Legal update for Caldicott Guardians training by DAC Beachcroft LLP
What is covered? The legal and ethical framework affecting Caldicott Guardians is rapidly evolving and increasingly complex…
Published 11 December 2017
Following a flurry of recent court decisions, the British Medical Association, General Medical Council and Royal College of Physicians have jointly issued interim guidance on the withdrawal of clinically-assisted nutrition and hydration (CANH) from patients in permanent vegetative state (PVS) or minimally conscious state (MCS) following sudden-onset profound brain injury.
Reflecting the current case law position, the interim guidance says there is no obligation to go to court for approval before withdrawing CANH from a patient who is in PVS or MCS if there is agreement about this being in the patient's best interests.
Importantly, however, the interim guidance also sets out the steps clinicians must take to ensure their decision-making is clinically and legally robust.
The interim guidance rightly recognises that some cases should still be brought before the court, including those where there is disagreement about the patient's prognosis or best interests, or the decision is finely balanced. The law in this area could soon change and, with that in mind, the interim guidance reminds decision-makers that they may well wish to seek legal advice as to whether a court application is required in any particular case.
We look at the key points to be aware of.
The High Court recently confirmed in the case of NHS Trust v Y that there is no legal obligation to go to the Court of Protection for approval before withdrawing CANH from patients in PVS/MCS where there is agreement between the clinical team and the family that it would not be in the patient's best interests to continue and where all the requirements of the Mental Capacity Act (MCA) and good clinical practice have been followed. The Y case may well go on to be heard by the Supreme Court on appeal but - for now at least - this is the legal position.
This reflects what the Court of Protection has said recently on the same issue (Briggs and Re M).
The publication of this interim guidance also ties in with the withdrawal of the Court of Protection Practice Direction about serious medical treatment cases (Practice Direction 9E), which had said that cases involving the proposed withdrawal of CANH from patients in PVS/MCS 'should' be brought before the court. As of 1 December 2017, that Practice Direction no longer applies.
The interim guidance seeks to plug the gap in terms of where all this leaves clinicians by setting out the steps which must be followed to ensure legally robust decision-making in the absence of an application to the Court of Protection.
Importantly, the interim guidance only covers withdrawal of CANH for patients in PVS/MCS following sudden-onset brain injury. No other cases are captured by the interim guidance.
The guidance emphasises that - as with all decision-making relating to patients who lack capacity - decisions must be based on an assessment of what is in the patient's best interests.
If there is any disagreement about the patient's prognosis or best interests, or the decision is finely balanced, the position remains that an application should be made to the Court of Protection for a declaration as to whether continuing CANH is in the patient's best interests.
Where there is no dispute, however, the interim guidance advises that the clinical team can lawfully withhold or withdraw CANH on the basis of their own determination (reached after proper consultation) as to what is in the person's best interests - i.e. without first going to court.
This is subject to the important caveat that (as with any best interests decision-making) the requirements of the MCA must be met and existing professional guidance followed.
To help clinicians with this, the interim guidance sets out a number of recommended steps to ensure legally robust decision-making.
There are 15 recommended steps in total and this briefing does not attempt to list them all (there is no substitute for consulting the guidance directly), but they include:
Reflecting the potential for the law on this to change if an appeal to the Supreme Court in the Y case were to be successful, the interim guidance also suggests that Trusts may well wish to seek legal advice as to whether a court application is required in any particular case.
The BMA says we can expect the full guidance on this in May 2018.
Our national team of Mental Capacity Act and Court of Protection specialists have extensive experience of advising commissioners and providers across the health and social care sector.
We provide responsive, practical advice on all aspects of the law in this area, including:
We can also provide bespoke training in relation to all aspects of Court of Protection proceedings.