The sad case of Hillsborough victim, Tony Bland (Airedale NHS Trust -v- Bland  AC 789), was the first case in which the withdrawal of clinically assisted nutrition and hydration (CANH) was authorised for a person in permanent vegative state. It held that withdrawal of CANH cases should be brought to court ‘at least for the time being and until a body of experience and practice has been built up which might obviate the need for application in every case’.
The question of whether that body of experience and practice now exists was considered by the Supreme Court in An NHS Trust (respondent) –v- Y (by his litigation friend, the official solicitor) and another with judgment handed down on 30 July 2018.
The Supreme Court has clarified the position confirming that it is not obligatory to bring all such cases to court where all the proper procedures have been observed and there is no doubt about what is in the best interests’ of the patient.
Following a cardiac arrest, Y fell into a prolonged disorder of consciousness (PDOC). Two medical experts agreed that Y was in a very low level of responsiveness with no awareness of self or his environment, and that it was highly improbable that he would re-emerge into consciousness. The clinical team and Y's family agreed that it would be in his best interests for CANH to be withdrawn leading to his death within two to three weeks. Y in fact sadly died pending the appeal, but the case continued because of the general importance of the question raised.
The Supreme Court has confirmed that neither common law (case law) or the European Court of Human Rights (EctHR), in combination or separately, have established a mandatory requirement for the court to be involved and for it to decide, upon the best interests of every patient with a PDOC, whether CANH can be withdrawn.
Although application to the court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances of the case, and there should be no reticence about involving the court in such cases (e.g. where a case seems ‘finely balanced’, or where there are differences of opinion between treating clinicians, or between treating clinicians and patients’ families as to whether ongoing treatment is in the patient’s best interests or where a dispute has arisen and cannot be resolved).
The Mental Capacity Act (MCA) 2005 does not single out any sub-class of decisions which must always be placed before the court, and there is no requirement for the official solicitor to be involved in best interest decisions in relation to serious medical treatment. Nor can any requirement to apply to court be found in any post MCA 2005 case law.
Whilst the MCA 2005 code of practice does refer to court applications in these types of cases, it is contradictory and ambiguous, and a code in these terms cannot extend the duty of the medical team. Whatever the weight to be given to the code by section 42 of the MCA 2005, it does not create an obligation, as a matter of law, to apply to court in every case.
As to the ECtHR, the Supreme Court says that the ECtHR has repeatedly set out certain factors that it considers relevant to the question of administering or withdrawing medical treatment, i.e. (a) whether there is the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2; (b) whether account has been taken of the patient’s previously expressed wishes and those of people close to the patient as well as the opinions of other medical personnel; and (c) whether there is the possibility of approaching the courts in the event of doubts as to the best interest decision to take in the patient’s best interests’. It has held that it has no difficulty in viewing the combined effect of the MCA 2005, the MCA code of practice and the professional guidance (particularly that emanating from the General Medical Council) as a ‘regulatory framework’, and the basic protective structure which is established by the MCA 2005.
Furthermore, there is no reason to differentiate CANH, which is in fact a form of medical treatment, from any other forms of life sustaining treatment. 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 withhold or withdraw treatment, but whether it is lawful to give it.
Giving treatment is only lawful where it is in a patient’s best interests, and doctors who do so reasonably believing that it is in the patient’s best interests, are protected under section 5 of the Mental Capacity Act 2005.
In reaching its decision, the Supreme Court considered recent important developments in the area, citing the accumulation of years of clinical expertise in treating individuals in PDOC, the development of detailed, professional guidance and the MCA 2005, all of which the court held safeguard patients and medical teams, whilst ensuring public confidence.
The decision provides welcome and long awaited clarification of the law. In reaching her decision (with which other members of the court agreed), Lady Black considered both the narrow legal question, and the wider context in which these decisions must be made. She highlights the desirability of keeping the court out of decisions in which its involvement is unnecessary, and of prioritising a patient’s best interests by enabling families to spend their last days with them without being distracted by court proceedings, or burdened by distressing delays occasioned by proceedings.
The decision also rightly acknowledges the practical reality that decisions about CANH withdrawal are often made consensually by doctors and relatives without court involvement where patients are significantly cognitively impaired but not unconscious, for example following stroke.
If the MCA 2005 is followed, the code of practice and regulatory framework observed, there is agreement as to what is in the patient’s best interests, second independent opinions are available which support the best interests’ decision, life sustaining treatment (including CANH) can be withdrawn/withheld without the need to make an application to court.
We recommend that there is a full note made of all discussions and reasons for decisions reached and more importantly that NHS bodies ensure that healthcare professionals to whom these decisions will fall are well versed with the regulatory framework and in particular the MCA 2005.