Text:ICLR  WLR(D) 490
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An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) (Intensive Care Society and others intervening)
2018 Feb 26, 27: July 30Baroness Hale of Richmond PSC, Lord Wilson, Lord Hodge, Lady Black JJSC, Lord Mance
Mental disorder— Incapable person— Best interests— Incapacitated person in state of prolonged disorder of consciousness in hospital— Medical professionals and family agreed that clinically assisted nutrition and hydration should be withdrawn— Whether mandatory to bring case before Court of Protection
An incapacitated person, Y, had suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage. He never regained consciousness and required clinically assisted nutrition and hydration (“CANH”) to keep him alive. Four months after the cardiac arrest his physician concluded that he was suffering from prolonged disorder of consciousness (“PDOC”) and that even if he were to regain consciousness he would have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life. A month later a second opinion was obtained from a consultant in neurological rehabilitation who considered that Y was in a vegetative state and that there was no prospect of improvement. Y’s family believed that he would not wish to be kept alive given the doctors’ views about his prognosis. The clinical team and the family agreed that it would be in Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks. The NHS Trust brought a claim under CPR Pt 8 for a declaration, inter alia, that it was not mandatory to bring before the Court of Protection the withdrawal of CANH in circumstances where the clinical team and the patient’s family were agreed that it was not in his best interests to continue to receive that treatment. The Official Solicitor resisted the claim, submitting inter alia that the seriousness of all cases concerning withdrawal of CANH from persons who lacked capacity required that they should be brought before the court. The judge declared that, in the circumstances of Y’s case, it was not mandatory to bring before the Court of Protection the issue of the withdrawal of CANH from Y. The judge gave the Official Solicitor permission to appeal and certified the case as appropriate for an appeal directly to the Supreme Court. Before the appeal could be heard Y died and his family withdrew from the proceedings.
On hearing the Official Solicitor’s appeal—
Held. Appeal dismissed. There was no requirement under the common law that an application should be made to the court in every case where CANH was to be withdrawn and the provisions of the Mental Capacity Act 1995 had not affected the common law position. The provisions of the 1995 Act, the Code of Practice made pursuant to that Act and the guidance issued by the General Medical Council protected the human rights of PDOC patients and their families without recourse to the courts in circumstances where medical professionals and families were in agreement about withdrawal of CANH. If there was no such agreement, the case had inevitably to be put before the court. However, where the provisions of the 2005 Act had been followed, the relevant guidance observed and there was agreement that withdrawal would be in the best interests of the patient, CANH could be withdrawn from PDOC patients without an application to the Court of Protection (paras 93–95, 96, 101–102, 105, 107, 113, 119, 121, 124–126).
Per curiam. The opportunity to involve the court was available whether or not a dispute was apparent. It was of particular benefit where the decision was a finely balanced one. There should be no reticence about involving the court in cases where it was felt that such assistance would be valuable (paras 109, 126).
Airedale NHS Trust v Bland!, CA and HL(E) and Aintree University Hospitals NHS Foundation Trust v James !; !, SC(E) applied.
R (Burke) v General Medical Council (Official Solicitor intervening)!; !, CA and In re M (Incapacitated Person: Withdrawal of Treatment) !; ! approved, approved.
In re F (Mental Patient: Sterilisation)!, HL(E); Burke v United Kingdom CE:ECHR:2006:0711DEC001980706 and Lambert v France CE:ECHR:2015:0605JUD004604314; 62 EHRR 2; 38 BHRC 709, GC considered. Richard Gordon QC and Fiona Paterson (instructed by Official Solicitor) for Y.
Vikram Sachdeva QC and Catherine Dobson (instructed by Hempsons Solicitors, Manchester) for the NHS Trust.
Vikram Sachdeva QC and Catherine Dobson (instructed by Bindmans) for the clinical commissioning group.
Alexander Ruck Keene and Annabel Lee (instructed by Bevan Brittan LLP) for the Intensive Care Society and the Faculty of Intensive Care Medicine, intervening by written submission only.
Katharine Scott (instructed by Capital Law LLP) for the British Medical Association, intervening by written submission only.
Charles Foster (instructed by Barlow Robbins, Guildford) for Care not Killing, intervening by written submission only.
Reported by: Ms B L Scully, Barrister.