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On 30 July 2018, the Supreme Court gave an important judgment in relation to whether it glasson_j_145617_bw_indmemwas always necessary to go to court to approve the withdrawal of treatment for someone who was in a prolonged state of unconsciousness. After an exhaustive review of the authorities, starting with the landmark judgments of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC and Airedale NHS Trust v Bland [1993] AC 789, as well as a detailed consideration of the statutory scheme under the Mental Capacity Act 2005 and guidance from BMA/GMC/RCP,  Lady Black (with whom the other Justices all agreed[1]) concluded that neither the common law nor the ECHR required such an application to be invariably made.

In An NHS Trust v Y  [2018] UKSC 46; [2018] 3 WLR 751, a leap-frog appeal from the judgment of O’Farrell J in the Queen’s Bench Division:  [2017] EWHC 2866 (QB), 4 WLR 222,  the single issue in the appeal was whether a court order must always be obtained before clinically assisted nutrition and hydration (“CANH”), which is keeping a person with a prolonged disorder of consciousness (“PDOC”) alive, can be withdrawn, or whether, in some circumstances, this can occur without court involvement.

The factual background

In June 2017 Y, a man in his fifties, suffered a cardiac arrest which consequently led to extensive brain damage caused by a lack of oxygen. Sadly, Y never regained consciousness following the cardiac arrest and required CANH to keep him alive. Y’s 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 the rest of his life. A second opinion concluded that Y was in a vegetative state and that there was no prospect of improvement. Y’s wife and his children believed that Y 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 The clinical team and the family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.

On 1 November 2017, the NHS Trust sought a declaration in the High Court that it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patient’s family agreed that it was not in the patient’s best interests to continue treatment and that no civil or criminal liability would result if CANH were withdrawn.  The NHS Trust applied to the Queen’s Bench Division thereby avoiding any suggestion that it accepted the necessity for the Court of Protection to adjudicate upon the decision.  O’Farrell J concluded (at para 52 of her judgment): “where the clinicians have followed the Mental Capacity Act and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court.”

The judge granted permission to appeal directly to the Supreme Court given the importance of the issue.   In the intervening period Y died but the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised by the case.  The family of Y took no part in the appeal before the Supreme Court and the case was argued by counsel instructed by the Official Solicitor and by the NHS Trust.

The arguments on appeal

The Official Solicitor submitted that, in every case, court approval must be sought before CANH can be withdrawn from a person with PDOC, thus ensuring that the patient’s vulnerable position is properly safeguarded by representation through the Official Solicitor, who can obtain independent expert medical reports about his condition and prognosis, and make submissions to the court on his behalf if appropriate. The Official Solicitor argued that this was a requirement of the common law and/or the ECHR, in particular arts 2 and 6. The Official Solicitor argued that his position found support in the Mental Capacity Act Code of Practice, issued on 23 April 2007 pursuant to the Mental Capacity Act 2005, s 42(1) . He submitted that it was irrelevant that neither the 2005 Act nor the Court of Protection Rules specifically impose the requirement for which he contended. The respondents disagreed, submitting that neither the common law nor the Convention imposed a universal requirement to obtain court approval prior to the withdrawal of CANH.

Lady Black’s judgment

Lady Black extensively reviewed the authorities, beginning with the landmark judgments of the House of Lords in   In re F (Mental Patient: Sterilisation) [1990] 2 AC and Airedale NHS Trust v Bland [1993] AC 789.    In Bland the view was strongly expressed that questions of the withdrawal of treatment should be routinely brought before the High Court until a sufficient body of experience had been built up: at Lord Keith said at p.859:

“The decision whether or not the continued treatment and care of a PVS patient confers any benefit on him is essentially one for the practitioners in charge of his case. The question is whether any decision that it does not and that the treatment and care should therefore be discontinued should as a matter of routine be brought before the Family Division for endorsement or the reverse. The view taken by the President of the Family Division and the Court of Appeal was that it should, at least for the time being and until a body of experience and practice has been built up which might obviate the need for application in every case. As Sir Thomas Bingham MR said, this would be in the interests of the protection of patients, the protection of doctors, the reassurance of the patients’ families and the reassurance of the public. I respectfully agree that these considerations render desirable the practice of application.”

