Commissioner for Human Rights

The Commissioner for Human Rights addressed the Chairwoman of the Board of Commissioners Equality and Human Rights Commission regarding withdrawal of nutrition and hydration from Polish citizen (referred to as RS) who is currently hospitalised in the University Hospital Plymouth NHS Trust in Great Britain. According to media coverage, RS was admitted to the hospital following a heart attack. His condition deteriorated and patient fell into a coma after suffering brain damage. The doctors at the University Hospital Plymouth NHS Trust concluded that it was in his best interests to withdraw all life-sustaining treatment. Doctors’ decision was accepted by patient’s wife and children, but the man’s mother, sisters and niece disagreed with the decision and claimed that being a Catholic, RS would not have wanted his life to be terminated if it could be preserved. The dispute was submitted to the Court of Protection. The Hospital applied for a declaration that “RS (...) lacks capacity to consent or refuse medical treatment, including ventilation and CANH (that is, feeding and hydration) and for an order that it is lawful and in his best interests for ventilation and for food and hydration to be withdrawn and for such palliative care as is appropriate to be provided in order to maximise his dignity and ensure he does not suffer unnecessarily”. Justice Cohen, after hearing RS’s family members, granted the declaration and stated that “it is for the Trust and RS’s wife to decide between themselves whether hydration is to be withdrawn”. RS’s niece sought permission to appeal, but her application was refused by the Court of Appeal. Members of RS’s family unsuccessfully tried to challenge the decision of the Court of Appeal before the European Court of Human Rights (ECHR). RS’ mother, sisters and niece submitted another application for permission to appeal from the decision of the Court of Protection, but the application was dismissed. Then, members of RS’s family submitted another application to the ECHR, but the application was refused. Currently, members of RS’s family are undertaking actions aiming at obtaining a permit to transport RS to Poland. It should be underlined that one of the Polish hospitals expressed its readiness to admit the Polish citizen. Actions have been undertaken also by Polish authorities. A special group petition aiming at protection of RS interests has been already signed by over 15 thousands citizens.

The Commissioner for Human Rights emphasised that there can be observed significant differences in regulations concerning the possibility of withdrawing treatment or discontinuing hydration and nutrition in different European countries. The lack of European consensus among States in favour of permitting the withdrawal of life-sustaining treatment was pointed out by the European Court of Human Rights in the case Lambert and others v. France(application no. 46043/14). The Court stated that in the sphere, which concerns one of the fundamental rights, namely the right to life, States must be afforded a margin of appreciation. In particular, the issue of withdrawal of hydration and nutrition raises substantial controversy among lawyers, doctors and ethicists. Some specialists, while allowing the withdrawal of futile therapy, exclude the possibility of stopping hydration and nutrition. They perceive these interventions as a part of primary care rather than as a treatment that can be discontinued. For example the Polish Working Group on End-of-Life Ethics, which proposed the definition of “persistent therapy”, indicated that this definition cannot be extended to primary care treatments, such as pain relief or feeding and hydration, as long as they serve the well-being of the patient. There is no dispute that the decision regarding the possibility of stopping hydration and nutrition as well as the decision regarding the possibility of transporting RS to Poland should primarily serve patient’s best interest. However, understanding of the concept of “patient’s best interest” is culturally, ideologically and religiously conditioned. Therefore, according to the Commissioner for Human Rights, those differences that can be observed in legal regulations and social attitudes towards the approach to the end of life treatment in Poland and United Kingdom should be considered in the case of RS. Taking into account broader cultural context would help to correctly establish presumed patient’s will. Additionally it would make the decision more socially acceptable.