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The Supreme Court has made clear that it is not always necessary to have the approval of the court before CANH can be withdrawn from a PDOC patient, and it has also answered the broader question of when it is necessary to go to court before withdrawing or withholding any form of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of the patient, there was no need to apply to the court before life-sustaining treatment, such as CANH, could be withdrawn or withheld.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.
