Landmark Supreme Court judgment on withdrawing clinically assisted nutrition and hydration

Hempsons acted for the successful CCG and NHS Trust in today’s Supreme Court judgment on when an application to Court is needed to withdraw clinically assisted nutrition and hydration

Y [2018] UKSC 46

Factual background

Mr Y was an active man in his 50s when, in June 2017, he suffered a cardiac arrest which resulted in brain damage. After extensive assessment, his treating team concluded that he was suffering from a Prolonged Disorder of Consciousness (PDOC) and would likely require a significant level of care for the rest of his life. His family believed that he would not wish to be kept alive in such circumstances. They agreed with his treating team that it was not in Mr Y’s best interests to continue to receive clinically assisted nutrition and hydration (CANH) and that this should be withdrawn, allowing him to pass away with dignity. An expert clinician independent of the NHS bodies involved agreed that this was in Y’s best interests.

Legal proceedings

The legal position at the time was that Court endorsement should be sought prior to withdrawal of CANH from a patient in a PDOC, regardless of the level of agreement as to best interests between those involved in the patient’s case. The treating Trust (with the support of the CCG) decided to challenge this and, on 1 November 2017, applied to the Queen’s Bench Division of the High Court for a declaration that it was not mandatory to apply to the Court of Protection prior to withdrawal of CANH from a patient in PDOC when the family and the clinical team are in agreement that it was not in the patient’s best interests to receive that treatment.

On 13 November 2017 Mrs Justice O’Farrell handed down judgment setting out that it was not mandatory to take Mr Y’s case to the Court of Protection prior to withdrawal. The Official Solicitor appealed the decision and permission was granted to ‘leapfrog’ straight to the Supreme Court.

The Supreme Court hearing took place on 26 and 27 February 2018. Prior to the hearing, Mr Y passed away. However, because of the importance of the issues raised by the case, the Supreme Court decided that they would still hear argument and give a ruling.

Supreme Court judgment

Lady Black giving the leading judgment concluded that neither the common law nor the ECHR impose a mandatory requirement to involve the Court to decide upon the best interests of every patient in a PDOC before CANH can be withdrawn. As long as the provisions of the Mental Capacity Act 2005 (MCA) are followed, the relevant professional guidance is adhered to and there is agreement between family and clinicians as to best interests, there need not be an application to the Court prior to withdrawal. Link to judgment here.

What does this mean?

This is a significant judgment which provides much needed clarity as to the role of the Court in end of life care:

• For clinicians working with patients in PDOC, there will be no need to involve the Court or the Official Solicitor prior to withdrawal of CANH of patients in a PDOC when all are agreed as to best interests. However, it is vitally important that clinicians demonstrate consideration and application of both the MCA and the relevant professional guidance (most importantly the RCP guidelines). There will need to be clear evidence of discussion and agreement with family members as to the proposed withdrawal.
• In cases where there is no such agreement, i.e. when there is a dispute as to diagnosis or best interests, an application must still be made to the Court prior to withdrawal.

Please contact Helen Claridge, the solicitor who acted in this case, if you have any questions in relation to this case or any related queries.

We will be running seminars across our offices on the effect of this judgment on clinical decision-making and connected issues – please email events@hempsons.co.uk for priority booking.