agree with the decision, most people will at least trust that Mr Justice Cohen does not misrepresent the facts.
If you take this view, you know little about what passes for due process in a life-and-death case in the Court of Protection.
Rough justice
On 10 November 2020, Mrs S in Poland received a phone call from her daughter-in-law in the West Country, to be told that four days earlier, her son (‘RS’) had had a heart attack, and was now in a coma in hospital.
The following day, worse news came. The doctors had declared RS “brain dead” and decided to withdraw life support. His wife said she did not agree, but the doctors said it was their decision. When other members of the family (including RS’s sister and niece, who lived in another part of England) contacted the hospital directly, the same thing was told to them over and over again: “you can’t do anything about this, we have taken a clinical decision, it is irreversible, and it is happening tonight”.
“How many doctors took that decision?” asked the sister.
“Two or three”, was the answer.
Having taken legal advice, the family found out that the doctors in fact could not make such a decision if the family disagreed. They either have to come to an agreement with the family, or go to the Court of Protection to resolve the dispute. Claiming “it is for us to decide” and telling the family “you have no choice” is simply a technique to convince the family they have no right to object, and then to record that the family is “content” with the decision. Fortunately, most of RS’s family learned the truth soon enough to know what they needed to do: keep saying no.
There followed two weeks of lengthy meetings and phone calls with doctors, who sought to convince the family to change their minds. The family were told that RS was “basically dying” and that he would never be able to breathe without artificial ventilation. They were accused of behaving “unethically” by objecting to ending RS’s life, because he had been registered as an organ donor in Poland, and would no doubt want to be an organ donor in the UK. They were assured: “This is not euthanasia, euthanasia is illegal”.
The family stood their ground.
Finally, around 21 November, the hospital proposed to arrange for mediation to resolve the dispute. The family agreed. The mediation never took place.
A week later, on 27 November, the hospital’s solicitors sent a letter to RS’s niece to inform her that the Hospital had made an application to the Court of Protection for permission to withdraw artificial ventilation, and “a directions hearing will be listed on the first available date after 7 December 2020” but “no evidence will be heard and no decision will be taken” at that stage. The letter also stated: “Please note that you do not have to be a party to proceedings to submit your own factual evidence and to receive the relevant information about these proceedings. You will be consulted on your views on [RS’s] best interests and the Court will be informed of your views, even if you are not a party.”
The family was advised that they should wait for a call from the Official Solicitor, appointed by the court to represent RS’s interests and to consult members of his family. The call took place on Thursday 3 December, and from what was said, the family could not make out whether the Official Solicitor would be arguing that RS’s life should be saved or ended. The following day, they asked to be joined as a party to the case.
The same Friday evening, they were informed that the ‘directions hearing’ had been cancelled, and the final trial would instead take place on Wednesday 9 December, estimated to take only half a day of the court’s time. The reason for that sudden change remains one of the mysteries of that mysterious court. The only explanation the family was ever given was that a later date would have been inconvenient for the Hospital’s barrister, Vikram Sachdeva QC. Be that as it may, the practical consequence was that the family only had two working days to instruct lawyers and prepare the evidence.
It was in those two days that the documents about the case were first disclosed to the family.
One of the first to come was a frightening document called “the Transparency Order”, containing 27 paragraphs of elaborate rules on how the details of the case must be kept strictly secret. It would be no small job to try and find your way through that minefield. For example, paragraph (5) provided that something called “Practice Direction 4C” was disapplied; but paragraph (2) made it clear that something called “Part 3 of Practice Direction 4A” continued to apply. All that was obviously important, and yet, incomprehensible. In front of all that, however, there was a loud and clear warning that anyone who disobeys this order may be found guilty of contempt of court and sent to prison.
Other documents sent to the family during those frantic preparations for the trial revealed that RS’s condition had improved so much that the doctors believed he was now able to breathe on his own, and would survive the removal of artificial ventilation. So, without even being formally amended, their application to the court changed its nature at the last moment. They were now asking for permission to withdraw nutrition and hydration.
The medical records were only sent to the family’s lawyers the day before the trial. The medical report of Dr Bell (the intensive care consultant who is routinely hired to act as the independent expert in those life-and-death cases, and routinely recommends death) was only provided on the morning of the trial. The family was given no time even to appoint their own expert, let alone let him do the necessary assessments and offer any conclusions. So they had no grounds for disputing the medical evidence. They had to focus instead on the evidence of RS’s Christian and pro-life beliefs, which meant he would want to be kept alive, whatever his chances of recovery.
