M -v- A Hospital [2017] EWCOP 19 and NHS Trust -v- Y [2017] EWHC 2866 (QB)

Court of Protection case summary

17/11/2017

Simon Lindsay

Simon Lindsay

Partner

The arguments in favour of withdrawing clinically assisted nutrition and hydration from patients in a minimally conscious state without the cost and stress of a Court application are now stronger, but not quite yet conclusive.

Case

  1. M -v- A Hospital [2017] EWCOP 19
  2. NHS Trust -v- Y [2017] EWHC 2866 (QB)

Relevant Topics

  • Prolonged disorders of consciousness
  • Withdrawal of Clinically Assisted Nutrition and Hydration ("CANH")
  • Whether to make application to Court in such cases?

Practical Impact

It is not mandatory to make an application to Court to withdraw CANH from patients suffering prolonged disorder of consciousness where

    1. there is unanimity among the relevant stakeholders that it is in the patient's best interests to do so;
    2. relevant practice guidance has been adhered to (BMA, GMC and Royal College guidance);
    3. an expert second opinion is in place; and
    4. a structured medical assessment has been undertaken.

The comments in these cases are consistent with those made in the case of Briggs [2017] EWCA Civ 1169 (for a summary of this case please see: 

[https://www.bevanbrittan.com/insights/articles/2017/case-summary-briggs-v-briggs/])

Both cases are first instance decisions. Permission to appeal has been granted in the the 'Y' case such that definitive guidance on this issue may become available.

Summary

 

These cases give a helpful analysis of whether an application to Court is required in cases of withdrawal of CANH for patients in Vegetative State ("VS") or Minimally Conscious State ("MCS").

Background

M had suffered Huntington's disease for many years and was in MCS. Y had a prolonged disorder of consciousness and, after a range of structured medical assessments would have been diagnosed as being in VS but for the fact that his disorder had lasted less than 6 months.

In M, an application was made to Court which led to consideration of whether CANH should be withdrawn. In both cases the issue addressed was whether and when such cases should be put before a Court to seek a declaration that CANH could be withdrawn lawfully.

Key Findings

The Court had little difficulty in concluding that it was in M's best interests for CANH to be withdrawn, to allow her to pass away peacefully. She was in MCS and described by one witness as 'a body in a bed'. Her family, treating clinicians and an independent expert all agreed that it would be in her best interests to have CANH withdrawn. The Court found that it would have been consistent with her wishes and feelings. In effect the Court applied the criteria required by the Mental Capacity Act 2005. Thus far the issues were uncontroversial.

Y's case differed in that he had not had a prolonged disorder of consciousness long enough to warrant a diagnosis of VS; the Court did not have to address the issue of whether withdrawing CANH was in his best interests.

In both cases, the Court was invited to consider whether an application to Court was needed at all.

They came against the background of the Briggs case (see above) where Lady Justice King had commented that there were two broad propositions in such cases:

  1. Those cases where treatment, including withdrawal of treatment, is not in dispute and a best interests decision can safely be taken by the treating doctors; or
  2. Those cases where there is a dispute, in which case issues about whether it is in a patient's best interests for CANH to be withdrawn should be put before the Court.

Both cases fell into the former category; there was no dispute. The judge in M also had written evidence from the parties and the Official Solicitor on the question of whether an application to Court was necessary. He concluded that it was not necessary where there was:

  1. Unanimity about whether it was in the patient's best interests for CANH to be withdrawn; and
  2. Relevant professional guidance had been adhered to (specifically, he referred to GMC, BMA and Royal College of Physician guidance); and
  3. An independent expert opinion had been obtained which agreed that it would be in the patient's best interests for CANH to be withdrawn; and
  4. A structured medical assessment had been undertaken.

One concern in connection with the M case is that the judge's comments were not given after full debate, were not the central issue in the case and were not therefore binding. By contrast, the decision in Y did follow detailed argument involving the Official Solicitor. Both cases are persuasive authority for the proposition that if the pre-conditions above are met, there is no need to apply to Court for approval.

In the Y case, the Court granted appeal for a leap-frog appeal to the Supreme Court which should provide definitive guidance in this area. Meanwhile, for those organisations who are dealing with such cases and perhaps managing the expectations of families frustrated by the delay and ongoing suffering of patients in a prolonged disorder of consciousness, the issue of when to apply to Court has become a question of whether to simply proceed on the strength of the decisions in M and Y and the comments in Briggs.

It remains a contentious area. Patients have a right to life under Article 2 of the European Convention, clinicians have a duty to uphold that right and there is a strong case for saying that decisions as momentous as withdrawing CANH where it will lead to death should only be taken with the sanction of the Court. The Mental Capacity Act states that a decision about life-sustaining treatment must not be motivated by a desire to bring about death. The Code of Practice to the Mental Capacity Act varies between saying an application must or should be made.

At the same time, decisions about withdrawal of life-sustaining treatment (as opposed to CANH) are frequently taken and, where there is agreement, without reference to the Court. It would simply be impossible to refer all such decisions to the Court.

The best that can be said now is that the risk of a challenge to a decision to proceed without reference to Court is far lower than might have been the case previously but the earliest that definitive guidance may be available is once the Supreme Court has given its judgement.

 

This case summary was written by Simon Lindsay. Please contact Simon for further information.

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.

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