People in a persistent vegetative state can have their clinically assisted nutrition and hydration (“CANH”) withdrawn without a court order, the UK Supreme Court ruled today in an appeal from the High Court in England & Wales.
Five judges unanimously affirmed a ruling that that it was not mandatory to seek the court’s approval when the clinical team and the patient’s family were agreed that it was not in the patient’s best interests to continue treatment.
The case concerned a man referred to as Mr Y, who in June 2017, as an active man in his 50s, suffered a cardiac arrest which consequently led to extensive brain damage due to lack of oxygen. He never regained consciousness and required CANH to keep him alive. His treating physician concluded that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remaining life. A second opinion from a consultant and professor in neurological rehabilitation considered Mr Y to be in a vegetative state without prospect of improvement. Mrs Y and their children believed that he would not wish to be kept alive given the doctors’ views, and agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.
On an application by the NHS trust concerned, the High Court granted a declaration that court approval was not mandatory in these circumstances. The judge granted permission to the Official Solicitor, representing Mr Y’s interests, to appeal directly to the Supreme Court. Mr Y died in the intervening period, but the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised.
Lady Black, with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed, said it had not been established that either the common law or the European Convention on Human Rights gave rise to the mandatory requirement to involve the court to decide on the best interest of every patient with prolonged disorder of consciousness (PDOC) before CANH could be withdrawn. The fundamental question facing a doctor, or a court, considering treatment of a patient who was not able to make his or her own decision was not whether it was lawful to withdraw or withhold treatment, but whether it was lawful to give it. It was lawful to give treatment only if it was in the patient’s best interests. If a doctor carried out treatment in the reasonable belief that it would be in the patient’s best interests, he or she would be entitled to the protection from liability conferred by s 5 of the Mental Capacity Act 2005.
The starting point on whether there was a common law requirement to seek a court order was the House of Lords decision in Airedale NHS Trust v Bland  AC 789. However, there was no question of that case having imposed a legal requirement that in all cases of patients in a persistent vegetative state an application had to be made to court before CANH could be withdrawn. Instead it "recommended… as a matter of good practice" that reference be made to the court. Therefore, when the 2005 Act came into force there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH and the Act itself did not single out any class of decisions which had always to be placed before the court. Nor could any requirement be found in the case law since.
The ECHR did not generate a need for an equivalent provision. The European Court of Human Rights’ decision in Lambert v France 62 EHRR 2 and subsequent cases had repeatedly set out factors relevant to the administering or withdrawing of medical treatment. These were factors which the UK had complied with. The case law showed that the court did 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. CANH was medical treatment, and it was not easy to explain why it should be treated differently from other forms of life-sustaining treatment. In any event, it was difficult to accept that one could 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 made their treatment decisions by determining what was in the patient’s best interest.
Lady Black added: "If, at the end of the medical process, it is apparent that 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."