Covert evidence in the Court of Protection

The Honourable Mr Justice Cohen gave judgment on a challenging Court of Protection case on 31 December concerning the withdrawal of treatment of a patient known as “Z”. He had tragically suffered a cardiac arrest which led to severe and irretrievable brain damage.

Before Christmas the treating NHS Trust had successfully applied to court for a declaration that it was lawful to withdraw life sustaining treatment and commence palliative care. The hospital was supported by Z’s wife but opposed by his birth family, with whom he did not seem to have a close relationship but who held strong religious views, which upheld the sanctity of life at all cost. The birth family appealed initially to the Court of Appeal and then the European Court of Human Rights to overturn the decision. In support of this, they obtained evidence from an independent neurologist who produced a report which seemed to rely on covert video footage obtained by the family in the hospital.

The judge was clearly very unimpressed with the manner of obtaining the report (“I deplore the underhand way in which this evidence was obtained”), its contents and the oral evidence of the expert. The court criticised almost every aspect of the neurologist’s opinion and dismissed the suggestion that he would spontaneously recover or that it was appropriate to repatriate him back to Poland: “I am left in no doubt that there has been no improvement…and no basis at all to change my decision that it is not in his best interests for life sustaining treatment to be given”.  As the family’s appeal to the ECtHR had not been fully dealt with the judge suspended the order authorising the withdrawal of treatment for a week, but the prospects of success for the family look remote.

Comment

The case illustrates the challenges both doctors and judges face with covert evidence and the remarkable speed and agility with which the court and hospital responded to the rapidly changing situation – the whole case, involving multiple hearings, was over in two weeks, which of course spanned the Christmas period and took place in the context of the pandemic.