CANH withdrawal: who decides?

Published 5 November 2018

A new Supreme Court ruling means clinicians do not have to go to a judge to withdraw food and drink for people in a persistent vegetative state and other like conditions. Jo Carlowe asks, what does the ruling mean in practice?

On 30 July 2018 The Supreme Court ruled that agreements between doctors and families to stop an adult patient’s life-sustaining treatment could be implemented without court approval.

The case concerned Mr Y, a 52-year-old financial analyst, who had a ‘prolonged disorder of consciousness’ (a term encompassing permanent vegetative state and minimally conscious state). Mr Y’s family and medical team agreed it would be in his best interests for his clinically assisted nutrition to be withdrawn. The NHS trust asked the High Court to declare that it was not necessary to apply to the Court of Protection for a decision, when doctors and relatives all believe withdrawal of clinically assisted nutrition and hydration (CANH) is in the patient’s best interests. The judge agreed, but the Official Solicitor appealed on behalf of Mr Y.

Richard Gordon QC, for the Official Solicitor, argued that under common law or EU human rights laws, any case involving the withdrawal of CANH should be brought to court. The Supreme Court unanimously dismissed this argument — leading to the new ruling paving the way for the withdrawal of CANH for what the press has dubbed ‘thousands’ of people — although precise figures are not available.

Anti-euthanasia group, Care Not Killing, was quick to condemn the decision, claiming it removes “important safeguards from those without a voice”.

Implications of the decision

But is this really the case? And just what does the ruling mean in practice?

Corinne Slingo, who leads the national Healthcare Regulatory team at DAC Beachcroft, says the change is not a “licence to euthanise”, noting that, understandably, many will be unaware of the “clinical hoops” that must be jumped through before reaching the position where CANH can be lawfully withdrawn.

Indeed, in making the judgment, the Supreme Court endorsed the General Medical Council and Royal College of Physicians’ guidance on withdrawal of CANH. And in August 2018, the British Medical Association, updated its own guidance stressing that despite the new ruling: “It is still necessary to conduct a detailed assessment in accordance with RCP guidelines in order to establish the patient’s level of awareness and any trajectory towards improvement.”

“The guidelines the clinical teams must follow,” explains Slingo, “provide a safety-net to ensure the patient is protected from well-meaning relatives and healthcare professionals, who may be keen to end any perceived suffering or prolongation of care, for a relative. Such a safety-net is absolutely essential, and the threshold for taking a case before a court to approve the decision to withdraw CANH, remains low, as advised by the Supreme Court.”

“This is not euthanasia in disguise,” she adds. “Nor is it a change in the law to give relatives of patients greater legal rights than they have at present (which is that of consultees under the Mental Capacity Act in most such cases, rather than legal decision makers). This is, however, a change in the law which, in certain limited circumstances, allows clinicians and families to reach a clear consensus on withdrawing CANH, in the knowledge that doing so will, usually within a couple of weeks depending on the general health of the patient, result in the patient's death.”

Struggle between law and humanity

Most legal experts see the change as progressive. The process of making an application to court is time consuming and costly. It can take months to obtain a short hearing for approval of an order agreed between the parties.

“The waiting involved is immensely distressing to relatives who feel strongly that their loved one would never have wanted to be left in a hospital bed for weeks on end, totally dependent and, as they may see it, without dignity,” says Katie Gollop, QC, who led Great Ormond Street Hospital’s legal team in the Charlie Gard case (see box). “I did one case on a streamlined basis, and even then, it took several months to get to court. So removal of the need to apply to a judge means removal of a delay of several months.”

Certainly the ruling is likely to see savings made in both time and costs. However, the numbers of people affected could be relatively few.

The ruling does not apply to children, and is only applicable when there is full consensus that withdrawal of CANH is in the patient’s best interests. It would not, therefore, have made a difference in such high-profile cases as Charlie Gard or Alfie Evans.

“The key distinction in the Supreme Court ruling is that of consensus by all involved,” says Slingo. “For very understandable and humane reasons, there was a lack of agreement between the parents of these children and the treating clinicians, as to what was in each patient's best interests. The position remains that where there is no consensus, the court will be the final arbiter of those cases and the judiciary will have to make a decision.”

Indeed, when delivering judgment, Justice Lady Black, stated: “If, at the end of the medical process, it is apparent that the way forward is finely balanced, or 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, a court application can and should be made …This possibility of approaching a court in the event of doubts as to the best interests of the patient is an essential part of the protection of human rights.”

What’s next?

Hence, in practice the ruling may only be utilised in a few cases. Nonetheless, it is an example of how the law has evolved since 1993, when the House of Lords deemed it lawful to withdraw feeding and medical care from Hillsborough victim Tony Bland — the first case when artificial nutrition and hydration was withdrawn from a PVS patient.

“Tony Bland was a landmark case in its time, as it established the idea of PVS, the various tests (clinical and legally), and moved the law on to the place it is today,” says Slingo. “Without the Bland case, Mr Y would not have been considered at all. These evolutions on legal and ethical viewpoints in society have to evolve over time – in the same way that clinical knowledge evolves to be able to categorise PVS/MCS – the law then applies those medical advances and understanding, to shape how best to manage such patients and their prognosis.”

To discuss the issues raised in this article, please contact Corinne Slingo on +44 (0)117 918 2152 or cslingo@dacbeachcroft.com