Written by Lee Reilly, medical negligence solicitor at Fletchers.
The Supreme Court have now clarified the law governing the withdrawal of treatment from patients in permanent vegetative state.
Essentially legal permission will no longer be needed to withdraw life-sustaining treatment where an agreement between clinicians and relatives has been made to withdraw. Previously, even if the doctors and family agreed to cease life sustaining treatment, this could only be put into effect once it had been agreed by the courts (the specific court is called the Court of Protection).
In An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant) click here to read the full judgement the court considered an application brought forward by the Official Solicitor (the Official Solicitor to the Senior Courts, who makes decisions on behalf of those who are unable, due to mental capacity, to do so themselves).
The patient, known as Mr Y, was previously an active man in his fifties. Following a cardiac arrest in June 2017, he suffered hypoxia and extensive brain damage. He never regained consciousness. His clinicians adjudged him to be in a vegetative stage with no chance of recovery.
He required clinically assisted nutrition and hydration “CANH”, provided by means of a ‘feeding tube’, to keep him alive.
In late September 2017, his treating physician concluded that he was suffering from a prolonged disorder of consciousness (PDOC) and that even if he were to regain consciousness, he would have profound cognitive and physical disability, which would render him dependent on others to care for him for the rest of his life.
A second opinion was obtained in October 2017, from a consultant and professor in Neurological Rehabilitation, who opined that Mr Y was in a vegetative state and that there was no prospect of improvement.
Mrs Y and their children believed that he would not wish to be kept alive given the doctors’ views about his prognosis. The clinical team and the family were all in agreement that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.
The NHS trust asked the High Court to declare that it was not necessary to apply to the Court of Protection for a decision when the doctors and the family all believe it is in the patient’s best interests.
The judge agreed with the NHS Trust, but the Official Solicitor appealed on behalf of Mr Y, . That appeal has now been dismissed by the Supreme Court.
Mr Y had passed away prior to the decision handed down by the Court however, the case continued so that a court ruling could be made on the issues, due to the importance of the underlying issues.
The Supreme Court confirmed that case law (past rulings, which are used as precedents) nor European Court of Human Rights had established a requirement that the Court decide upon the best interests of every patient with a PDOC and consider whether CANH could be withdrawn.
The court concluded that if the provisions of the Mental Capacity Act 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 decision, while potentially controversial, provides welcome and long awaited clarification of the law. Essentially, it is not necessary to make an application to the Court to decide whether or not withdrawal of CAHN is in fact in the best interests of the patient, where there is a consensual decision made by doctors and relatives.
In instances such as the unfortunate case of Mr Y, where all medical practices and guidance has been adhered to and there is an agreement between the treating clinicians and the family as to the withdrawal of care, this decision will be a welcome one. It is hoped that it will prevent doctors and families from having to go through unnecessary and distressing court proceedings to do what they believe is in the best interests of the patient or relative.
However, it must be pointed out that the Court of Protection’s role is to do just that; protect the rights of the vulnerable and speak up for those who, for one reason or another, have lost their voice. The recent decision by the Supreme Court has to some effect, removed the Court of Protection from the equation when the family and doctors are in agreement with respect to the withdrawal of care, so who then is left to ensure the rights of the patient are being preserved, that the framework for these decisions is adhered to?
Whilst this change in the law will be welcome to some, we must now ensure that this change is applied correctly and that there are stringent controls in place as to its use and application. Given that the Court of Protection have been removed from the decision making process, we have to ensure that the decisions made off the back of this decision are correct and held to the highest levels of scrutiny.