Court permission no longer required to withdraw life-sustaining treatment

M (by her litigation friend, Mrs B) v a Hospital [2017] EWCOP 19

Executive summary

A landmark High Court decision has ruled that court permission is no longer required to withdraw life-sustaining treatment for patients in a permanent vegetative state when doctors and relatives are in agreement.

Background

The case centred on an application to the Court of Protection to withdraw clinically assisted nutrition and hydration (CANH) in the case of ‘M’, a woman who had suffered from the incurable and degenerative Huntington’s disease for more than 25 years. M had shown no awareness for around 18 months before the application was heard and was believed to be in a minimally conscious state. Doctors and family members both agreed that the withdrawal of food and hydration was in M’s best interests on 21 July 2016. The request for life-sustaining treatment was heard in April 2017, CANH was withdrawn on 24 July and M died on 4 August, aged 50.

The parties requested clarification of whether legal proceedings were necessary to withdraw CANH where M’s family and clinicians had agreed that it was in her best interests.

Decision

M’s mother and litigation friend, Mrs B, and the Official Solicitor both made written submissions on the issue. Mrs B argued that there was no obligation in law or good practice for a decision from the Court of Protection to be obtained prior to the withdrawal of CANH. There was nothing in the Mental Capacity Act which required judicial authorisation to withdraw treatment. She also argued that medical professionals take life or death decisions every day and do not require court permission before providing serious medical treatment or withdrawing other life-sustaining treatments such as dialysis.

The Official Solicitor contended that the requirement for court permission was an “essential safeguard for persons who are extremely vulnerable” and that every case should continue to come before the courts. He further submitted that the position should remain unchanged until it is brought before Parliament or the Supreme Court.

Mr Justice Jackson ruled that a decision to withdraw CANH may be taken without the permission of the court where there is agreement between relatives and medical professionals that it is in the patient’s best interests and the decision is taken in accordance with the prevailing professional guidance. The judge agreed with Mrs B’s argument that clinicians make serious treatment decisions every day and that it was not necessary or proportionate for legal proceedings to be required to deal with a limited selection of these decisions. He also highlighted that the requirement to apply to the court to withdraw CANH could hinder best-interest decisions and deter hospitals from making time-consuming and costly applications. This argument was evidenced by the fact that M had continued to receive CANH for a year after her family and doctors had agreed that it was not in her best interests and that the case had incurred close to £30,000 in legal costs. Instead, the court would be available for cases where there is disagreement between the parties or some other factor which required a court hearing.

Conclusions and implications

Sarah Wootton, chief executive of the campaign group ‘Compassion in Dying’ welcomed the ruling and described it as “a helpful step towards a clearer, more person-centred view of end-of-life care”. The Official Solicitor, however, is likely to appeal the ruling as he made clear in his written submissions that all cases should continue to come before the court until a decision is taken by Parliament or the Supreme Court.

It is also interesting to note that the Court of Protection Rules Committee has published notes this summer with a view to introducing changes at the end of the year. The committee has already recommended introducing a disciplinary working group which would be able to give guidance on which cases should or should not be taken to court.

Research carried out by the BBC and published in December 2016 established that there were just over100 patients in England and Wales in permanent vegetative or minimally conscious states, so the number of potential patients for which this ruling would have any significance is, in overall terms, very small. Nevertheless, as a result of the decision some trusts may now – in the limited circumstances laid down in the judgment - find themselves in a position where there is pressure from a family to allow a patient in such a condition to die.

Currently, and in view of the potential significance of the decision, it is anticipated that the Official Solicitor will appeal against the court’s finding. Until the outcome of such an appeal is known, trusts should continue to seek legal advice before withdrawing treatment even if there is agreement amongst the family and treating clinicians.

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