In the matter of AH [2021] EWCA Civ 1768

The Court of Appeal today overturned a decision which permitted a hospital to withdraw life sustaining treatment for AH, a 56 year old women who is said to be “the most complex Covid patient in the world”. The appeal was brought by AH’s children, A, M, S and K who were represented by Edward Devereux QC. The decision overturns the earlier decision of Mr Justice Hayden.

Edward Devereux QC commented that:

“It was an honour to have represented the children of AH, a wonderful lady, before the Court of Appeal and to have succeeded before that court. Cases involving the withdrawal of life sustaining treatment of a person can be some of the most challenging to come before the courts of England and Wales. The law in relation to them is easy to understand; the application of the law to the particular facts can be profoundly difficult.”

Facts

AH contracted Covid-19 in December 2020 and was admitted to Hospital in late December 2020. By January 2021 her condition deteriorated, and she developed severe complications which led to multi-organ failure. AH sustained extensive damage to her nerves, muscles and brain.

AH is currently cared for in a critical care unit of the Hospital. She is dependent on mechanical ventilation, continuous nursing care, nutrition and hydration delivered via a nasogastric tube. AH is able to feel and show some degree of emotion and communication but does not have capacity to make decisions about her future treatment.

After hearing evidence from members of AH’s family and a number of doctors and individuals who were involved in the care of AH, Mr Justice Hayden gave permission for the hospital to withdraw all life sustaining treatment for AH.

Following the decision of Mr Justice Hayden, AH’s children sought permission to appeal from the Court of Appeal.

Appeal

The appeal by AH’s children was based on five grounds of appeal:

(i) that Mr Justice Hayden had failed to give sufficient consideration to AH’s capacitious decision that she wished to receive ‘full escalation’ of treatment;

(ii) that Mr Justice Hayden had 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;

(iii) that Mr Justice Hayden had failed to consider adequately AH’s past and present wishes and feelings;

(iv) that Mr Justice Hayden had failed properly to balance the interference with AH’s human rights under the European Convention on Human Rights; and

(v) that Mr Justice Hayden used a visit to AH in hospital as an evidence gathering exercise to establish what AH’s views were which likely influenced his overall conclusions.

In relation to point (v) the Court of Appeal gave further consideration as to what guidance should be given in relation to visits to patients by Judges in cases involving applications for the withdrawal of life sustaining treatment.

The Court of Appeal said that in advance of any final hearing the following matters should be determined: (i) whether the Judge will visit any patient; (ii) the purpose of any visit; (iii) when the visit is to take place and the structure of the visit (in other words, how the visit is to be managed; what is to happen during it; and whether it is to be recorded and/or a note taken); and (iv) 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).

Click here for the full judgment.