The Supreme Court of the United Kingdom ruled that neither the domestic law nor the European Convention on Human Rights (“ECHR”) made it mandatory, in every case, to apply to the court for approval before clinically assisted nutrition and hydration (“CANH”) could be withdrawn from a patient with a prolonged disorder of consciousness (“PDOC”). However, it emphasized that there would be cases in which, because of the circumstances appertaining, it would be desirable and even mandatory for such application to be made before withdrawing CANH from a PDOC patient.
Facts:
A man then in his fifties, Y, suffered a cardiac arrest, which resulted in a lack of oxygen and extensive brain damage. He had not regained consciousness since then and required CANH to keep him alive. Y’s treating physician concluded that, even if Y regained consciousness, he would have profound disability and would be wholly dependent on others for the remainder of his life. Another medical opinion concluded that Y was in a vegetative state with no prospect of enhancement. Both Y’s family and the clinical team agreed that withdrawal of CANH, which would lead to Y’s death in 2-3 weeks, would be in Y’s best interests.
The National Health Service Trust sought a declaration in the High Court that (a) it was not mandatory to seek the court’s approval for the withdrawal of CANH from a PDOC patient when both the patient’s family and the clinical team agreed that it was not in the patient’s best interests for him to continue to receive that treatment, and (b) that no civil or criminal liability would result if CANH were to be withdrawn.
The High Court granted a declaration that it was not mandatory to bring before the court the withdrawal of CANH from Y, who had PDOC, in circumstances where Y’s family and the clinical team were in agreement that continued treatment was not in his best interests. The Official Solicitor was granted permission to appeal to the Supreme Court of the United Kingdom.
Judgment:
The Official Solicitor contended that, as the necessary mechanisms still had not yet been developed, in every case, court approval had to be sought before CANH could be withdrawn from a PDOC patient.
In relation to the domestic law, the Supreme Court of the United Kingdom held the following and ruled that there was no legal requirement that, in every case, court approval invariably had to be sought before CANH could be withdrawn from a PDOC patient:
1. The fundamental question facing a doctor, or a court, considering treatment of a patient who was incapable of making his own decision was whether it was lawful to give it. It would be lawful to give treatment to a patient who was incapable of making his own decision only if it would be in the patient’s best interests. If the treatment would not be in the patient’s best interests, then it would be unlawful to give the treatment and, therefore, lawful to withhold or withdraw it.
2. By section 5 of the Mental Capacity Act (“MCA”) 2005, subject to the impact of any relevant lasting power of attorney or advance decision to refuse treatment, a doctor who gave a patient without capacity treatment that he reasonably believed to be in that patient’s best interests would not incur any liability, in relation to the treatment, that he would not have incurred if that patient had had capacity to consent and had consented to it. [Note: section 5 of the MCA 2005 provides that if a person, before doing an act in connection with the care or treatment of another person (“the Patient”), takes reasonable steps to establish whether the Patient lacks capacity in relation to the matter in question and then does the act in the reasonable belief that the Patient lacks such capacity and that the act is in the Patient’s best interests, that person would incur no more liability than he would have incurred if the Patient had had capacity to consent and had consented.]
3. The House of Lords in the pre-MCA 2005 case of Airedale NHS Trust v Bland [1993] AC 789 merely “recommended” “as a matter of good practice” that reference be made to the court. It did not impose in that case a legal requirement for an application to be made to the court before CANH could be withdrawn in all cases of persistent vegetative state (PVS) (or any other form of PDOC). When the MCA 2005 came into force, the domestic case law did not impose any universal requirement to apply for court approval prior to withdrawing CANH. The MCA 2005, the Code of Practice issued under MCA 2005 and the post-MCA 2005 domestic case law did not impose any requirement to make such an application.
Further, the court held that the ECHR did not give rise to any legal requirement that, in every case, court approval invariably had to be sought before CANH could be withdrawn from a PDOC patient.
In conclusion, the court held that:
1. If it appeared at the end of the medical process that the way forward was finely balanced, or there was a difference of medical opinion, or a disagreement to a proposed course of action from the clinical team, the patient’s family or any other relevantly interested party, an application could and should be made to the court.
2. Provided that the provisions of the MCA 2005 were complied with and the relevant guidance observed, and provided that there was agreement between the clinical team, the patient’s family and any other relevantly interested party upon what was in the patient’s best interests, treatment might be given to the patient in accordance with such agreement without involving the court.
3. Whilst it was not necessary to apply to the court in every case, there would be cases in which an application would be mandatory (or desirable) because of the particular circumstances, and, in those cases, there should be no hesitation about approaching the court.
Based on the above, the court dismissed the appeal.