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Apply to court

In clinical practice, decisions relating to adults who lack capacity are ubiquitous, both to relation to the need for new treatment, and concerning current management that is no longer in the best interests of the patient. Some of these decisions can only be taken by a court. For example, the performance of an elective non therapeutic sterilisation on an incapacitated adult is considered such an affront to that person’s human right (to a family life) that in the United Kingdom, surgeons are not permitted to perform this operation without first seeking a court’s permission.

Since the case of Tony Bland, a survivor of the Hillsborough stadium disaster, the question of whether a patient who is in a persistent vegetative state can have their clinical artificial nutrition and hydration (CANH) withdrawn has also (as a matter of practice) been referred to court.

It should be clearly understood that neither non-therapeutic sterilisation nor withholding CANH are inherently unlawful activities; both could be legitimised by the consent of an adult with capacity. It is only in cases where the patient lacks capacity that an application to a court is required. In neither example above is the question for the court is whether the activity is lawful. The court has no power to render lawful something that without the court’s sanction would be unlawful. Rather, the question for the court is whether the non-therapeutic sterilisation, or the withdrawal of CANH, is in the best interests of the incapacitated patient.

Two recent cases have caused courts to consider whether, when there is no disagreement about the decision to withdraw CANH, referral to court is any longer required.

In 'Re M', all those concerned with a woman (who was in a minimally conscious state as a result of Huntingdon’s disease) felt that her CANH should be withdrawn, but nevertheless felt that an ‘external’ decision should be taken. Since there was no dispute between clinicians and the family as to the best interests of the patient, the judge decided that on the facts of Mrs M’s case, there was no legal requirement for the decision to withdraw CANH to be taken by the court. In the report of Mrs M’s case, the (1993) Bland judgement was cited, one of the judges noting that ‘…at least for the time being and until a body of experience and practice had been built up…. applications in every case as a matter of routine should be made’. The decision in Mrs M’s case may reflect the contemporary court’s view that in 2017, this body of experience is now established.

In the case of Mr Y, a 52 year old investment banker who suffered very severe brain damage after a 10 minute cardiac standstill secondary to occlusive coronary artery disease, the clinical team and his family agreed that it was not in his best interest to continue to receive treatment. Neurological experts agreed that he had no awareness of self or his environment, and that it was ‘highly improbable’ that he would regain consciousness.

The Trust looking after Mr Y was supported by his wife in seeking a declaration that there was no  mandatory requirement to seek consent to withdraw CANH from a court; in circumstances when there is no dispute between clinicians and family as to the  incapacitated patient’s best interests.

The Official Solicitor, appointed to represent Mr Y submitted that there was a common law obligation to ensure that Mr Y’s right to life was not infringed; and to provide independent scrutiny of the decision.

The High Court found that the previous decided cases in the common law did not establish a principle that all instances concerning the proposed withdrawal of CANH from a person who lacks capacity must be sanctioned by a court. Where clinicians have followed the Mental Capacity Act 2005 and good medical practice, and there is no dispute with the patient’s family, or anyone else interested in his welfare, there is no requirement to bring the matter before a court.

Although this judgement continues a recent trend, we must await the view of the Supreme Court; the High Court took steps to launch and expedite the appeal process.

If the Supreme Court agrees to consider the case, the circumstances in which decisions to withdraw CANH (and other life-sustaining treatments) should be brought to the court will be reviewed. This may significantly change the law that governs decision-making for incapacitated patients.

Such a change would have a tangible influence on how cases (where clinicians and families are in agreement as to where the patient’s best interests) lie are resolved.

Robert Wheeler

Department of clinical law, December 2017