Withdrawal of life-sustaining hydration and nutrition: when should the courts be involved? The last year has seen some significant cases on withdrawal of life-sustaining hydration and nutrition play out in our legal system. This week the Supreme Court dealt with when the courts should be involved in such decisions, delivering its judgment in the case of An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) Mr Y Mr Y suffered a cardiac arrest, following which he never regained consciousness, and required clinically assisted nutrition and hydration (CANH). He was diagnosed as having a ‘prolonged disorder of consciousness’ (PDOC). His treating physician and the consultant from whom a second opinion was obtained both considered that his condition was unlikely ever to improve. His wife and their children believed that he would not want to be kept alive under these circumstances. Together with Mr Y’s doctors they decided that it was in his best interests to withdraw CANH. The role of the courts In cases like this, there has been some uncertainty as to whether it is mandatory for a court order to be obtained before CANH is withdrawn. Whilst an order is required where there is doubt or disagreement about whether to withdraw CANH, it has not been clear whether there is a legal requirement to seek an order even in cases where the medical team and the patient’s family are certain that withdrawal is in the patient’s best interests. The NHS Trust applied to the court for a declaration that a court order was not mandatory, and that no liability would result from the decision to withdraw CANH. Sadly, although CANH was continued throughout the litigation, Mr Y died before the Supreme Court hearing. Given the importance of the question, however, the Supreme Court proceeded to hear the appeal. Lady Black gave the opinion of the unanimous court, finding that there was no mandatory requirement to seek a court order to withdraw CANH from a patient with PDOC in every case. The Official Solicitor: arguing for a court order The Official Solicitor had argued that an order was mandatory, regardless of whether the patient’s family and medical team agreed. His argument was based on both domestic law and human rights law. He argued that ‘only by requiring judicial scrutiny in every case concerning the withdrawal of CANH from a patient suffering from PDOC can human life and dignity be properly safeguarded’. The Supreme Court decision: human rights law does not require mandatory orders The Supreme Court rejected the argument that a mandatory court order was required under either domestic law or human rights law. With regard to domestic law, the court found that there was nothing in the legislative framework or in any prior court decisions which made application to the court mandatory. The court emphasised that CANH is a form of treatment, and it is unlawful to give or continue to give treatment that is not in a patient’s best interests. This meant that, where it is obvious to all involved that continuing treatment is not in their best interests, there is no need to apply to the court for an order declaring this: in fact, to do so would delay matters and allow a clearly unlawful state of affairs to continue. Lady Black emphasised, however, that it will usually be best practice to apply for an order, even though it is not mandatory. With regard to the human rights argument, the court determined that there were sufficient safeguards in place to protect patients’ life and dignity without making it mandatory to seek a court order. In particular: The Mental Capacity Act 2005, its accompanying Code of Practice, and the guidance issued to practitioners (especially the GMC guidance) together create a sufficient ‘regulatory framework’ capable of guiding decision-making in this area. This framework complies with the requirements of the right to life (Article 2 HRA/ECHR), because it makes it clear that a decision to withdraw CANH should not be taken unless it is in the patient’s best interests. It also gives guidance about how to determine what the patient’s best interests are. The process of determining best interests includes mandatory consideration of the patient’s previously expressed wishes and feelings, those of their family and people close to them, and the opinions of medical personnel. This is a key part of ensuring compliance with the right to respect for private life, particularly around choice. It is possible – and in fact positively encouraged – to approach the court for an order if any doubt exists. The human cost and policy implications Lady Black also went on to consider some of the policy implications of requiring court orders in cases of CANH withdrawal where there was consensus of opinion that withdrawal is in the patient’s best interests. Not only would this put pressure on both court and NHS resources, it would also result in lengthy delays which are expensive, stressful, and emotionally taxing for the patient’s family. As Lady Black put it: ‘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’. Mr Y’s case itself powerfully demonstrates this: during what turned out to be Mr Y’s final days, his family were embroiled in legal proceedings which did not even arise out of any disagreement between them and Mr Y’s medical team. Safeguarding people’s human rights The court also noted that, if court orders were mandatory in all cases, ‘there is a risk that the need to go to court might deflect clinicians and families from making true best interests decisions and might lead in some cases to inappropriate treatment continuing by default’. This is an important point. Decision-making within the human rights framework involves multiple actors, and decisions must be taken carefully and with due consideration. It is important for everyone involved – whether that’s the patient’s family and loved ones, their advocate, or the medical team – to take ownership over this process and be involved in it fully. Otherwise decisions can be rushed, or made without considering every aspect. It should be emphasised that this case does not decide that CANH can be withdrawn from patients by doctors acting alone, or on a whim. The court was clear that ‘there will undoubtedly be cases in which an application [to the court] will be required (or desirable) because of particular circumstances’, and that where that is the case there should be no hesitance to make such an application. As Lady Black put it: ‘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.’ Future implications What this case has decided is that where, after following the correct decision-making procedures, it is clear to all involved, without disagreement or difference of opinion, that withdrawing CANH from a patient with PDOC is in their best interests, there is no mandatory requirement to make an application to the court. This means there is no requirement to prolong treatment which is clearly not in their best interests. For practical information, get your copy of our End of Life Care and Human Rights: Practitioners Guide here, developed with the support of Sue Ryder.