CANH discontinuance without a hearing and best interests

The Court of Protection has declared that it was in the best interests of a patient in a PVS for CANH to be discontinued. The decision confirms that…

The Court of Protection’s decision in NHS Windsor & Maidenhead Clinical Commissioning Group v SP [2018] EWCOP 11

Overview

The Court of Protection has declared that it was in the best interests of a patient in a persistent vegetative state (‘PVS’) for clinically assisted nutrition and hydration (‘CANH’) to be discontinued. The decision confirms that where the court had all the essential information and the patient's family and medical practitioners were unanimous in agreeing that such a course of action was in the patient's best interests, the court could determine the case justly without a hearing. We have written previously on this topic – read our earlier updates on NHS Trust v Y (which is being appealed to the Supreme Court) and on Re M.

In detail

The CCG applied for a personal welfare order in respect of the respondent patient. The order sought was for a declaration and order that it was not in the patient's best interests for CANH to be continued. The patient suffered a cardiac arrest in October 2014, aged 50 from which she had never regained consciousness, with a diagnosis that she was in a PVS. Her family’s view was that it was in her best interests for CANH to be withdrawn and several medical assessments had reached the same conclusion, finding that she had displayed no evidence of conscious awareness and that no further improvement would occur. The court was asked to determine the application without a hearing but with the provision of a public judgment.

The court's decision

1. Dealing with the matter without a hearing

There was no rule of principle or binding authority for the proposition that there was a legal obligation that all cases concerning the withdrawal of CANH from a person who lacked capacity had to be sanctioned by the court. However, the Mental Capacity Act Code of Practice para.6.18 and para.8.18 provided that some treatment decisions were so serious that the court had to make them, including the proposed withdrawal of artificial nutrition and hydration. The CCG had therefore taken the precaution of applying to the court, but asked the court to deal with the application without a hearing under the Court of Protection Rules 2017 r.3.6(4). The court was satisfied that it could so determine. In an application made by agreement, there were always more investigations that could be made, but in this case the court had all the essential information and further inquiries would not change anything, serving only to add delay to the taking of a decision that had been agreed was in the patient's best interests for some time.

2. Best interests and withdrawal of life-sustaining treatment

The fundamental starting point was a strong presumption that it was in a person's best interests to stay alive but the right to life was not absolute and the withdrawal of CANH might be lawful where it was not in a patient's best interests to continue such treatment. The purpose of the best interests test was to consider matters from the patient's point of view. Where a patient was suffering from an incurable disability, the question was whether she would regard her future life as worthwhile. The court therefore had to consider the patient's values and beliefs and any views which she expressed when she had capacity which shed light on the likely choice she would make, had she been able to do so.

The medical evidence was clear that the patient was in a PVS, with no prospect of improving and her symptoms were consistent with her having no awareness of her surroundings whilst the medical benefits of CANH were limited to simply keeping her body alive rather than helping her to regain consciousness or resume any part of the life she previously led. Palliative care would reduce to a minimum any experience that she might have of discomfort or pain as a result of withdrawal of CANH. The patient had said to her son, whilst watching a programme about a person in a PVS, that she would rather die than stay in a bed for years in such condition and her family and friends were unanimously of the view that, having regard to her personality before the cardiac arrest, she would not want to live as she now was and that it was in her best interests for CANH to be withdrawn and palliative care implemented. She would want to be satisfied that her minor children were properly provided for and her family believed that she would approve of what had been done. The court concluded that the patient would want her family to be able to move on and live their lives to the fullest. It was in her best interests for CANH to be discontinued and replaced with palliative care.

Conclusions and implications

The decision will be welcomed by medical providers dealing with patients in a PVS and where all parties are agreed that withdrawal of CANH is in that patient’s best interests. Although such situations are likely to be relatively rare, being able to deal with the matter without the requirement of a court hearing will mean that delays to what will, inevitably, be a very traumatic experience for all concerned can be minimised.

The CCG’s caution in seeking the declaration is entirely understandable but, pending the appeal to the Supreme Court in NHS Trust v Y mentioned above, our view remains that there is no need to seek the declaration from the court in these circumstances, as the court confirmed here.

If this raises any questions please speak to your usual contact in the Weightmans or contact Morris Hill, Associate, (morris.hill@weightmans.com), Richard Jolly, Partner, (richard.jolly@weightmans.com) or Ken Slade, Associate, (ken.slade@weightmans.com).

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