In his judgment of 15 December, Mr Justice Cohen rejected that evidence. He preferred to believe RS’s wife, who portrayed RS’s views as more nuanced. It was true that he believed in sanctity of life, and would have wanted to be kept alive, but only if he could hope to reach a condition where he could interact with his family – not necessarily talk to them, but acknowledge their presence by some gesture. The doctors assured him that there was no chance of that.
The following day, 16 December, the Hospital stopped giving him nutrition and fluids. By that time, three quarters of RS mother’s lifetime’s savings had been wiped out by the legal fees. She could not afford an appeal. This is when the family came to the Christian Legal Centre for urgent help. They were thus able to instruct a new legal team, make an urgent application, and secure the Hospital’s reluctant agreement to provide food and fluids pending the appeal. It was at that point (on Friday 18 December) that the family’s lawyers first named Rev Dr Pullucino as its neurological expert, and asked for the Hospital’s consent to share the documents with him. The Hospital refused, without an explanation.
On Monday 21 December, the family filed an appeal against the original order to withdraw nutrition and fluids from RS.. With lightning speed, Lady Justice King directed a hearing to take place before herself and Lord Justice Peter Jackson on Wednesday 23 December. They promptly dismissed it. The family asked for a short delay in the withdrawal of nutrition and fluids to enable RS’s 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, the elder Mrs S booked the earliest available flight to see her son. However, on Christmas Eve the hospital informed the family that nutrition and fluids had already been withdrawn. Messages begging doctors to continue hydration until RS’s mother’s arrival were left unanswered.
The siege of the hospital
Throughout all that time, RS’s condition was steadily improving, as if to defy the pessimism of the doctors.
As a result of his heart attack on 6 November, he had suffered a hypoxic brain injury: that is to say, his brain was starved of oxygen until he was resuscitated and his heart started working again.
On 10 November, his wife told his mother that he was looking a lot better than just after his heart attack four days before. Colour had returned to his face, and he seemed to be breathing on his own.
At the end of a very long meeting on 16-17 November, having failed to pressurise the family to agree to a withdrawal of life support, the doctor in charge of RS reluctantly admitted that he began to flex his arm in response to painful stimuli. The family was not told until a week later that he was also now opening his eyes spontaneously.
Around 21 or 22 November, the family was told that they could not come and visit RS in hospital, as that “would not be appropriate” while their dispute with the doctors was going on.
By the time the hospital made its application to the court on 26 November, they only asked for permission to remove artificial ventilation, and were unsure whether he would survive that. The application mentioned the possibility of what they called “full palliation including removal of artificial nutrition and hydration,” but did not initially ask for that to be ordered by the court. By the time of the trial, however, their view changed: RS was clearly able to breathe on his own, and the hospital therefore wanted to the court to order the removal his nutrition and fluids as well.
At the trial on 9 December, the expert instructed by the Official Solicitor, Dr Bell, stated that RS could survive for another 5-10 years, and had a chance of recovering to a ‘minimally conscious state’, where he would be able to be aware of his wife’s presence and react by by gestures such as squeezing her hand.
After the CLC provided the family with a new legal team on 18 December, their new solicitors negotiated a permission to visit RS in hospital again. On Saturday 19 December, RS’s nephew and brother-in-law drove from their home in the North of England to the hospital in the West Country. They were given 40 minutes. For 25 minutes out of that time, they were reprimanded by a nurse for travelling from Tier 3 to Tier 2, and threatened with Covid fines. In the end, they were given 10 minutes with their ‘dying’ relative. They were astonished to see how much better he looked compared to the last time they saw him three weeks ago. He was opening his eyes spontaneously, and seemed to be moving his lips as if trying to say something.
Yet, the following week, the Court of Appeal kept saying that on the basis of agreed medical evidence, RS was still in a coma.
In the meantime, the hospital went back on its promise to stop restricting family visits. They now said that in these Covid times, only one brief visit by each member of the family “to say goodbye” would be permitted.
Here was the problem: how could you show to the courts that RS was, in fact, recovering, not dying? The family’s impressions would be dismissed as wishful thinking. Under the Court of Protection Rules, the family could not instruct its own neurological expert without a special permission of the Court. Moreover, the expert would need cooperation from the hospital to assess the patient, to see his test results and medical records, and to talk to the clinical team. However, the court would only give such a permission if it was persuaded, by evidence, that there was something to investigate – that RS’s condition changed significantly since the Court had made its decision.
