Going to Court before withdrawing CANH? Supreme Court decides - DAC Beachcroft

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Going to Court before withdrawing CANH? Supreme Court decides

Published 30 julio 2018

Following a string of legal cases looking at when decisions about withdrawal of clinically assisted nutrition and hydration (CANH) have to be brought before the court, we now have clarification on this from the highest court in the land.

The Supreme Court has ruled in An NHS Trust v Y that - provided there is agreement about what is in the patient's best interests and provided relevant professional guidance is followed - CANH can be withdrawn from patients with prolonged disorders of consciousness (including those in PVS/MCS) without recourse to the courts.

Where does this leave clinical teams making CANH withdrawal decisions on the ground?

We look at what the Supreme Court has said and what happens next.

What was the case about?

Mr Y was an active 52 year old financial analyst until he suffered a cardiac arrest in June 2017, leaving him with severe hypoxic brain damage and a prolonged disorder of consciousness (PDOC) which meant he was unable to make any decisions for himself about his future care.

Although a formal diagnosis of PVS had not been made because Mr Y had not yet been in PDOC for 6 months, two neurological rehabilitation experts agreed that Mr Y had no awareness of self or his environment and that it was highly improbable that he would re-emerge into consciousness.

Mr Y's wife, adult children and wider family were firmly of the view that he would not wish to be kept alive in these circumstances and agreed with the clinical team that CANH should be stopped, meaning he would die within 2 to 3 weeks.

The NHS Trust involved in Y's care applied to the High Court for a declaration that it is not mandatory to bring decisions about withdrawal of CANH from PDOC patients before the court where the clinical team and family agree that it is not the patient's best interests for treatment to continue. However, the Official Solicitor - acting as Mr Y's litigation friend - resisted the Trust's application, arguing that the seriousness of all CANH withdrawal decisions means there should be court scrutiny of every case in order to protect those patients' rights.

The High Court found that there is no legal obligation to apply to the court before withdrawing CANH in circumstances such as these where everyone is in agreement about the patient's best interests. The Official Solicitor appealed against that decision direct to the Supreme Court (having been allowed to 'leapfrog' the Court of Appeal).

Mr Y sadly died from acute respiratory sepsis before the appeal was heard but, given the general importance of the issues raised by the case, it went ahead. Five Supreme Court judges heard the legal arguments in February, and they have now given their judgment.

What has the Supreme Court decided?

The Supreme Court has concluded that there is no legal obligation - either under UK common law or statute, or under European human rights law - to make an application to court in all cases before withdrawing CANH from PDOC patients.

This means that if the provisions of the MCA are followed and relevant professional guidance is observed and there is agreement on what is in the patient's best interests, CANH can be withdrawn without the need to involve the Court of Protection.

In the Supreme Court's view, it is difficult to see why CANH should be treated differently from other forms of life-sustaining treatment (e.g. artificial ventilation) or why cases involving PDOC patients should necessitate court involvement when those involving patients who are otherwise critically ill or have a degenerative neurological condition may not.

"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"

However, if - at the end of the medical process as set out in professional guidance (e.g. having involved a doctor with specialist knowledge of PDOC and obtained an independent second opinion) - it is apparent that the way forward is finely balanced, or there is a difference of medical opinion or lack of agreement to the proposed course of action from those with an interest in the patient's welfare, a court application "can and should" be made.

If the particular circumstances make it necessary or desirable to apply to the court, there should be "no reticence" in doing so.

Practical impact?

Where does this leave us in terms of when to bring a CANH withdrawal case before the court?

As now made clear by the Supreme Court, an application does not have to be made to the Court of Protection in every case before CANH is withdrawn from a PDOC patient.

What must continue to happen in every case though, is careful compliance with relevant professional guidance, including following the steps set out in the BMA/GMC/RCP interim guidance. These include:

  • Follow RCP guidance on prolonged disorders of consciousness cases, including establishing prognosis, level of awareness and trajectory of change via appropriate PDOC expertise;
  • Follow guidance on how to assess best interests (including MCA Code of Practice) - remembering that the MCA will only protect decision-makers from liability if the correct process is followed;
  • Formal best interests meetings should be held, involving those caring for the patient and those interested in his/her welfare;
  • Seek a second clinical opinion from a consultant with PDOC experience who has not been involved in the patient's care;
  • Keep a very detailed record of all discussions, best interests meetings, advice sought;
  • Prepare a detailed plan for the process of withdrawal and end-of-life care if all parties agree that it is not in the patient's best interests to continue with CANH.

It is also clear, however, that an application should still be made to the Court of Protection in any case where there is a disagreement or difference of opinion about a patient's prognosis or best interests or where "the way forward is finely balanced" (which may be the most difficult category of cases, because it is not entirely clear what sort of situation this refers to).

In practice, the message continues to be to proceed with caution and to seek legal advice if in any doubt about whether or not a court application is needed.

What next?

It is likely that references in existing professional guidance/MCA Code of Practice to needing to go to court in all cases before withdrawing CANH from PDOC patients will now need to be amended in light of this judgment.

We can also expect an updated, more in-depth version of the current BMA/GMC/RCP interim guidance on making legally and clinically robust decisions about CANH withdrawal to be published this Autumn.

Following the decision in Y, the keys steps for organisations to take will be:

  • Raising awareness of the position with in-house legal teams, ITU and neuro teams;
  • Supporting clinical teams in their understanding of the impact that the Y case may have on their day-to-day decision making, ensuring that the central importance of compliance with the MCA and professional guidance is fully understood to avoid any misconceptions that this judgment allows CANH to be withdrawn without recourse to the courts in all cases;
  • Review of policies to check that internal procedures reflect the judgment in the Y case.

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 in this area. Following this significant judgment we can support organisations in a number of ways, including:

  • Support in decision-making involving the withdrawal of CANH and advice on whether there is a need to make an application to the court in a specific case;
  • Bespoke training to clinical and in-house legal teams on the impact of the judgment and what it means for practitioners and your organisation;
  • Review of internal policy and procedures within your organisation to support effective decision-making following An NHS Trust v Y.

Authors

Corinne Slingo

Corinne Slingo

Bristol

+44 (0)117 918 2152

Paul McGough

Paul McGough

Leeds

+44 (0)113 251 4763

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