The question therefore was whether there was now a sufficient body of experience and practice and whether the Code of Practice issued under the Mental Capacity Act 2005 and professional guidance offered sufficient protection for the purposes of the common law as well as of the ECHR.

In relation to the ECHR arguments, Lady Black noted that Lambert v France (App No. 46043/14) (2016) 62 EHRR 2, demonstrated that the ECtHR did not regard it as problematic, in principle, that a decision to withhold or withdraw CANH from a patient with PDOC should be made by a doctor, without obligatory court involvement.  Moreover, in Burke v United Kingdom (App No.19807/0) 11 July 2006, the argument that there was insufficient protection of art 2 rights because a doctor might decide to withdraw CANH without being under an obligation to obtain the approval of the court was expressly rejected.  Lady Black rejected the analogy that the Official Solicitor had sought to draw between someone in Y’s position and a person with capacity who sought assistance in bringing his or her life to an end. In her judgment, there was a critical distinction in both the domestic and the Strasbourg jurisprudence between an act which constituted the intentional taking of life and therapeutic abstention from treatment.

Having reviewed the authorities, the Code of Practice and the relevant professional guidance, Lady Black observed (at para 91 of her judgment):

“Permeating the determination of the issue that arises in this case must be a full recognition of the value of human life, and of the respect in which it must be held. No life is to be relinquished easily. As Baroness Hale DPSC said in Aintree University Hospitals NHS Foundation Trust v James [2014] AC 591 , para 35: “The authorities are all agreed that the starting point is a strong presumption that it is in a person’s best interests to stay alive.” And yet there may come a time when life has to be relinquished because that is in the best interests of the patient. The situation of Mr Y, and the ordeal through which his family has been going, serve as a solemn reminder of how illness may confront any one of us at any time and of the difficulties that face the patient, his family, and the medical staff whose job it is to do the best that they can for them. As Lord Browne-Wilkinson said in the Bland case [1993] AC 789 , 877, the questions for us are questions of law, “[but] behind the questions of law lie moral, ethical, medical and practical issues of fundamental importance to society”. The weight of that consideration anchors the legal decisions which I would make.”

Lady Black entered a strong note of caution as to how a court should approach the issues in the case. At para 115 of her judgment Lady Black said:

“It remains to stand back from this intense focus upon the law, in order to consider the issue in its wider setting. In so doing, it is necessary to exercise the restraint that is required of a court when it ventures into areas of social and ethical uncertainty, and especially when it does so in the abstract, setting out views which will be of general application (as is necessarily so in this case) rather than resolving a clearly defined issue of law or fact that has arisen between the litigants appearing before it. Lord Goff remarked, in the passage of the Bland case [1993] AC 789 , 871 which I have set out at para 22 above, upon how frequently doctors have to make decisions which may affect the continued survival of their patients, and how experienced they are in this respect. Judges have also developed experience in dealing with life and death decisions, but it is experience of a different sort from that of the medical team which actually treats the patient, and of the professional bodies responsible for regulating and guiding them, and this limitation must be recognised and taken into account.”

Lady Black endorsed (at para 121) the observation of King LJ in In re Briggs [2018] Fam 63 that, quite apart from the pressure that court cases place on the overstretched resources of NHS trusts, they add greatly to the strain on families facing acutely distressing decisions. “In a case where all the proper procedures have been observed and there is no doubt about what is in the best interests of the patient, there is much to be said for enabling the family and the patient to spend their last days together without the burden and distraction, and possibly expense, of court proceedings.”

Lady Black concluded that

“[H]aving 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 Convention, 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 CANH can be withdrawn. If the provisions of the 2005 Act 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.”

Comment

The Supreme Court’s decision makes the position clear in relation to the issue before the Court. Nonetheless Lady Black left open the possibility of applications in cases where the way forward is deemed to be finely balanced or where 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.

[1] Baroness Hale of Richmond PSC , Lord Wilson , Lord Hodge and Lord Mance JJSC