Having taken advice from some of the finest legal minds in this area of law, here is what the family did. On Christmas Day, RS’s sister arranged to visit him for half an hour, with her daughter and son, “to say goodbye”, but also to take some videos of him. When RS saw his relatives, he began to cry – this is also captured on the videos. An experienced neurological consultant, Rev. Dr Pullicino, was on a video call with the family, and instructed them how to stimulate RS to see his level of awareness. RS’s responses were recorded on the videos. Dr Pullicino then considered the videos and concluded that, contrary to predictions, RS was likely to be already in a ‘minimally conscious state’, and had every chance of recovering further. He explained what further tests and observations were necessary before a more precise prognosis could be given.
It was under the fresh impression from that video call that Dr Pullicino sent me an email quoted in paragraph 17 of Cohen J’s judgment – the email which concludes: “There is no way he should be left to die.” I responded by a request to put his conclusions in a letter, from which Cohen J also quotes – selectively.
In the meantime, the hospital was losing no time, dehydrating RS to his death since the morning of Christmas Eve – the morning after the Court of Appeal had given its judgment.
In the morning of Sunday 27 December, the family urgently wrote to the hospital’s solicitors and to the Official Solicitor, inclosing the videos and Dr Pullicino’s comments, and asking for an urgent full examination of RS by an independent neurologist. The hospital’s solicitors responded the same evening, to say that the hospital disagreed with Dr Pullucino, in their opinion RS’s condition had not changed, and they would continue to dehydrate him according to plan.
The same evening, the family made an urgent application to Court of Protection. The following evening the duty judge, Mr Justice Holman, ‘stayed the execution’ of what one might insensitively but conveniently call the death sentence, until the evidence could be considered by Mr Justice Cohen two days later, on 30 December. RS was now given fluids again, after a five days’ break. This was a narrow escape.
Rough justice again
As the Court of Appeal noted in its judgment on this case, a tough “adversarial” cross-examination is rare in the “inquisitorial” proceedings of the Court of Protection. If witnesses are questioned, they are questioned gently. That is especially true when the witnesses are NHS doctors, arguing that their patient should be allowed to die. Every barrister practising in this area knows better than attempting a robust cross-examination, which would be taken as a hint that the doctors are plotting murder, and as such, will inevitably infuriate the judge. The golden rule of arguing a pro-life case in that Court is to emphasise that the doctors, right or wrong, are no doubt acting in good faith, and have the patient’s best interests at heart.
However, Dr Pullicino was given a very different treatment at the hearing before Mr Justice Cohen on 30 December – machine-gunned with tough questions from two barristers and a judge, rarely given a split-second to answer:
Dr Pullicino, you gave your opinion in the basis of Pavel Stroilov’s instructions in this email, didn’t you? Did you have any other instructions? Did you make a note of what RS’s niece told you on the phone? Since you are holding yourself out as an independent expert, surely you should have made an attendance note? Did you know that this case was over? Did you know that the decision had been appealed, and the appeal dismissed? Where did you get that information from? Was RS’s niece the source of all the information you had about this case? What else did you have? This article titled “UK hospital removes food, water from unconscious Polish Catholic euthanasia victim on Christmas Eve”? Do you agree with that description? In what way is that an accurate description?
When asked about your sources of information, you said clearly “I joined a discussion” – who was it with? Was it with Pavel? Who else was there? Is Pavel a friend of yours? What is your link with Christian Legal Centre? Are you an ordained priest? Would that affect your objectivity?
You have not seen the clinical records, have you? You have not seen the results of MRI, EEG, or any other tests, have you? You have not discussed this patient with the clinicians, have you? Are you saying you had enough information to give an opinion? Are you seriously telling the Court that you have been able to diagnose a minimally conscious state on the basis of ten videos? Do you accept that Dr W has seen this patient many more times than you have?
As is usual in a particularly tough cross-examination, the questions were meant as rhetorical, and nobody was really interested in Dr Pullicino’s answers. His humble suggestion, that a neurologist should have a closer look at the case, was treated as if the family was claiming it to be the final product of a proper neurological assessment.
His evidence was severely criticised for not being a full expert report, which it never purported to be, and which he was denied an opportunity to prepare. In his judgment, Mr Justice Cohen attacked Dr Pullicino for failing to consider the medical records, the test results, or to discuss the case with the treating clinicians – in full knowledge, but without a mention of the fact, that he was never allowed to access any of those things!
While doing so, at the same hearing, Mr Justice Cohen also firmly refused to permit any further assessment by a neurologist appointed by the family. Conveniently, that part of his order was omitted from his published judgment.
