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Supreme Court considers when court approval is needed to end life-sustaining treatment

Date:3 AUG 2018
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Private Client analysis: Alex Ruck Keene, barrister at 39 Essex Chambers, examines the Supreme Court’s confirmation in An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) [2018] UKSC 46, [2018] All ER (D) 167 (Jul) that it was not mandatory to seek court approval for withdrawal of clinically assisted nutrition and hydration (CANH) from a patient suffering from a prolonged disorder of consciousness (PDOC) where the patient’s clinical team and family agreed that continued treatment was not in his best interests.

What are the practical implications of the judgment?

The Supreme Court has made clear that it is not always necessary to have the approval of the court before CANH can be withdrawn from a PDOC patient, and it has also answered the broader question of when it is necessary to go to court before withdrawing or withholding any form of life-sustaining treatment from a person lacking the capacity to consent to or refuse such treatment.

The court found that there was no need to treat CANH in a different way legally from other forms of life-sustaining treatment, nor PDOC patients in a different way from, say, patients with a degenerative neurological condition or critically ill patients. In all of these cases, where the patient lacked the capacity to consent to or refuse treatment, the medical team took its decisions as to treatment, whether it was CANH, artificial ventilation, cardio-pulmonary resuscitation or administration of antibiotics, by determining what was in the patient’s best interests.

The court observed that the process of reaching such decisions would involve a doctor with specialist knowledge of the patient’s condition, with a second opinion from a senior independent clinician with no prior involvement in the patient’s care. If, at the end of the medical process, it was apparent that the way forward was finely balanced or there was 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 should be made. But if the provisions of the Mental Capacity Act 2005 (MCA 2005) were followed, the relevant guidance was observed and there was agreement as to what was in the best interests of the patient, there was no need to apply to the court before life-sustaining treatment, such as CANH, could be withdrawn or withheld.

It would appear that the same approach could be applied to other decisions about care and treatment under MCA 2005, s 5, although in many such cases, the person themselves may be able to express wishes and feelings which would have to be considered when identifying whether a court application is mandated.
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What was the background?

In 2017, the patient had suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage. He never regained consciousness and required CANH to stay alive.

His treating physician concluded he was suffering from PDOC and would have profound cognitive and physical disability if he were ever to regain consciousness. Giving a second opinion, a consultant considered that the patient was in a vegetative state and that there was no prospect of improvement. The clinical team and the family agreed that it would be in the patient’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.

The respondent NHS trust sought a declaration in the High Court that it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patient’s family agreed that it was not in the patient’s best interests to continue treatment. It also sought a declaration that no civil or criminal liability would result if CANH was withdrawn.

The High Court granted the applications but also granted the appellant Official Solicitor permission to appeal directly to the Supreme Court. The appellant argued that court approval had to be sought in every case before CANH could be withdrawn from a person with PDOC. He submitted that this mandatory requirement to involve the court was derived from the common law and Articles 2 and 6 of the European Convention on Human Rights (ECHR).

Although the patient died in the intervening period, the Supreme Court decided that the appeal should still be heard because of the general importance of the issues raised.

What did the Supreme Court decide?

Lady Black, who gave the sole judgment (with which Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed), considered the common law position based on the House of Lords’ decision in Airedale NHS Trust v Bland [1993] 1 All ER 821. She found that the House of Lords had not imposed a legal requirement that in all PDOC cases, an application had to be made to the court before CANH could be withdrawn: it had merely recommended as a matter of good practice that reference be made to the court. 
Accordingly, when MCA 2005 came into force in 2007, there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH, and no such requirement could be found in subsequent case-law.

Turning to the position under the ECHR, Lady Black found that Lambert and others v France (46043/14) (2015) 38 BHRC 709 was part of a consistent line of Strasbourg decisions which showed that the European Court of Human Rights did not regard it as problematic, in principle, that a decision to withhold or withdraw CANH from a PDOC patient could be made by a doctor without obligatory court involvement.

Lady Black concluded that it had not been established that the common law or the ECHR, in combination or separately, gave rise to the mandatory requirement to involve the court to decide upon the best interests of every patient with PDOC before CANH could be withdrawn. Lady Black placed her conclusions in the wider clinical context as well as relevant guidance to set out the decision-making process required of clinicians, discussed under ‘practical implications’ above.

The Supreme Court, therefore, dismissed the appeal.

Alex Ruck Keene acted for two of the interveners in this case, the Intensive Care Society and the Faculty of Intensive Care Medicine.

Interviewed by Robert Matthews.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial