UK & Europe
On 30 July 2018 the Supreme Court handed down its decision in An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants)  UKSC 46. The case concerned the issue of whether a court order must always be obtained before clinically assisted nutrition and hydration, which in essence is keeping a person alive in a minimally conscious or vegetative state, can be withdrawn.
Briefly, Mr Y was a man in his fifties who suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage. He never regained consciousness. He required clinically assisted nutrition and hydration, provided by means of a percutaneous endoscopic gastrostomy (being a feeding tube), to keep him alive. His treating clinicians eventually concluded that he was suffering from a prolonged disorder of consciousness and that even if he were to regain consciousness, he would have profound cognitive and physical disabilities, thus rendering him dependent on others to care for him for the rest of his life. A second opinion was obtained from a consultant and professor in Neurological Rehabilitation, who considered that Mr Y had no prospect of improvement. Mr Y's family believed that in such circumstances he would not wish to be kept alive given the doctors' views about his prognosis. It was therefore agreed that it would be in Mr Y's best interests for his feeding to be withdrawn.
The NHS Trust subsequently issued an application in the High Court for a declaration that it was not mandatory to seek the Court's approval for withdrawal of feeding when the clinical team and family were in agreement that it was not in the patient's best interests that he continue to receive treatment and that no civil or criminal liability would result in such circumstances. The Official Solicitor, whose role it is to protect the interests and make decisions on behalf of those who lack capacity, such as Mr Y, was invited to act as Mr Y's litigation friend.
The case was accelerated through to the Supreme Court due to Mr Y's poor condition but he died before the case could be heard. The court nevertheless determined that the hearing should go ahead given the importance of the legal issues that needed to be resolved, and the far reaching implications of its decision on future cases.
The Official Solicitor argued that in every case court approval must be sought before feeding can be withdrawn from a person with a prolonged disorder of consciousness, thus ensuring that the patient's vulnerable position is properly safeguarded by representation through the Official Solicitor. The Official Solicitor submitted that that this requirement is derived from the common law and/or the European Convention on Human rights (ECHR). The respondents disagreed and submitted that neither the common law nor the ECHR impose a universal requirement to obtain court approval to withdraw treatment.
Lady Black, who provided the leading judgment, analysed at length the relevant case law, and concluded as follows [at 126]:
"…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, 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 [feeding] can be withdrawn. If the provisions of the [Mental Capacity Act 2005] 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. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases."
Lady Black further observed [at 125]:
"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..."
With this decision the position is now clear: where the provisions of the MCA 2005 are followed, and the treating clinicians and family are in agreement, it is permissible for life-sustaining treatment to be withdrawn without the need for an application to be made to court. However, when the issue is finally balanced, with differences in medical opinion, then in such cases an application can and should be made, as it is important and necessary that the best interests of the patient are protected.
The judgment will come as welcome news to Trusts and families alike who are facing a similar situation with potentially protracted and costly legal proceedings being avoided. The decision will empower families to make the decisions on what they consider to be in the patient's best interests with the help and guidance of the patient's treating clinicians. The decision also brings much needed clarity to doctors and families of those patients who are left in a minimally conscious or vegetative state, and recognises that there are circumstances where it is in the patient's best interests for treatment to be withdrawn.