To ‘rebut’ the evidence of Dr Pullicino, the Hospital and the Official Solicitor mobilised their own trusted set of experts, urgently instructed to examine RS in hospital on 29 December. Just after 5 days of starvation, dehydration, and being pumped with morphine and a strong sedative, midazolam. Predictably, the experts concluded that there had been no mistake in their previous assessment and prognosis three weeks before. The only neurologist among them did not attend the hearing to give evidence and defend those conclusions; so the Court had to rely on the opinion of two intensivists, on neurological issues outside their areas of expertise. However, the important thing was that neither of them was ordained, or was known to have exchanged emails with Christian Legal Centre, or in any other way compromised by association with Christianity; and therefore the Court had no reason to doubt their objectivity.
Nobody has answered the substantive, scientific points made by Dr Pullicino in his evidence: namely, that prognostication of outcome in anoxic encephalopathy is not an accurate science and is open to wide error. Dr Pullicino drew the Court’s attention to a study (Douglas Katz, Meg Polyak, Daniel Coughlan, Meliné Nichols, Alexis Roche, Natural history of recovery from brain injury after prolonged disorders of consciousness: outcome of patients admitted to inpatient rehabilitation with 1-4 year follow-up), which shows that outcome in both traumatic and non-traumatic cerebral injury is less pessimistic than has been previously held. In particular, nearly half of patients in non-traumatic coma who progress to minimally conscious state (MCS) within 8 weeks are able to be at home without a carer for 8 hours a day, by one year. His bottom line was simply that it was simply too early to write RS off. He needs further observation, tests, and treatments, which Dr Pullicino identified.
Given that even Dr Bell’s conclusion, accepted by the Court, was that there was no evidence of RS suffering from any pain and distress, what can be the conceivable reason for refusing to try those tests or treatments? Why cannot even a few days be given to let Dr Pullicino examine the patient, see the records, talk to the medical team, and be shown his errors if there are any? What is the justification for all this mad rush in a decision of such magnitude? The court has never given an answer to any of those questions.
Why is the family divided?
Having said all that, is it not the case that RS’s nearest family – his wife and children – agreed with the doctors that it was best to let him now die in peace? Was not it wise for the court to defer to their views? And does not this one thing outweigh all criticisms of the process that may be made?
This is a powerful argument, which often made all of us, and most of all RS’s mother, sisters and niece, pause and think whether it is right to keep fighting for his life. However:
Firstly, Mr Justice Cohen presents the views of Mrs RS in a much more categorical form than that in which she expressed them. The ‘Transparency Order’ prevents me from quoting any documents even after they were cited at what was supposed to be ‘a public hearing’. However, even Cohen J recorded in his judgement of 15 December: “She recalled him saying that every life is precious and you must hold onto life, and also that if anything happened to him, he would want all steps to be taken to save him but that if he was beyond saving he did not want to be kept alive.”. She told the Official Solicitor that she would be the last person to take her husband off life support if there was the slightest chance that he might recover. By that she meant, as summarised by Mr Justice Cohen, that “The bare minimum recovery that could justify keeping RS alive would be one where he could interact with her and the children even if just to squeeze their hands or move a finger to acknowledge their presence.”. After being told (falsely) that her husband had “no brain activity”, Mrs RS reluctantly agreed that it was pointless to keep his body functioning.
This view is much more finely balanced than what Mr Justice Cohen’s most recent judgment conveys. If Dr Pullicino, and the studies he cites, are right, RS has every chance of recovering to a much better level than Mrs RS said would justify saving his life. Even on the evidence of Dr Bell, he has a chance of coming close to that level. It is true that Mrs RS felt saving her husband’s life was pointless, but that was based on a premise that there was “no brain activity” and he could not survive without a ventilator. That has been shown to be mistaken, on any view. If the courts and the hospital were really keen to respect Mrs RS’s wishes – not simply fishing for selective quotations to justify condemning Mr RS to death – that would require a thorough, free and fair debate to test the rival medical opinions and prognoses; and that is being denied.
Secondly, and relatedly, we do not know what Mrs RS is being told about her husband’s condition, and we cannot be sure that we have an accurate picture of her freely expressed views. At an early stage, she told RS’s mother and sister that she disagreed with the hospital, but had been told (falsely) that she had no say in the matter. She does not speak English. Her views were conveyed by a friend of hers, often described as her “translator”, but who has never been sworn (as is the normal practice of normal courts) to translate accurately, rather than speak her own mind, as she sometimes appears to do. Her social media posts are full of fiercely pro-choice messages. What we know of Mrs RS’s views is what that lady told the Official Solicitor, and the Official Solicitor then conveyed to the Court and to the other parties. Mrs RS did give evidence, via that friend, at the trial on 9 December, but became so distressed that Mr Justice Cohen prohibited even the gentlest cross-examination on behalf of the other side of RS’s family.
