Care home briefing 181 – The withdrawal of clinically assisted nutrition and hydration – Is court approval required?

The Supreme Court has recently given an important judgment[1] in which it has made clear that it is not a legal obligation for healthcare professionals to seek the approval of the Court before withdrawing clinically assisted nutrition and hydration (CANH) in a person with a prolonged disorder of consciousness (such as persistent vegetative state (PVS) or minimally conscious state) even though the consequence of withdrawal will result in the death of the patient.

Facts of the case

The case concerned Mr Y, an active man in his fifties, who had suffered a cardiac arrest that had led to extensive brain damage. He had never regained consciousness following the cardiac arrest and required CANH to keep him alive. His treating physician concluded that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remaining life. A second opinion from a consultant and professor in neurological rehabilitation considered Mr Y to be in a vegetative state without prospect of improvement. Mr Y’s family considered that he would not wish to be kept alive given his prognosis as assessed by the clinicians.  The clinical team and the family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn. This would result in his death within 2 to 3 weeks.

The treating NHS Trust sought a declaration from the Court that it was not mandatory to seek the Court’s approval for the withdrawal of CANH from a patient with a prolonged disorder of consciousness when the clinical team and the patient’s family agreed that it was not in the patient’s best interests to continue treatment and that no civil or criminal liability would result if CANH were withdrawn.

The High Court granted that declaration and gave permission to appeal directly to the Supreme Court. Prior to the appeal proceeding to the Supreme Court, Mr Y died but the appeal went ahead given the issues of public importance that it raised.

Court involvement in withdrawal decisions

The first major case to come before the Courts regarding withdrawal of CANH from a patient in persistent vegetative state concerned Anthony Bland, a young man involved in the Hillsborough football disaster who had suffered brain damage as a result of that disaster.

CANH (acknowledged to amount to ‘treatment’ by the Court) had been administered to him. The House of Lords, hearing the case in 1993, declared that it was lawful to withdraw that treatment having regard to the clinical evidence that it was of no therapeutic benefit to him and therefore it was not in his best interests for that treatment to continue.

The House of Lords had recommended that ‘as a matter of good practice’ an application to the Court should be made before withdrawing CANH from a patient in PVS. The involvement of the Court was seen by many as a recognition of the importance society attaches to the sanctity of life and the legal and ethical challenges raised by removing treatment with the inevitable consequence of the patient’s death.

Following on from the House of Lords judgment it has been the practice of those providing CANH to patients in PVS to seek a ‘declaration of lawfulness’ from the Courts before seeking to withdraw CANH.

The Supreme Court in considering the case of Mr Y addressed whether this practice amounted to a legal obligation.

Supreme Court judgment

The Supreme Court determined that the Bland case did not impose a legal requirement that in all cases of patients in PVS an application must be made to the Court before CANH can be withdrawn.

The Court referred to the principles of the Mental Capacity Act 2005 (MCA) that provides for decisions to be taken on behalf of those who lack capacity based on their best interests. There is no provision in the MCA requiring any best interests decision to come before the Court. However, the Court noted that the MCA Code of Practice suggested that applications such as that concerning Mr Y should come before the Court, although regarded the approach of the Code in this context as being rather ‘contradictory’.

Where the Code indicated that the Court ‘must be asked to make’ the decision about withholding or withdrawing CANH from a patient with a prolonged disorder of consciousness, the Supreme Court judges took the view that this statement seemed to be an interpretation of the previous case law. They considered the case law had in fact only gone so far as to state that Court approval was a matter of ‘good practice’ not legal obligation.

The Supreme Court in its judgment placed emphasis on the importance of referring to relevant professional guidance when making decisions regarding life sustaining treatment, singling out the guidance provided by the GMC. The Court expressly referred to the guidance that a second opinion be obtained from an independent clinician who should reach his/her own conclusion on whether CANH should be withheld.

This judgment is likely to trigger further debate with concerns already having been expressed about the need for legal protection in connection with life and death decisions for the most vulnerable in society. Nevertheless there will be many who welcome the judgment, given that Court applications will have sometimes been perceived as an onerous imposition on families who are having to deal with a major decision in the most emotionally distressing of circumstances.

Circumstances when applications to the Court will be made

As discussed above, the clinical team treating Mr Y together with his family considered it was in Mr Y’s best interests for CANH to be withdrawn. The patient’s family will not always be in agreement with the decision of the clinical team and there will be some situations where the clinical picture may not be clear-cut; such cases are still likely to need to come before the Court.

The Supreme Court emphasised that although an application to the Court was not necessary in every case, there would undoubtedly be cases in which an application would be required (or be desirable) because of the particular circumstances, whether or not a dispute is apparent, and that there should be no reticence about involving the Court in such cases.

For more information or guidance, please contact:

Alexandra Johnstone
Partner
T. 020 7227 6704
E. alexandra.johnstone@rlb-law.com

Footnote
[1] An NHS Trust and others v Y(by his litigation friend the Official Solicitor) and another [2018]


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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