The Supreme Court has ruled that legal permission will no longer always be needed to withdraw treatment from patients in a permanent vegetative state.
In so doing, it has gone some way to answer the question of when it is necessary to go to court before withdrawing or withholding any form of life-sustaining treatment from a person lacking the capacity to consent to or refuse such treatment.
In this precedent-altering case - contrary to what the House of Lords in the Tony Bland Hillsborough case - it will no longer be always necessary to have Court of Protection approval to withdraw treatment from someone in prolonged disorder of consciousness (‘PDOC’).
When families and doctors are in agreement, medical staff will be able to remove feeding tubes without applying to the Court of Protection, allowing such patients to die.
Bevan Brittan acted in a pro-bono capacity on behalf of the Faculty of Intensive Care Medicine and Intensive Care Society to present submissions to the Supreme Court about the realities faced by specialist clinicians in intensive care units, and in particular about difficult decisions regarding the withdrawal of care.
Lady Justice Black, delivering judgment on behalf of the Supreme Court, said there is no distinction in law between clinically assisted nutrition and hydration (‘CANH’) and any other form of intervention. This means that decisions regarding CANH can be made on the same footing as other forms of treatment (e.g. mechanical ventilation).
Lady Black noted:
“The submissions of the Intensive Care Society and Faculty of Intensive Care Medicine are illuminating as to what occurs in units delivering critical care to patients. Most admissions to such units occur as an emergency, without the patient having made any advance decision about treatment, and possibly already so unwell that he or she has impaired consciousness or is unable to communicate wishes. Most decisions relating to medical treatment in the critical care setting, including as to whether life-sustaining treatment is withheld or withdrawn, have to be made without the participation of the patient. They are, we are told, “almost invariably taken on the basis of (in England & Wales) best interests and (in Scotland) benefit, on the basis of consensual decision-making as between the clinical team and the patient’s family and carers”. In that critical care setting, CANH is not considered differently from any other form of life-sustaining treatment. This is said to reflect “the reality in critically ill patients that it is the withdrawal of invasive or non-invasive ventilation, vasoactive medical and renal replacement therapy, and the ‘double effect’ from administration of medications to ensure patient comfort towards the end of life, that leads to the natural death of the patient, rather than cessation of CANH.” It is likely, where CANH is withdrawn from a patient who is clinically stable but suffering from a prolonged disorder of consciousness, that death will result from the withdrawal of CANH, so to this extent there is a difference between the two groups of patients. However, once CANH is seen as medical treatment, there is a parallel between the cases.”
However if, at the end of the process of decision-making, the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare, a court application can and should be made – so that the court can be asked to make this crucial decision on behalf of the patient.
Bevan Brittan partner Stuart Marchant, who was instructed by the two leading representatives of specialist clinicians, has also worked with them to produce guidance to members.