This is a guest post from Katie Gollop QC. Katie is a barrister at Serjeants’ Inn Chambers specialising in healthcare related law. She’s also a Deputy High Court Judge allocated to the Family Division and Court of Protection.

Katie first wrote about Pippa’s case here. This post concerns Pippa’s mother’s appeal. The judgment in the appeal can be found here : Parfitt v Guy’s and St Thomas’ Children’s NHS Foundation Trust & Anor [2021] EWCA Civ 362. 

Mrs Parfitt’s appeal against the decision that it is not in her daughter, Pippa’s, best interests to be given further mechanical ventilation failed in the Court of Appeal.

She appealed on 4 grounds:

1. The judge was wrong when he found that even though she does not experience pain and has no awareness, more medical treatment would physically harm Pippa;
2. The judge was wrong when he found that, because of her lack of awareness and young age, Pippa would get no non-medical benefit from having her life prolonged and going home to be cared for surrounded by her family;
3. The judge did not give enough weight to her views in circumstances where they were supported by experts and treatment did not cause Pippa pain;
4. The judge was wrong when he found that it was not in Pippa’s best interests for her to have a trial of portable ventilation at home. He was wrong because he didn’t take into account an expert report filed four days after the hearing finished, and without the court’s permission And also wrong when he rejected a different expert’s evidence.

Let’s look at 2, 3 and 4 first and then come back to i, which is the heart of the case.

On 2, the appeal court said that Mrs Parfitt had got the wrong end of the stick. The judge had found that Pippa might get a non-medical benefit from being cared for at home with her family, but he also found that those benefits were outweighed by other factors. He was entitled to come to that decision.

On 3, again the appeal court disagreed with Mrs Parfitt’s analysis of the judge’s reasoning. It said that he had set out her views, had taken them into consideration when analysing the options for Pippa, and that the weight he had given to them “was carefully calibrated and justified on the evidence.”

On 4, the appeal court said that the judge had taken into account all of the expert evidence he was required to take into account.

Ground 1 – Physical Harm Without Pain Is Physically Impossible

The life of Pippa’s mind ended many months ago. She is in a persistent vegetative state, experiences neither pleasure nor pain, has been on intensive care for over two years, and there is no prospect of any improvement or recovery.

Perhaps it is unsurprising that the appeal failed. At the same time, it is not entirely easy to understand whether it had to fail.

The judge decided that the concept of dignity was problematic, subjective, and did not assist him in identifying Pippa’s best interests. He listened to the views of all those concerned with Pippa but did not presume to adopt “some supposedly objective concept of dignity to determine her best interests”. Neither Mrs Parfitt nor the Trust said that he had to deal with dignity. And the Court of Appeal made no criticism at all of the judge’s approach.

So a first learning point for lawyers (and, perhaps NHS Trusts and healthcare practitioners) is that deciding best interests in a medical treatment case whilst attaching no weight to the concept of dignity, is not an error of law.

A second learning point is about the concept of physical harm done to a person with no awareness. This decision teaches us that the concept of doing physical harm to a person who cannot feel and has no consciousness is not self-contradictory. But that teaching comes without any consideration of the concept of dignity. If the reasoning feels incomplete, that maybe because it feels selective to leave dignity out of account altogether.

That said, the Court of Appeal’s big tick next to Poole J’s determination that “the absence of pain is not the same as the absence of harm” provides significant clarity. And his identification of what the harm is (see below), may assist nurses and doctors who are struggling with issues of conscience.

The Court of Appeal was invited to consider dignity by Pippa’s Guardian. The Guardian’s submissions, which the Court of Appeal said were prepared with “thought and care”, are set out at length in paragraph 98. The Guardian submitted that “in addition to the principle of the sanctity of life and principle of self-determination, the court in these circumstances should take into account the principle of the respect for the dignity of the individual.”

But Mrs Parfitt’s lawyers argued that dignity was not “the touchstone”, and dignity formed no part of her appeal.

