The latest on when you need to go to Court before withdrawing treatment
Published 20 September 2017
A common dilemma for those making decisions about withdrawal of treatment is whether to involve the Court of Protection.
The generally accepted position until recently was that decisions about withdrawal of clinically assisted nutrition and hydration (CANH) from patients in PVS or MCS should always - as a matter of good practice - be brought before the Court of Protection. Significantly, the Court of Protection Practice Direction relating to serious medical treatment provides that such cases 'should' be brought to Court.
According to the recent case of M (Withdrawal of Treatment: Need for Proceedings), however, there is no obligation to involve the Court where everyone is in agreement about what is in the patient's best interests.
We look at the impact of this case and what the future holds for withdrawal of treatment decision-making.
What was the case about?
The patient ('M') had end-stage Huntingdon's disease. She had been dependent on CANH via PEG tube for many years. By the time the case came before the Court, she had not been showing any signs of awareness for about 18 months.
All those involved - including M's family, her treating clinicians and an external specialist asked to give a second opinion - were in agreement that withdrawal of CANH would be in M's best interests. However, in line with the Practice Direction, the Court of Protection was asked to decide whether it was in M's best interests for CANH to be stopped.
Having heard the evidence (including the view of M's mother that she would not have wanted to go on living as she was), the Court agreed that it would be in M's best interests for treatment to be withdrawn. CANH was subsequently withdrawn and M has sadly since died.
Given that there was no dispute about best interests in this case, however, the Judge was asked to give guidance on whether it had been necessary to bring the case to Court in the first place.
What did the Court decide?
The Court recognised that the question of whether a Court application is or should remain a legal requirement has come under scrutiny recently, as follows:
- Change to Practice Directions - As part of forthcoming updates/amendment to the rules governing the Court of Protection, the 'Rules Committee' has recommended removing the current Practice Direction on this issue. Instead, what is being proposed is for a working group to produce national guidance on which cases should and should not go to Court.
- Briggs - The Court of Appeal said in the recent case of Briggs that, where there is no doubt or dispute about best interests, a decision to withdraw treatment from a PVS/MCS patient can be made by the treating team under the usual Mental Capacity Act provisions without there being any legal obligation to involve the Court. Although these comments were not legally binding (because this was not the central point in the case), they helped open the way for the decision in 'M'.
The Official Solicitor (who frequently represents the interests of adults lacking capacity in Court of Protection cases) argued in 'M' that an application to Court should be made in every case of proposed withdrawal of CANH. Reasons given included, for example, the need to guard against the possibility of incorrect diagnosis and prognosis.
In the Judge's view, however:
- there is no reason why decisions about withdrawal of treatment from PVS/MCS patients cannot be taken in the same way as other life-and-death treatment decisions being made all the time by clinicians/families working together;
- the deterrent effect of costly, time-consuming court proceedings could lead to inappropriate treatment continuing by default.
He therefore concluded that there is no legal requirement for withdrawal of CANH decisions for PVS/MCS patients to be brought before the Court of Protection.
This means that, as long as decisions are reached in accordance with the relevant professional guidance (taking account of the importance of structured medical assessment in PVS/MCS cases and the need for expert second opinions) and in line with the usual MCA best interests provisions, they will be lawful.
Where does this leave clinicians making decisions about withdrawal of CANH for PVS/MCS patients who need to feel they are on solid legal ground?
Pending the development of further guidance as recommended by the Court of Protection Rules Committee, matters are currently in something of a state of flux. Whilst the M case means that there is no requirement to make an application to Court for all PVS/MCS CANH withdrawal cases, what is less clear is when it is still good practice to do so.
The question of whether there is 'doubt' or 'dispute' about a plan to withdraw may not always be clear-cut.
It will therefore be important to keep in mind the Judge's caveat to his decision - "...every case is intensely fact-specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to be right to do so".
How we can help
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:
- Serious medical treatment cases - including advice on whether an application needs to be made to the Court of Protection;
- Interface between the Mental Capacity Act and Mental Health Act;
- Court of Protection welfare applications relating to care and/or accommodation;
- Section 21A challenges to DoLS authorisations;
- Responding to Orders for Section 49 reports, including advice on effective report preparation.
We can also provide bespoke training in relation to all aspects of Court of Protection proceedings.
If you need advice in relation to a withdrawal of treatment case or other Court of Protection matter, please contact Gillian Weatherill on: +44(0)191 4044045 or firstname.lastname@example.org.