Landmark ruling on end-of-life decisions for patients with a prolonged disorder of consciousness
31st July 2018
The Supreme Court has ruled that judicial approval will no longer be required for the withdrawal of clinically assisted nutrition and hydration (CANH), a life-prolonging treatment, for individuals with a prolonged disorder of consciousness (PDOC), which includes both a permanent vegetative state (PVS) and a minimally conscious state (MCS), provided that both the family and medical team involved agree that this is in the individual's best interests.
An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) and another  UKSC 46
In June 2017, Mr Y a 52-year-old male suffered a cardiac arrest which left him with severe brain damage and a PDOC. Mr Y required CANH to keep him alive and following review by a Consultant and Professor in Neurological Rehabilitation in October 2017, it was considered that Mr Y was in a vegetative state “with no prospect of improvement”.
Following this prognosis, Mr Y’s family believed that he would not wish to be kept alive and were in agreement with the clinical team, that it would be in his best interests to withdraw CANH, which would consequently lead to his death within two to three weeks.
The NHS Trust involved applied to the High Court on 1 November 2017 for a declaration firstly that it was unnecessary to apply to the Court of Protection for a decision to be made in circumstances where both the family and professionals believed it was in the individual’s best interests to withdraw CANH and secondly, that there would be no civil or criminal liability if CANH were withdrawn.
The High Court confirmed that there was no legal authority requiring court approval for all cases concerning the withdrawal of CANH from a person who lacks capacity and the declaration was granted. Mrs Justice O’Farrell stated that:
“where the clinicians have followed 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.”
However the decision was appealed on behalf of Mr Y by the Official Solicitor who argued that all CANH withdrawal cases should receive court approval in order to protect those patients who are in vulnerable positions.
The Supreme Court has now reached its decision and has dismissed the Official Solicitor’s appeal. The decision provides welcome clarity in the law and Lady Justice Black confirmed that it did not violate an individual’s rights under common law or under the European Human Rights Convention.
Therefore if the provisions of the Mental Capacity Act 2005 are followed, the relevant guidance is observed and there is agreement between the family and medical professionals that it is in the best interests of the patient, then CANH can be withdrawn without an application to the court.
The decision is likely to divide opinion. On one hand the decision is likely to be welcomed as humane and compassionate, allowing loved ones and the medical team to make a decision that is in the best interests for the individual involved. On the other hand, Dr Peter Saunders, Campaign Director of Care Not Killing, stated that the decision has removed “an important safeguard from those without a voice” and highlighted that he was “very concerned and quite disappointed by the Supreme Court ruling”.
It is estimated that today’s ruling will affect up to 24,000 patients who are in a permanently vegetative state. A study carried out at the University of York Centre for Health Economics highlighted that the average persistent vegetative state case that goes to court takes approximately nine months and costs the NHS about £122, 000 in legal costs and care provision during the waiting period.
However, Lady Justice Black emphasised that “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.”
The Supreme Court has made it clear that a court application is not needed for every case concerning the withdrawal of CANH however it is crucial that relevant professional guidance is followed and that a second clinical opinion from an a senior independent clinician with experience of PDOC and no prior involvement is sought.
We recommend that legal advice is sought if you are unsure as to whether a court application is needed to withdraw CANH from an individual with PDOC. We have a specialist health care advisory team who can provide advice and support on all issues concerning capacity, consent and medical treatment.
A copy of the Supreme Court’s Judgement can be found here.
If you wish to discuss the impact of this judgement or find out more on how this is likely to impact your organisation please contact Nicola Richardson.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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