Instead, her central argument was a simple and a very narrow one. She argued that when the judge found that more medical treatment would cause Pippa physical harm, he had to have been wrong. That was because it is simply impossible to harm Pippa physically by giving her medical treatment. She can’t feel pain, she has no conscious awareness of herself, anything or anyone and so, by definition, the interventions she needs to keep her alive cannot physically damage her.

The appeal court said that this reasoning was “plainly wrong”.

It pointed out that “the law clearly recognises that physical harm can be caused to an unconscious person.” First, criminal law tells us that: “an unconscious person can suffer actual or grievous bodily harm and it would be no defence to a charge under the Offences against the Person Act 1861 that the victim was unconscious.” Second, tort law (in other words negligence) tells us that “physical harm can be caused to an insensate person”.

Pausing there, are these other areas of law relevant in this context? There is an application before the court to determine her best interests. If the court decides more treatment – plus or minus invasive surgery – is in Pippa’s best interests, then a doctor providing the court sanctioned treatment is highly unlikely to be committing a criminal offence. As to personal injury law, the purpose of awarding a sum of money to a person who has been made insensate as a result of another person’s negligence is to compensate the victim. The idea is to put the negligently injured person back into the position they would have been in if the negligence hadn’t happened. Money can’t make up for negligently being made insensate, but it is part of the remedy for the wrong that our system provides. Pippa is not the victim of negligence – the illness that has caused her losses and injuries arose naturally.

One could argue that it is not appropriate to read across criminal and tort law to decisions about medical treatment and best interests. But the narrow and specific way Mrs Parfitt framed Ground 1 of her appeal meant that the appeal court’s task was to do no more nor less than illustrate how it is possible for physical harm to be caused to a person who has no awareness and cannot sense pain.

The harms to Pippa from more treatment that the judge identified were: “the losses of freedom, function, and ability to enjoy childhood, that severe disability, including severe brain damage, cause someone… whether or not they can feel pain and whether or not they have any conscious awareness.”

Mrs Parfitt could have argued (but didn’t) that –

• I accept the treatment needed to keep Pippa alive causes her body physical harm;
• I accept the treatment also causes her the losses the judge identified, even though she is unaware of what she has lost;
• And yet I still say that it is in her best interests to bear those harms and losses because they are a price worth paying. Life, and family life, benefit Pippa and more care gives her options. Her life is a life of value, despite her disabilities, loss of function, condition and treatment all of which she cannot feel and knows nothing about. However you look at it, death is a greater harm than a life where she is loved and cherished.

The Court of Appeal dismissed Mrs Parfitt’s argument that the judge should not have relied on a case called Re A (A Child) [2016] EWCA Civ 759. In that case, the appellate court had endorsed a different judge’s finding that,

“even if his life were pain-free, I would come to the conclusion that there is no measurable benefit to him to continue in his present condition and it is simply inhumane to permit it to continue”.

And with the word “inhumane” we are back to dignity.

What do these concepts mean, in the context of the life-sustaining treatment of a much loved child whose parent sees only dignity and humanity in her continued existence? Everybody has their own idea but nobody actually knows.

For as long as the courts do not provide guidance on when and what treatment is inhumane, when there is and is not “dignity” in treatment, life and death, and whether, and if so how, the subjective concept of dignity/humanity should be factored into the objective best interests test, there will be something lacking and un-transparent about the law in this area.

Mrs Parfitt’s appeal was reportedly financed by the Society for the Protection of the Unborn Child. SPUC, and other organisations with a strong religious imperative, will continue to get involved with parents in Mrs Parfitt’s position. Pending any successful appeal to the Supreme Court, the – no pain = no harm = parental wishes must prevail – argument is much more difficult. A resort to dignity seems likely in the next case and the Court of Appeal acknowledged that it may have to address arguments about the role it plays in decisions of this sort in future. Pippa’s case creates the real possibility that if and when an authoritative answer comes, it could be that unlike Articles 2, 3 and 8 ECHR, dignity need not be weighed in the balance.