Withdrawal of CANH and best interests – CoP involvement not required where family and doctors agree

The High Court has granted a declaration that it was not mandatory to seek the court’s consent to the withdrawal of clinically assisted nutrition and…

The High Court’s decision in NHS Trust v (1) Y (by his Litigation Friend), the Official Solicitor [2017] EWHC 2866

Executive summary

The High Court has granted a declaration that it was not mandatory to seek the court’s consent to the withdrawal of clinically assisted nutrition and hydration (CANH) from a patient with a prolonged disorder of consciousness when the patient’s clinical team and family were agreed that it was not in his best interests to continue to receive that treatment.

In detail

We wrote previously about the case referred to as Re M in which the Court of Protection held that it was not necessary to refer the proposed withdrawal of CANH treatment where there was no dispute between the patient’s family and clinicians as to the patient’s best interests.

In this latest case, the High Court found that the medical evidence was clear with both the trust and family agreeing that the continued provision of CANH was contrary to the patient’s best interests. Significantly, in view of the involvement of the Official Solicitor (OS) as the patient Y’s Litigation Friend, the court concluded that an application to the Court of Protection would serve no useful purpose and was not required as the OS had not identified any arguable grounds that the trust’s decision was unlawful.

Implications and next steps

This decision was essentially about procedure and the circumstances in which court involvement is required for removal of CANH where there is medical and family agreement. In view of its potential significance for cases involving similar circumstances however, the High Court granted permission to the OS to appeal, certifying the case as suitable to go straight to the Supreme Court and to be dealt with quickly. Subject to the Supreme Court granting permission, it seems that we may soon have clear guidance as to the circumstances in which is it necessary to go to court for a declaration that CANH can be withdrawn where the clinicians and family are in agreement.

If the Supreme Court endorses the High Court’s stance this is likely to be welcomed by clinicians and families alike. Such a decision will also require the amendment of Court of Protection Practice Direction 9E, which sets out the cases which currently need to go before the court.

Further information

For any further information about Weightmans LLP, or to discuss any of the issues in this update, please contact either:

  • Morris Hill (Associate) on 0151 242 7990, or morris.hill@weightmans.com.
  • Richard Jolly (Partner) on 0151 242 7954 or richard.jolly@weightmans.com.

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