Case Summary: An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant) [2018] UKSC 46

Case

An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant) [2018] UKSC 46

Relevant Topics

• Prolonged disorders of consciousness ("PDOC")
• Whether a court order must always be obtained before clinically assisted nutrition and hydration (“CANH”), which is keeping a person with a PDOC alive, can be withdrawn, or whether, in some circumstances, this can occur without court involvement.

Practical Impact

• Following previous cases in the Court of Protection, the Supreme Court has now given a definitive ruling that where

  1. the provisions of the Mental Capacity Act 2005 are followed; and
  2. the relevant guidance (currently the joint guidance by the BMA, GMC and RCP – see here) is observed; and
  3. there is agreement upon what is in the best interests of the patient,

  life-sustaining treatment (whether CANH or another form of such treatment such as vasopressors or mechanical ventilation) can be  withdrawn (or withheld) without needing to make an application to the court.

• CANH is medical treatment and can be treated the same as other forms of life-sustaining treatment. Patient's in PDOC can be treated the same as other patients for whom judicial involvement in end of life decisions is not required where there is agreement between the clinicians and family.  In all cases, the medical team make their treatment decisions by determining what is in the patient’s best interest.

• If it transpires that the way forward is finely balanced, there is a difference of medical opinion, or a lack of agreement from persons with an interest in the patient’s welfare, a court application can and should be made.

  See commentary to linked cases by Bevan Brittan at:

  M -v- A Hospital [2017] EWCOP 19
  NHS Trust -v- Y [2017] EWHC 2866 (QB) https://www.bevanbrittan.com/insights/articles/2017/case-summary-m-v-a-hospital-2017-ewcop-19-and-nhs-trust-v-y-2017-ewhc-2866-qb/

  Briggs v Briggs [2017] EWCA Civ 1169
  https://www.bevanbrittan.com/insights/articles/2017/case-summary-briggs-v-briggs/

Summary

Lady Black, delivering judgment on behalf of the Supreme Court, concluded in clear terms that there was no requirement either at common law or under the ECHR for court approval to be sought when withdrawing treatment from a PDOC patient.

The ruling also answers the wider 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. By deciding that there is no distinction in law between CANH and any other form of intervention, the Supreme Court judgment means that decisions regarding CANH are to be made on the same footing as other forms of treatment (i.e. mechanical ventilation or vasopressors).

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 particular about difficult decisions regarding the withdrawal of care.

The NHS Trust responsible for the care Y, man in a minimally conscious state ("MCS") whom both the family and treating team agreed should no longer receive CANH, went to the High Court to get a declaration that it did not need to approach the Court of Protection for endorsement of this position. 

The High Court ruled that the Trust, as a matter of law, was not required to seek approval from the Court of Protection where the decision to withdraw CANH was an agreed one.  The Official Solicitor, acting as Y’s litigation friend, appealed and the case was ‘leapfrogged’ to the Supreme Court.  Even though Y had died by the time the case was heard by the Supreme Court, the Supreme Court nonetheless determined the appeal should go ahead because of the general importance of the issues raised.

As per the Supreme Court's summary of the case:

(References in square brackets are to paragraphs in the judgment, which can be seen in full here)

It has not been established that the common law or the European Convention on Human Rights ("ECHR") give rise to the mandatory requirement to involve the court to decide upon the best interest of every patient with PDOC before CANH can be withdrawn [126].

The fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patient’s best interests. If a doctor carries out treatment in the reasonable belief that it will be in the patient’s best interests, he or she will be entitled to the protection from liability conferred by section 5 of the Mental Capacity Act
(“MCA”) 2005 [92].

The starting point on whether there is a common law requirement to seek a court order is the House of Lords decision in Airedale NHS Trust v Bland [1993] A.C. 789. However, there can be no question of the House of Lords in that case having imposed a legal requirement that in all cases of patients in a persistent vegetative state an application must be made to court before CANH can be withdrawn. Instead they
“recommended… as a matter of good practice” that reference be made to the court [93-94]. Therefore, when the MCA 2005 came into force in 2007 there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH and the MCA itself did not single out any class of decisions which must always be placed before the court [95].

The MCA 2005 Code of Practice (the “Code”) does speak of applications to court in cases such as the present but does so in a contradictory fashion on the issue of whether such applications are mandatory [97].  Further, no requirement to apply to court can be found in the post-MCA 2005 case-law [98].

The ECHR does not generate a need for an equivalent provision to be introduced [102]. The European Court of Human Rights’ ("ECtHR") decision in Lambert v France 62 EHRR 2 and subsequent cases have repeatedly set out factors relevant to the administering or withdrawing of medical treatment. These are factors which the UK has complied with. First, the UK has a regulatory framework compatible with the requirements of article 2 in the form of the combined effect of the MCA 2005, the Code, and professional guidance, particularly that of the GMC [105]. Second, the MCA 2005 requires doctors to take into account the patient’s express wishes and those of people close to him, as well as the opinions of other medical personnel [108]. Third, the opportunity to involve the court is available whether or not a dispute is apparent [109].

Lambert and subsequent decisions show that the ECtHR does not regard it as problematic, in principle, that a decision to remove CANH from a patient with PDOC should be made by a doctor without obligatory court involvement [110].

CANH is medical treatment and it is not easy to explain, therefore, why it should be treated differently from other forms of life-sustaining treatment [116]. In any event, it is difficult to accept that one can delineate patients with PDOC from other patients in such a way as to justify judicial involvement being required for the PDOC patients but not the others. In all cases, the medical team make their treatment decisions by determining what is in the patient’s best interest [119].

If it transpires that the way forward is finely balanced, there is a difference of medical opinion, or a lack of agreement from persons with an interest in the patient’s welfare, a court application can and should be made [125].