Withdrawal of Clinical Assisted Nutrition and Hydration

Posted on: May 4th, 2018

NHS Windsor and Maidenhead Clinical Commissioning Group v SP [2018]

The NHS Windsor and Maidenhead Clinical Commissioning Group (CCG) made an application to the Court for a personal welfare order stating that it was not in the best interests of a patient (SP), who was in a permanent vegetative state, for CANH to be continued.

CANH withdrawal cases in the Court of Protection

The issue of whether cases involving the withdrawal of Clinical Assisted Nutrition and Hydration (CANH) must be sanctioned by the court where the doctors and the family are agreed that it is in the bests interests of the patient has received some considerable attention in the last months.

The case of Re Y [2017] EWHC 2866 (QB) ruled that there is no rule of principle or binding authority for the proposition that there is a legal obligation that all cases concerning the withdrawal of CANH from a person who lacks capacity must be sanctioned by the court. The case of Re Y [2017] has been appealed to the Supreme Court (judgment is awaited).

SP’s case

SP was 50 years old when she suffered a cardiac arrest on 3 October 2014. Sadly, she never regained consciousness and in April 2015 she was diagnosed as being in a permanent vegetative state. She had been in receipt of CANH since October 2014.

SP’s family who love her dearly, continue to visit her and to care for her. They all reached the view that it is in her best interests that CANH be withdrawn and for palliative care to be provided. They accept the inevitable outcome that following the withdrawal of CANH, SP would die within 7 to 14 days.

In light of Re Y [2017] being appealed, the CCG in SP’s case took the precaution of applying to the Court for an order stating that it was not in the best interests of SP for CANH to be continued.

Judgement

The court made the declarations and order sought and concluded that CANH should be discontinued and replaced by palliative care. Mr Justice Williams concluded;

“In this case, the evidence satisfies me that it is no longer in SP’s interests for her life to be artificially continued by CANH. I accept the evidence of the family and the clinicians. They have reached their positions after the most careful thought, placing SP at the centre of their concern, putting aside their own personal interests and concluding that she would not have wanted to go on living as she is. I have no doubt that the conclusions reached by SP’s family are in her best interests and that she would be grateful to them for having the strength to see this through.

Ultimately the decision is the courts. With inevitable regret but being clear that this in SP’s best interests I therefore conclude that CANH should be discontinued and replaced by palliative care. On the basis of the dates given by the family, taking steps now will avoid the sensitive dates the family have identified. I will therefore make the Declarations and orders sought.”

Coffin Mew Comment

Once the Supreme Court gives judgment in Re Y [2017] it is hoped that the position will become clearer. In the meantime, whilst the judgement is awaited, even when doctors and family are in agreement, applications should be made to the Court for personal welfare orders concerning whether it is in the best interests of the patient for CANH to be withdrawn.

Should you require further information on the application of the Best Interests Test in the Court of Protection, contact Hannah Rowlatt a Solicitor in our Vulnerable People and Court of Protection team.