In a patient’s best interests: Reaching agreement on withdrawing clinically assisted nutrition and hydration

On 30 July 2018 the Supreme Court handed down its judgement in the case of An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants) [2018] UKSC 46.

Background

In June 2017, Mr Y had a cardiac arrest which left him with extensive brain damage due to a lack of oxygen and from which he never regained consciousness. Mr Y required clinically assisted nutrition and hydration (CANH) to keep him alive. His treating physician concluded that he was suffering from prolonged disorder of consciousness (PDOC) and, even if he were to regain consciousness, he would have profound cognitive and physical disability and therefore be dependent on others to care for him for the remainder of his life. A second independent physician’s opinion was obtained which confirmed that in their opinion Mr Y was in a vegetative state with no prospect of improvement.

Given the doctor’s view of his prognosis, Mrs Y and their children believed that Mr Y would not wish to be kept alive. The clinical team and Mr Y’s family therefore agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, resulting in his death within two to three weeks.

The NHS Trust succeeded in its application for a declaration from the Queen’s Bench Division of the High Court that it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient suffering from PDOC where the clinical team and patient’s family were in agreement and that no civil or criminal liability would arise if CANH was withdrawn. The judge however granted the Official Solicitor, who was acting as Mr Y’s litigation friend, permission to appeal directly to the Supreme Court.

The Official Solicitor’s case focused on the fact that judicial scrutiny was required in every case to ensure that the patient’s vulnerable position was properly safeguarded which could only be ensured by the oversight of an independent and neutral person such as the Official Solicitor. The Official Solicitor also sought to invoke various articles of the European Convention on Human Rights (ECHR). This included that article 14 (prohibition of discrimination) would be in breach as a patient in Mr Y’s position would have less protection than an adult with capacity who was terminally ill as they were protected in relation to assisted dying by section 2 of the Suicide Act 1961.

Mr Y passed away before the case made it to the Supreme Court but the appeal continued because of the general importance of the issues raised by the case.

The Judgement

The Supreme Court unanimously dismissed the appeal with Lady Black providing the sole judgement.

The judgement focused on three main areas; (1) the basic position with regard to medical treatment, (2) domestic law and (3) the ECHR.

1. “The fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patient’s best interests. Accordingly, if the treatment would not be in the patient’s best interests, then it would be unlawful to give it, and therefore lawful, and not a breach of any duty to the patient, to withhold or withdraw it… if a doctor carries out treatment in the reasonable belief that it will be in the patient’s best interests, he or she will be entitled to protection from liability conferred by section 5 of the Mental Capacity Act 2005 (“MCA 05“).”
2. Lady Black referred to the case of Airedale NHS Trust v Bland [1993] A.C. 789 as a starting point where, in her opinion, no requirement was imposed under common law for an application to be made to the court before CANH can be withdrawn for a patient in a persistent vegetative state. Instead they “recommended” “as a matter of good practice” that reference could be made to the court. Lady Black confirmed that the position has not changed since the MCA 05, which came into force in 2007, was introduced either in that legislation or the cases since.
3. Here Lady Black considered the case of Lambert v France 62 EHRR 2 and subsequent cases which set out that there was not a need for an equivalent provision to be introduced. Whilst the Official Solicitor argued that France has formally prescribed procedures, which is not the case in the UK, Lady Black viewed the “combined effort of the MCA 2005, the Mental Capacity Act Code, and the professional guidance… as a “regulatory framework””.

In relation to the Official Solicitor’s argument focusing on article 14, Lady Black agreed that there is a distinction “between an act which constitutes the intentional taking of life and therapeutic abstention from treatment” the latter of which is the case here.  

Conclusion

The judgement from the Supreme Court confirms that a court application is not required in all cases in order to decide whether CANH can be withdrawn from PDOC patients. Provided the provisions of the MCA 05 and relevant guidelines are followed, and there is an agreement between the clinical team and the patient’s family that it is in the best interests of the patient, the patient can be treated accordingly. Lady Black does however explain that “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“.