Issue before the court

The question before the court in this appeal was whether a court order must always be obtained before clinically assisted nutrition and hydration (often referred to as “CANH”), which is keeping a person with a prolonged disorder of consciousness alive, can be withdrawn or whether, in some circumstances, CANH can be withdrawn without the court’s involvement.

     

Terminology

The judgment handed down today defines “prolonged disorder of consciousness’” (often shortened to “PDOC”) as encompassing “both a permanent vegetative state (sometimes referred to as persistent vegetative state, and often shortened to “PVS”) and a minimally conscious state (or “MCS”).”

    

Background

In 2017, Mr Y, an active man in his fifties, suffered a cardiac arrest which resulted in severe cerebral hypoxia (reduced supply of oxygen to the brain) and extensive brain damage.

Following the cardiac arrest, Mr Y never regained consciousness and required CANH through a percutaneous endoscopic gastrostomy (a tube passing into a person’s stomach through the abdominal wall, often referred to as “PEG”) to keep him alive.

In late September 2017, Mr Y’s treating physician concluded that Mr Y was suffering from PDOC and that, even if he were to regain consciousness, he would have severe physical and cognitive disabilities and, consequently, would rely on others to care for him for the rest of his life.

In October 2017, a second opinion was obtained and concluded that Mr Y was in a vegetative state with no prospect of improvement.

Given the doctors’ views as to Mr Y’s prognosis, Mr Y’s wife, Mrs Y, and their children were of the view that Mr Y would not want to be kept alive. Mr Y’s family and the clinical team who were treating Mr Y agreed that it would be in Mr Y’s best interests for CANH to be withdrawn which would result in his death within two to three weeks.

     

Original application

On 1 November 2017, the NHS Trust made an application to the Queen’s Bench Division of the High Court for declarations that:

  • (1) It was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with PDOC when the patient’s family and clinical team agreed that it was not in the patient’s best interests to continue to receive CANH; and
  • (2) No civil or criminal liability would result if CANH were to be withdrawn.

O’Farrell J heard the matter on 10 November 2017. The Official Solicitor acted as Mr Y’s litigation friend.

O’Farrell J concluded that it was not established that there were any principles in common law (meaning laws resulting from decisions of judges rather than laws written in statutes) that all cases concerning the withdrawal of CANH from a person who lacks capacity had to be sanctioned by the court. O’Farrell J stated:

“Where the clinicians have follows the Mental Capacity Act and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court.”

O’Farrell J, therefore, declared:

“It is not mandatory to bring before the court the withdrawal of CANH from Mr Y who has prolonged disorder of consciousness in circumstances where the clinical team and Mr Y’s family are agreed that it is not in his best interests that he continues to receive the treatment.”

The decision of O'Farrell J can be found here.

     

Appeal

The Official Solicitor appealed this decision.

CANH continued pending the outcome of the appeal. However, on 22 December 2017, Mr Y passed away having developed acute respiratory sepsis. Although the case no longer served any purpose for Mr Y and his family, the court decided that the appeal should continue because of the importance of the issues raised.

In the appeal, the Official Solicitor argued that court approval must be sought in every case before CANH can be withdrawn from a person with PDOC to ensure that the person’s vulnerable position is properly safeguarded by representation through the Official Solicitor who can obtain independent expert medical reports about the person’s condition and prognosis and make submissions to the court on the person’s behalf, if appropriate. The NHS Trust and the Clinical Commissioning Group, on the other hand, were of the view that neither common law or statute (meaning written laws), by way of the European Convention on Human Rights (“ECHR”), impose a requirement to obtain court approval prior to the withdrawal of CANH.

The appeal hearing took place on 26 and 27 February 2018.

   

Decision

The judgment in this case has been given today.

In summary, Lady Black, who delivered the judgment on behalf of the Supreme Court, clearly concluded that there is no mandatory requirement in either common law or statute for the court to be involved before CANH can be withdrawn in cases where the there is agreement as to what is in the person’s best interests and the Mental Capacity Act 2005 and relevant guidance has been followed and observed. The judgement concludes:

“125. 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. As the decisions of the [European Court of Human Rights] underline, this possibility of approaching a court in the event of doubts as to the best interests of the patient is an essential part of the protection of human rights. The assessments, evaluations and opinions assembled as part of the medical process will then form the core of the material available to the judge, together with such further expert and other evidence as may need to be placed before the court at that stage.

126. In conclusion, having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases.”

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