Key facts

  • Application to withdraw clinically assisted nutrition and hydration brought by the CCG, supported by P's family, resulted in approval by the court
  • Where a person lacks capacity by way of being in a minimally conscious state (MCS) and there is evidence of their previously held views, the court will take them into account alongside carer and medical evidence when reaching its decision as to whether to withdraw treatment

Background

The healthcare team acted for the applicant CCG in the recent Court of Protection case involving withdrawal of clinically assisted nutrition and hydration.

In 2014, P took an overdose of heroin resulting in a severe hypoxic brain injury. Subsequently, she has been in a minimally conscious state and has been kept alive through CANH. She was initially PEG fed and subsequently fed with an NG tube. She has a tracheostomy. P’s family were unwavering in their belief, based on conversations they had conducted with P before the incident, that she would not want to live in such circumstances.

Importantly, P had tragically been involved in the decision to withdraw life support from her partner and had expressed firm views at that time that she would not like to be left in a similar condition.

P was assessed as being in a minimally conscious state. Staff at the unit where P resided were more optimistic about P’s presentation and many opposed the withdrawal of CANH. The ethos of the unit was ‘pro-life’ in nature and understandably where dedicated staff cared for P and others in a similar condition many found it difficult to contemplate the withdrawal of CANH.

P’s clinicians declined to act as decision makers. The applicant CCG therefore made the decision to bring the matter before the court. Helpfully, the CCG ‘front-loaded’ the application by seeking an expert second opinion before bringing the court proceedings. This meant that the case could be dealt with quickly and efficiently.

The court held that it was in P's best interests that CANH should be withdrawn - on the balance of probabilities P had previously expressed a firm view that she would not want to be kept alive in such circumstances.

In a situation where P had made very clear statements to her family about her wishes when she had capacity, this was clear evidence of her views and a determining factor in the assessment of best interests. The judge held that ‘I am satisfied that the sanctity of P’s life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014’.

Comment

Not all cases involving withdrawal of CANH need to be brought to the court following the decision of the Supreme Court in An NHS Trust -v- Y [2018] UKSC 46. However, cases like this, where there is doubt or disagreement about the proposed course of action should still be brought to court for determination.

Clinicians should be aware that the Official Solicitor and subsequently the court were concerned about a lack of up to date longitudinal assessment of P’s awareness, the latest WHIM assessment having been undertaken less than two years after P’s injury. This was not a criticism of the CCG, and there was no evidence from the clinicians involved as to why this was the case. While the evidence in P’s case was that further testing would not have made a difference, the Official Solicitor was clear that there is an expectation that the relevant guidance (Royal College of Physician's national clinical guidelines on prolonged disorders of consciousness 2013) should be followed.