Withdrawal of Clinically Assisted Nutrition and Hydration and the involvement of the Court of Protection
Earlier last month, judgment was handed down at the Supreme Court considering whether decisions about withdrawing Clinically Assisted Nutrition and Hydration (‘CANH’) from a person with Prolonged Disorder of Consciousness (‘PDOC’) requires final determination of the Court of Protection that it is in the person’s best interests, where there is no dispute between the family members and hospital staff as to whether this should be withdrawn.
The case involved Mr Y, a 50 year old man who suffered a cardiac arrest resulting in severe cerebral hypoxia and extensive brain damage in June 2017. Unfortunately, Mr Y did not recover from this and he required CANH. It was medically determined that Mr Y was suffering from PDOC and was in a persistent vegetative state which he was not likely to regain consciousness from. Mr Y’s family did not consider that Mr Y would want to be kept alive in such a situation and they therefore agreed with the clinical team that it would be in his best interests for his CANH to be withdrawn. It was accepted that this withdrawal would result in Mr Y’s death within three weeks.
As there was no dispute as to whether this withdrawal of CANH was in Mr Y’s best interests, the relevant NHS Trust did not apply to the Court of Protection for a declaration that this was in his best interests. Instead, it applied to the Queen’s Bench Division of the High Court for a declaration that there was no mandatory requirement for it to seek the approval of the Court of Protection for the withdrawal of CANH, and that it would not be civilly or criminally liable as a result of this decision.
The Official Solicitor was subsequently appointed to act as Mr Y’s litigation friend. The Official Solicitor’s position was that, in order to safeguard Mr Y, under common law and the ECHR, the NHS Trust was required to seek such a declaration from the Court of Protection, even where all medical professionals and family members were in agreement that withdrawal of CANH was in Mr Y’s best interests.
The High Court Judge concluded that this position was not established under any common law principle, and she concluded that the NHS Trust was not required to obtain the sanction of the Court of Protection.
The Official Solicitor appealed this decision. Permission to appeal was granted and the case was ‘leap-frogged’ to the Supreme Court instead of having to go to the Court of Appeal first. Unfortunately, Mr Y died before this case reached the Supreme Court, but the court decided that the appeal should be determined because of the “general importance of the issues raised by the case” [paragraph 8].
In a landmark decision, the Supreme Court determined that neither common law nor the ECHR “give rise to the mandatory requirement […] to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn”[paragraph 126].
In reaching this conclusion, Lady Black gives some very helpful guidance, reiterating some points of law that were already relatively clear but also providing clarification in greyer legal areas.
The first thing this decision does, is to confirm the position set out from the case in Airedale NHS Trust v Bland  AC 7899 that CANH is medical treatment and that it therefore should not be treated differently from other forms of life-sustaining treatment.
Lady Black’s analysis and summary of the legislation and legislative guidance is also incredibly helpful, as she highlights the potential for confusion and tension between Practice Direction 9E (which appears to say that all cases of withholding or withdrawing treatment in relation to a minimally conscious person should be brought before the court) and Chapter 8 of the Mental Capacity Act 2005 Code of Practice (which indicates that matters should be brought before the court where there are doubts or conflicts as to what is in a person’s best interests). She also notes that the Code of Practice, between Chapters 5 and 8, is not entirely consistent in whether there is a mandatory requirement in all cases, as mentioned above. This decision clarifies that where parties are in agreement as to the best interests of the patient in such a position as Mr Y, it is not compulsory to apply to court to sanction the decision to withdraw CANH.
In so doing, Lady Black returns to the Mental Capacity Act 2005, and provides guidance as to how practitioners should approach such decisions by satisfying first the conditions of Section 5 (which provides some protection from liability for acts done in connection with care or treatment) and then moving through the checklist in Section 4. This checklist outlines the factors to be taken into consideration when determining what is in a person’s best interests and imposes the safeguard that the decision made by the doctor, or other, cannot be motivated by a desire to bring about the patient’s death. The implication running through this case is that, where practitioners apply the Mental Capacity Act correctly, and where the result is agreement as to the patient’s best interests, the Court will not be required to effectively rubber stamp this provision. The Court appears, therefore, to be saying that the Act should lead a practitioner down the path to make a decision as to best interests, and that the Court is to act as a safety net in nuanced cases, or cases where there is disagreement as to the patient’s best interests.
This judgement therefore leaves the state of the law in relation to the withdrawal of CANH for persons suffering with PDOC, or any other patients lacking capacity, crystal clear.
Lady Black was also careful to highlight her concerns that a mandatory requirement to seek such a declaration could cause family members who are already in an incredibly difficult and stressful situation. She was also wary of discouraging clinicians and families from making true best interests decisions in the first place, where they know the matter will have to go to court anyway, and also of discouraging clinicians from beginning CANH because of the procedure involved with its potential future withdrawal.