Thirdly, nobody really knows the views of RS’s teenage children. It is just assumed, without any attempt at verification, that all of them agree with what their mother is believed to be saying. RS’s oldest son saved his father’s life by resuscitating him after the heart attack. Surely, he at least is entitled to have his own say in the matter.
A genuine disagreement between a man’s mother and his wife about whether he should live or die would have been a matter which is impossible for a mortal to judge. However in this case, we are dealing with a system which first has done everything possible to generate (if not to fake) such a disagreement within the family, and then gave every conceivable unfair advantage to the pro-death side of the argument.
Euthanasia by a back door
There is much to criticise or to praise about the modern British courts; but it is essential to appreciate that we are now talking about something entirely different. Life-and-death cases of this nature are not decided in the usual courts of law. The Court of Protection, and its alternative face – the Family Division of the High Court – is a very special kind of court. It sits in secret, protected from public scrutiny by a minefield of its elaborate ‘Transparency Orders’. It does not apply any kind of law. Its only law is that a person must live or die according to the judge’s subjective opinion of what is in that person’s best interests. It does not observe formalities. Due process is whatever a particular judge wants it to be in a particular case. It may bear a superficial resemblance of a court of law, in that there is a person styled a judge, sitting on a dais and making a decision, and persons styled barristers, addressing His Lordship from below; but that is about it. It is not formal, it is not public, it does not administer impartial justice like a court. It acts as swiftly and secretly as an order of assassins, to enforce the will of one man that another must die.
The truth about a small proportion of its decisions is now trickling out into the public domain, mainly due to various highly improbable accidents, such as the intervention of the Polish government in this case. It is legitimate for the public to make a polite enquiry as to what on earth is going on here.
It is simply a law of nature that you can never find fairness or justice in a secretive seat of arbitrary power. It is simply a fact that the Court of Protection is one such seat. When we read about places like Russia or Iran, the fact that someone was brought into a room, told this was a court of law, and heard a few incomprehensible things being said, does not reassure us that the rule of law has triumphed. It is different when we are told that there has been a court decision made in this country. As far as this particular court is concerned, it is about time we asked what exactly the difference is; and if there is not much difference, how did we get there.
All great utopian movements, from eugenics to socialism, follow a broadly similar pattern of evolution. They begin by openly arguing their case, seeking to rally the public opinion to their banners. Sometimes they just fail; sometimes, which is worse, they gain power to test their ideas in practice, and then fail disastrously. However, having passed through that epic age, they typically end up with the Eurocommunist idea of a patient ‘long march through the institutions’.
So it was with the movement which prefers to describe itself for propaganda purposes as ‘pro-choice’. At least in this country, they only made limited progress in legalising abortion, and hardly any to legalise euthanasia. They have, however, marched a long way through those sectors of the medical profession which specialises in ‘end of life care’; through the institutions which issue ethical guidance documents about it; and indeed through the corresponding sector of the legal profession – all the way up to the highest judicial seats.
Any kind of ‘mercy killing’ is prohibited by law. It remains a crime to take any positive action calculated to bring about a patient’s death. That law, however, is highly unpopular both among those who may be tempted to break it, and among those who are meant to enforce it. Little wonder that the boundaries of that law have been pushed further and further over the years. The patient, of course, has a right to refuse medical treatment. An extension of that is that Mr Justice Cohen can refuse medical treatment on behalf of the patient in a vegetative state. Or, by, extension, in a minimally conscious state. Or, by a further extension, someone who is recovering from a coma, but is predicted never to recover enough to satisfy the judge’s idea of a life worth living.
Another extension, of a different kind, is that refusing treatment may now include refusing food and water. So, if poisoning is banned by law, and the disabled patient can survive without medical treatment, the work of mercy can still be accomplished by making him die of thirst.
Without breaking the law, those ideologically sympathetic to the idea of mercy killing can still use those loopholes to achieve what they see as the most merciful thing which the law permits them to do for the patient. As RS’s treating consultant put it in court: “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.” This is easy enough to translate into plain English.
This is not even a question of infiltration by activists as such. By now it is rather a culture, a mindset, whereby sanctity of life is considered an outdated sentimental prejudice; and death, spiced with a good dose of morphine, preferable to a handicapped life as a burden to others. This is the new common sense of this generation of decision-makers, obvious to all except a few reactionary religious fanatics. One does not need to be a euthanasia activist in judicial clothing to make such decisions. It is enough to be a conformist.
