Court decision not required in life-support withdrawal cases, Supreme Court rules

Posted on: July 30th, 2018

A landmark Supreme Court ruling confirms legal permission is no longer needed before withdrawing certain treatment from patients with severe illnesses where both families and doctors agree.

In June 2017 Mr Y, described as an active man in his fifties, suffered a cardiac arrest which led to extensive brain damage caused by a lack of oxygen. He sadly never regained consciousness and required clinically assisted nutrition and hydration (‘CANH’) to keep him alive. His medical team concluded that he was in a ‘vegetative state’ without prospect of improvement and even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remaining life. Mrs Y and their children believed that he would not wish to be kept alive given the doctors’ prognosis.

The appeal considered whether court approval must always be obtained before CANH, which is keeping a person with a ‘prolonged disorder of consciousness’ alive, can be withdrawn. On 1 November 2017, the NHS Trust sought a declaration in the High Court that it was not mandatory to seek the court’s approval for the withdrawal of such treatment from Mr Y when both the clinical team and the family agreed that it was not his best interests to continue treatment. The High Court granted a declaration that it was not mandatory to seek court approval for withdrawal of treatment. The judge granted permission to appeal directly to the Supreme Court.

The Supreme Court has today dismissed the appeal concluding it had not been established that the common law or the European Convention on Human Right give rise to the requirement to involve the court to decide upon the best interests of every patient before CANH can be withdrawn. The court was careful to emphasise that if the matter is finely balanced, if there is a difference of medical opinion, or a lack of agreement from family, a court application can and should be made.

The judgement tackles a tough ethical question about the withdrawal of medical treatment at the end of life and the process followed to make that decision. Some consider that the clinically assisted provision of food and fluid by tube as part of basic care and should never be withdrawn. The court upheld the view that artificial hydration and nutrition is part medical treatment and so can be withheld or withdrawn if it is in the patient’s best interests.
When a person is unable to make a decision themselves their best interests are ascertained by applying the Mental Capacity Act 2005, which allows substituted decisions to be made once a person has been given every opportunity to be supported in making their own decision. In deciding what is in a person’s best interests, the judgement clarifies that the court does not need to grant approval for the withdrawal of CANH when a person is in a persistent vegetative or minimally conscious state- so longs both the patient’s family and clinicians agree that it is in their best interests. Some have welcomed this as the removal of a bureaucratic and intrusive procedure at what is an already very difficult time, whist others consider it an erosion of an important safeguard.

Recording wishes in an Advance Decision, previously called a Living Will, or appointing someone as a Lasting Power of Attorney for Health and Welfare (‘LPA’), remain the best ways for people make their wishes known in advance and avoid costly and complicated court hearings. An LPA is a legal document authorising people known as attorneys to make decisions regarding your medical care and treatment in your best interests, should you lack mental capacity. You can authorise your attorneys to make decisions about refusing or withdrawing life-sustaining treatment which includes CANH. It is a very powerful document and it is vital that you take advice from a solicitor so that you fully understand the authority you are giving to your attorneys.

An Advance Decision to refuse medical treatment is a legal document which may contain a statement to refuse medical treatment thought necessary to sustain life. To be valid it needs to be in writing, signed and witnessed and comply with a number of other requirements. If a person creates the document when they lack mental capacity, or the decisions made are not applicable to the situation, then it does not bind those making health decisions. It is therefore wise to seek professional advice.

Spencer Gardner is an Associate Solicitor in our Court of Protection team.