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withdrawing life support – when is the court required?

30 July 2018

Withdrawing life support – when is the court required?

Albeit in very sad individual circumstances, today’s judgment by the Supreme Court on An NHS Trust v Y [2018] UKSC 46 is hopefully one of the rare occasions when courts have an opportunity to bring relief for professionals and families alike.

Since the House of Lords judgment on Tony Bland in 1993, when the court authorised the withdrawal of the life sustaining treatment which had kept him alive since the Hillsborough disaster in 1989, long held practice (latterly embodied in Court of Protection Practice Direction 13E) was that a decision about withdrawal of clinically assisted nutrition and hydration (CANH) from a patient in a prolonged disorder of consciousness (PDOC) – covering persistent vegetative state (PVS) or minimally conscious state (MCS) – would only be made with court approval. In November 2017 the courts said in Mr Y’s case that it was not in fact mandatory to bring proceedings in those circumstances, and this has now been upheld by the Supreme Court.

Background

Mr Y, aged 52 years, suffered a cardiac arrest resulting in severe cerebral hypoxia and extensive brain damage. It was common ground that he lacked the capacity to make decisions regarding his future care and treatment. Two experts shared the view that he had no awareness of environment and it was improbable that this would improve. As is often the case in these sad situations, he required CANH to keep him alive.

The clinical team and family agreed that it was not in Mr Y’s best interests to continue CANH. The Trust applied to court seeking a declaration that in circumstances when the clinical team and family agreed, that it was not mandatory to seek court approval for withdrawal. This was opposed by the Official Solicitor, acting on behalf of Mr Y himself.

After the High Court decision Mr Y sadly died of respiratory sepsis, but the issue was so important as a matter of guidance for hundreds or thousands of other cases that the Supreme Court still heard the Official Solicitor’s further appeal.

Legal consideration

The Official Solicitor argued that when CANH withdrawal is contemplated for PDOC patients, court oversight was the only way to properly safeguard this vulnerable category of patients. No doctor can administer medical treatment to a patient of sound mind without their consent. For patients that are unable to make this decision themselves, it is a best interests decision, under the Mental Capacity Act. But within the particular subcategory of those in PDOC, it was argued that additional caution was required. Indeed the courts have previously reflected that this not only protects the patients but also the clinical teams, whilst reassuring the public of the scrutiny over end of life decisions. It was argued that in order for the UK to comply with its European Convention on Human Rights (ECHR) obligations, court oversight is necessary.

In a landmark decision, the Supreme Court stated that the fundamental question facing a doctor is this situation is not whether it is lawful to withdraw, but whether it is lawful to give the treatment. Clinical teams are afforded protection from civil or criminal liability where they reasonably believe treatment is in the patient’s best interests. In a detailed examination of the Mental Capacity Act 2005, associated guidance as well as domestic and European case law, the Supreme Court stated that the courts had not previously “mandated”, but “recommended” application to court as a matter of good practice. It decided that CANH was not an easy treatment to define and saw no reason why it should be treated differently from the other forms of life sustaining treatment and the decisions that are routinely made without the court’s involvement. There was no breach of ECHR rights given that:

  • the UK had a regulatory framework compatible with Article 2
  • the law requires doctors to take account of patient’s express wishes and feelings, other medical opinion and views of other people close to the patient
  • where there is a dispute or a fine balance of best interests, the courts can and should still be involved.

For all these reasons the court unanimously decided that it was not mandatory to apply to court to authorise the withdrawal of CANH from a PVS / MCS patient where there was clear consensus.

Conclusion

Ever improving technological advancements mean that we able to keep patients alive. In all aspects of medicine there is often tension between what can be and what should be done. The courts are rightly circumspect before interfering in the exercise in good faith of expert clinical judgment in conjunction with patients themselves, or their loved ones.

Today’s judgment offers a welcome relief that where there are no disputes between clinical teams and the family, appropriate and compassionate decisions can be made, without the added distress, delay and expense of court proceedings.

On a practical level today’s judgment means that:

  • Where there is a patient in a PDOC and removal of CANH is being considered, application to court is not mandatory provided there is no disagreement between the clinical team or family
  • This case, nevertheless, underlines the need to have detailed capacity and best interests evidence with appropriate, detailed input from everyone who is “engaged in caring for [the patient] or interested in their welfare”
  • Where withdrawal of care is anticipated, involvement of the IMCA service would be very useful
  • Due account should always be taken of previous wishes and feelings as well as investigation of any advance decision to refuse treatment (ADRT). In this case there would have been no question of continuing to provide such treatment if Mr Y had made a binding and applicable ADRT which refused it
  • Best interests goes further than medical considerations to consider the patient as a whole person (see the Supreme Court judgment in Aintree v James), and wider social and religious considerations are very important
  • Where there is a fine balance to the decision or a dispute, court oversight will still be required.

In the event that you wish to discuss today’s judgment in more detail, or require training to your staff on the legal issues, please do not hesitate to get in touch.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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