Guidance from the Court of Protection was, until recently, that withdrawal of clinically assisted nutrition and hydration (CANH) from patients in a persistent vegetative state (PVS) or minimally conscious state (MCS) should be brought before the court.

Since 1 December 2017, Court of Protection Practice Direction 9E (Serious Medical Treatment cases) is withdrawn and no longer applies.

Recent case law has considered the issues arising and has confirmed that the decision as to whether or not to withdraw CANH comes down to a best interests decision on the facts.

Background

The case of Anthony Bland,[1] a victim of the Hillsborough Stadium disaster, established that CANH is a form of medical treatment that can be withdrawn in some circumstances. It also confirmed that prior court approval should be sought in all cases.

In the Court of Protection case of Briggs[2], the court found it to be in the best interests of a minimally conscious patient for CANH to be withdrawn, with the inevitable consequence that the patient would die. According to Charles J, the decision that patients would have made regarding life-prolonging treatment when they had capacity should prevail over the presumption in favour of preserving their lives. The Court of Appeal held that it is not compulsory to apply to the court to withdraw CANH in PVS and MCS cases.

In M v A Hospital[3] the court again considered whether CANH should be withdrawn and the question of whether an application to court was necessary. The decision confirmed that where certain pre-conditions exist, including a best interests decision from an independent expert, an application to court is not necessary.

In NHS Trust v Y[4] the court found that there was no rule requiring court approval in all cases concerning the withdrawal of CANH from a person with a prolonged disorder of consciousness (PDOC) in circumstances where the clinical team and the family agree that it is not in the patient’s best interests that he continues to receive that treatment.

Interim guidance

In response to the recent legal judgments the British Medical Association, the General Medical Council and the Royal College of Physicians have issued interim guidance on making decisions in relation to life-prolonging treatment. The guidance deals specifically with withdrawal of CANH from patients in a PVS or MCS following sudden-onset profound brain injury.

The interim guidance is stated to have been published ‘in response to these legal developments and outlines what we consider to be good clinical and professional practice in this area.’

Existing guidance about making decisions in relation to life-prolonging treatment issued by each of the bodies will continue to apply and the interim guidance is supplementary.

The guidance states that ‘provided existing professional clinical guidance has been followed and all relevant parties agree that it is not in the patient’s best interests to continue such treatment good clinical practice does not require that court approval is sought before CANH can be lawfully withdrawn from patients in PVS and MCS.’ It recognises that there may be situations where an application to court is still appropriate, for example where there is disagreement about the patient’s best interests or prognosis or decision making is finely balanced.

The guidance recognises that recent case law has ‘increasingly emphasised the importance of decision making which gives effect to the patient’s wishes and feelings, beliefs and values. This involves seeking to understand what decision the patient would have made for themselves if the patient had retained capacity. This can include an assessment of how the patient would have viewed the decision, given the likelihood of recovery to a level that they themselves would perceive as an acceptable quality of life.’

The guidance does not apply to situations where a ‘best interests’ decision is not required; for example where the patient has made a valid and applicable Advance Decision to Refuse Treatment covering CANH, or where the patient has appointed a health and welfare attorney under a Lasting Power of Attorney, who has specific power to consent to or refuse life-saving treatment.

A link to the BMA guidance is found by clicking here.

The guidance sets out steps to assist clinicians with decision making and is divided into the following areas:

  • Assessment of levels of responsiveness and awareness
  • The Mental Capacity Act and best interests decision making
  • Conscientious objection
  • Seeking a second clinical opinion
  • Recording decisions
  • Reviewing decisions

Full guidance

The interim guidance states its intention to update existing guidance ‘to recommend safeguards to ensure that a robust and thorough assessment process continues to be followed prior to the withdrawal of CANH.’ Full guidance is expected in May 2018.

This is a highly emotive topic which has attracted considerable legal and ethical debate. The sanctity of life and self-determination are sometimes competing principles and may not sit easily together.

The case of Y, referred to above, is in the process of appeal to the Supreme Court and the issues should not be considered settled.

There is a suggestion in the interim guidance that Trusts ‘may well wish to seek legal advice as to whether an application is required in any particular case, bearing in mind the twin imperatives of (a) ensuring that patients lacking capacity are treated in accordance with their best interests and (b) that these organisations and their employees are only asked to make a decision concerning the withdrawal of CANH which is clearly lawful and appropriate in the circumstances of an individual case’. This is prudent, as is the comment that ‘some clinicians may also wish to seek advice from their professional organisation and/or defence body.’