Families will no longer need to go before the courts for approval to withdraw feeding tubes from loved ones in a permanent vegetative state, after the UK’s highest court upheld a ruling on the end-of-life decision-making of a man with extensive brain injury.
The 52-year-old man, who can only be identified as Mr Y, had been in a vegetative state since June 2017. Experts said it was improbable he would ever regain consciousness and agreed with family members’ decision to withdraw hydration and nutrition – something which usually requires approval from the Court of Protection.
Groups representing people with diminished capacity had appealed an earlier High Court ruling allowing this withdrawal, and Mr Y died in December while still being artificially fed. This appeal was dismissed by the Supreme Court on Monday.
The decision means where doctors and families are in agreement of the best interests of patients there should be no need for a judge’s authorisation – a process which can take years to complete and cost local health authorities tens of thousands in legal bills for appeals.
Mr Y’s condition was classed as a prolonged disorder of consciousness (PDOC), which covers comas, vegetative and minimally conscious states after a brain injury. If he were to regain consciousness his doctors said he would likely have profound physical and cognitive disability and would be dependent on others for his care.
Though he had not drawn up an advance decision notice saying he would decline treatment in the event of falling into a vegetative state, Mr Y’s family were of the view that he would not want to be kept alive.
His family and doctors had agreed on a plan to withdraw clinically assisted nutrition and hydration (CANH), which would lead to him dying naturally within two to three weeks.
In November 2017, a High Court judge granted a declaration that it was not mandatory to bring before the court the withdrawal of CANH from Mr Y in circumstances where there was no dispute between his relatives and specialists.
She gave permission for an appeal by the Official Solicitor – who represents people who lack capacity – and CANH was provided in the meantime, but Mr Y died in December.
It was decided that the appeal before five Supreme Court justices should proceed because of the general importance of the issues raised.
Richard Gordon QC, for the Official Solicitor, said that the central issue was whether the obtaining of an order from the Court of Protection, before CANH could lawfully be withdrawn from a person in a PDOC, was unnecessary where treating clinicians and the family agreed it was not in the patient’s best interests.
He added: “This case is not about whether it is in the best interests of a patient to have CANH withdrawn. It is about who decides that question.”
Although the Official Solicitor accepts there is no statutory requirement to bring such cases to court, he argues that the common law or human rights law require that every case involving the withdrawal of CANH be the subject of a best interests application regardless of whether there is a dispute.
On Monday, the justices unanimously dismissed the appeal.
Lady Black said: “Having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR (European Convention on Human Rights), in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn.
“If the provisions of the MCA 2005 (Mental Capacity Act) 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.”
She emphasised that, although application to court was not necessary in every case, there would undoubtedly be cases in which an application would be required – or desirable – because of the particular circumstances and there should be no reticence about involving the court in such cases.
Additional reporting by PA
