New interim guidance on decisions to withdraw CANH

The BMA, Royal College of Physicians (RCP) and the General Medical Council (GMC) have issued interim guidance on making decisions in relation to CANH…

Decisions to withdraw clinically-assisted nutrition and hydration (CANH)

New interim guidance for health professionals in England and Wales Executive Summary

In response to recent legal developments in England and Wales, the BMA, Royal College of Physicians (RCP) and the General Medical Council (GMC) have issued interim guidance on making decisions in relation to life-prolonging treatment, specifically withdrawing clinically-assisted nutrition and hydration (CANH) from patients in a permanent vegetative state (PVS) or minimally conscious state (MCS) following sudden-onset profound brain injury.

This guidance is intended to supplement previous guidance issued by these bodies which will continue to apply. New guidance is expected to be published in May 2018.

In detail

Recent legal judgments (the cases referred to as Re M and NHS Trust v Y) have held that there is no requirement on treating clinicians to seek the court’s prior approval to withdrawing CANH for a patient in PVS or MCS where existing professional clinical guidance has been followed and where the treating team and those close to the patient are all in agreement that it is not in the patient’s best interests to continue such treatment.

The interim guidance reflects these developments, stating that “good clinical practice does not require that court approval is sought before CANH can be lawfully withdrawn from patients in PVS and MCS”. However, there may be situations where an application to court is still appropriate, for example where there is disagreement about the patient’s best interests or a decision is finely balanced.

The guidance does not apply to situations where a “best interests” decision is not required; for example where the patient has made a valid and applicable Advance Decision to Refuse Treatment covering CANH; or where the patient has appointed a health and welfare attorney under a Lasting Power of Attorney, who has specific power to consent to or refuse life-saving treatment.

The interim guidance also highlights a change of emphasis in recent case law centered on the importance of decision making which gives effect to the patient’s wishes and feelings, beliefs and values. This can involve seeking to understand what decision the patient would have made for themselves if the patient had retained capacity. The guidance stresses that it is still necessary to conduct a detailed assessment in accordance with RCP guidelines in order to establish the patient’s level of awareness and any trajectory towards improvement (as prognosis is essential to establish whether the patient is likely to recover to a quality of life that he or she would consider worthwhile).

The guidance sets out a number of steps to help clinicians ensure that proper consultation takes place with family members and those who care for the patient to establish his or her “best interests”.

Implications and next steps

The interim guidance stresses that, alongside the new guidelines, clinicians should continue to consult and follow existing guidance from the RMC, RCP and GMC about how “best interests” should be assessed. RCP guidance should continue to be followed regarding assessment to establish the patient’s level of responsiveness and awareness and any trajectory of change or prognosis.

This document provides some reassurance that an application to court is not routinely required prior to the withdrawal of CNAH. However it makes clear that the new guidance may need to be revised if the Supreme Court considers a case on this issue. We will update you on any such developments.

The interim guidance states that until and unless the matter is definitively settled by the Supreme Court, NHS Trusts, CCGs and Health Boards may well wish to seek legal advice as to whether an application to court is required in any particular case. Some clinicians may also wish to seek advice from their professional organisation or defence body.

We understand that the Official Solicitor in NHS Trust v Y has sought permission from the Supreme Court to bring a leapfrog appeal and a decision is awaited.

New guidance due to be published in May 2018 will recommend safeguards to ensure that a robust and thorough assessment process continues to be followed prior to the withdrawal of CANH.

Further information

To discuss any of the issues raised in this update, please contact either:

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