Court not needed for withdrawal of CANH where doctors and family agree not in patient’s best interests

A court order does not have to be obtained before CANH can be withdrawn.

An NHS Trust & Ors.v Y (by his litigation friend the Official Solicitor) [2018] UKSC 46

Executive summary

In a ruling likely to be welcomed by both patient groups and care providers, the Supreme Court has confirmed that where the clinical team and the family are agreed that it is not in the patient's best interests, a court order does not have to be obtained before clinically assisted nutrition and hydration (CANH) which is keeping a patient with a prolonged disorder of consciousness (PDOC) alive can be withdrawn.

Background

We wrote about this case when considered by the High Court in November 2017. The key issue for the court then, as for the Supreme Court now, was whether a court order must always be obtained before CANH, which is keeping a person with a PDOC, can be withdrawn, or whether, in certain circumstances, this can happen without the court’s involvement.

The appellant, Mr. Y, suffered a severe hypoxic brain injury in June 2017 after a cardiac arrest, following which he fell into a PDOC, with no capacity to make decisions about his future care. Two medical experts agreed that he was in a very low level of responsiveness with no awareness of self or his environment, and that it was highly improbable that he would re-emerge into consciousness. Both the clinical team and the family agreed that it would be in his best interests for CANH to be withdrawn, meaning that he would die within 2 to 3 weeks. In November 2017, the trust treating Mr. Y issued proceedings seeking a declaration that it was not mandatory to involve the court in such circumstances, which was opposed by the Official Solicitor, acting as Mr. Y’s litigation friend. The High Court granted a declaration albeit in more narrow terms than those sought by the trust. The Supreme Court granted the Official Solicitor permission to appeal and even though Mr. Y had died in the intervening period, in view of the importance of the specific point, the appeal went ahead.

The Supreme Court’s decision

The court unanimously dismissed the Official Solicitor’s appeal and considered the issues under a number of headings:

  1. Basic position with regard to medical treatment - the fundamental question facing a doctor, or a court, considering treatment of a patient lacking capacity was not whether it was lawful to withdraw or withhold treatment, but whether it was lawful to give it and it was only lawful to do so if it were in the patient's best interests. On this basis, if the treatment would not be in the patient's best interests, it would be unlawful to give it, and therefore lawful and not a breach of any duty to the patient to withhold or withdraw it.
  2. Domestic law – the case of Airedale NHS Trust v Bland [1993] A.C. 789 had not imposed a legal requirement that in all cases involving a patient in a persistent vegetative state, or any other form of PDOC, an application had to be made to the court before CANH could be withdrawn. It had been made quite clear that it was "as a matter of practice" that guidance should be sought from the court by way of a declaration, which was "desirable". This was confirmed in R. (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003 which meant that when the Mental Capacity Act 2005 came into force, there was no universal requirement at common law to apply for a declaration before withdrawing CANH. In fact, the Act was silent on this subject and whilst the Act’s Code of Practice did deal with applications to court in such circumstances, it contradicted itself as to whether they were mandatory and there had been no requirement to apply to court in the post-Act case law.
  3. The European Convention on Human Rights (ECHR). The ECHR does not generate a need for an equivalent provision, as the relevant European Court of Human Rights (EctHR) case law has both set out factors relevant to the administering or withdrawing of medical treatment and indicated that the EctHR does not in principle see it as problematic that a decision to remove CANH from a patient with PDOC should be made by a doctor without mandatory court involvement

Conclusions and implications

The Supreme Court’s conclusion that neither the common law nor the ECHR gives rise to a mandatory requirement to involve the court to decide upon the best interests of every patient with a PDOC before CANH can be withdrawn is both useful and welcome, meaning, as it will, that where the medical team and the family are in agreement that continued treatment is not in the patient’s best interests, the family will not have to await adjudication by the Court of Protection before treatment can be withdrawn.

It is crucial to note the limited circumstances to which this case will apply of course, with Lady Black noting at the conclusion of the court’s judgment that if, at the end of the medical process, it is apparent that the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare, a court application can and should be made. If there is any doubt whatsoever, those treating patients in such a condition need to err on the side of caution for the sake of all involved and seek legal advice.

If you have any questions or would like to know more about our update, please get in touch with your usual contact in the Weightmans healthcare team or, Richard Jolly (Partner), Morris Hill (Associate), or Ken Slade (Associate).

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