Where medical professionals and loved ones are unanimous that it would not be in a gravely ill patient’s best interests to keep them alive by clinically assisted nutrition and hydration (CANH), they may be withdrawn without seeking permission from a judge. The Supreme Court so ruled in a ground-breaking decision.
The case concerned a formerly active man in his 50s who suffered a catastrophic cardiac arrest, resulting in brain damage. He never regained consciousness and required CANH to keep him alive. His treating physician concluded that, even if he came round, he would be gravely disabled and dependent on others for all aspects of his care. A second professional opinion concurred with that view and the man’s family believed that he would not have wished to be kept alive.
The NHS trust that bore responsibility for his care sought, and was granted, a High Court declaration that, given the unanimity of family and professional views, seeking judicial approval for the withdrawal of CANH was not mandatory. The man had subsequently died. However, given the important point of principle at stake, the Official Solicitor, who had acted in the proceedings on the man’s behalf, was granted permission to appeal directly to the Supreme Court.
In dismissing the appeal, the Court noted that the fundamental question facing a doctor, or a judge, in considering the appropriate treatment of a patient who is not able to make his or her own decisions is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. Treatment can only lawfully be given if it is in a patient’s best interests and, if a doctor carries out treatment in the reasonable belief that that is the case, he or she will be entitled to protection from liability by Section 5 of the Mental Capacity Act 2005 .
The Act specifically requires treating doctors to take account of patients’ express wishes, together with the views of his or her loved ones and the opinions of other medical professionals. The opportunity to seek judicial authority can be taken whether or not a dispute is apparent and, in the circumstances, the UK’s regulatory framework for dealing with such cases was compliant with Article 2 of the European Convention on Human Rights, which enshrines the right to life.
The Court acknowledged that decisions on whether or not a particular treatment, or the withdrawal of such treatment, is in a patient’s best interests can be finely balanced. It emphasised that, where there is a difference of medical opinion, or where there is a lack of agreement from family or others with an interest in a patient’s welfare, an application for judicial authority can and should be made.
