Withdrawal of treatment – who has the final say?

By Caroline Hurst, Chartered Legal Executive, Court of Protection

On 30 July 2018, the Supreme Court handed down its much anticipated judgment on whether court approval is required to withdraw clinically assisted nutrition and hydration (“CANH”) from a person who is in a persistent vegetative state (“PVS”) or minimally conscious state (“MCS”) when the clinicians and family are in agreement that the treatment should be withdrawn. In short the Supreme Court says that it is not. Lady Justice Black, who gave the sole judgment, summarised:

“If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court.”

The proceedings came about when an NHS Trust made an application for CANH to be withdrawn from Mr Y who suffered a heart attack and due to loss of oxygen to the brain, suffered extensive brain damage. The clinicians and the family were in agreement that the CANH should be withdrawn, notwithstanding that when treatment was withdrawn, Mr Y was unlikely to survive longer than 2 – 3 weeks. In its application to the High Court, rather than the Court of Protection, the Trust sought a declaration that there was no legal requirement to seek approval from the court to the withdrawal of treatment, if there was agreement between the family and clinicians. This declaration was granted by Mrs Justice O’Farrell on 13 November 2017 and permission was granted to the Official Solicitor to leap frog the Court of Appeal and appeal straight to the Supreme Court. Whilst Mr Y died before the matter was heard by the Supreme Court, it was the view of the Supreme Court that the appeal should continue because of the public importance of the issue.

Those representing the Official Solicitor, as litigation friend for Mr Y, explained that the case was not about whether it was in a person’s best interest to have CANH withdrawn, but rather who is the person who decides whether it should happen. It was argued that whilst there was no statutory requirement that cases such as Mr Y’s be brought to court, common law requires that there must be a best interests application, even if there is agreement. This argument was dismissed by the Supreme Court with Lady Justice Black noting: “…I do not consider that it has been established that the common law or the ECHR, in combination or separately, give rise to the mandatory requirement for which the Official Solicitor contends…”

The Official Solicitor’s appeal was therefore dismissed by the Supreme Court.

Whether “permission” should be sought from the court for withdrawal of CANH is in an issue which is likely to continue to divide public opinion. On one hand, if the doctors and family are in agreement that CANH should be withdrawn, why should a judge who does not know the patient nor treat them, have the last say? However, it may be argued that a judge (and indeed the Official Solicitor) are the independent voice as to whether CANH should be withdrawn. What if family members have ulterior motives? What if doctors haven’t attempted all possible treatments because they are of the firm view that the person would not recover? Is this decision likely to result in Trusts suggesting the withdrawal of CANH sooner than would be the case if it were the Court of Protection who had to decide? Is the court showing compassion for the family, or is it removing a legal safeguard for a person who is unable to protect it for himself? Whatever your view, the position is now clear. Time will tell as to whether Trusts continue to make (arguably unnecessary) applications. One thing is certain, there will need to be very careful scrutiny of any best interests decisions taken, to ensure that the spirit and letter of the Mental Capacity Act 2005 is followed.

Do you agree with the decision? Share your thoughts with the CoP team on Twitter (@SwitalskisCoP) using the hashtag #WhoDecides