No need for court order for withdrawal of nutrition in case of PVS patients – Supreme Court

2 August 2018 by Rajkiran Barhey

NHS Trust v Y (by his litigation friend, the Official Solicitor) and Others, Supreme Court 30 July 2018 – read judgment

The question for the Court was a simple but important one: whether the permission of a court was always required by law before doctors could withdraw feeding from a person in a persistent vegetative state.

Background

The patient at the heart of this case, known only as Y, had been an active man in his 50s before suffering a cardiac arrest which led to severe brain damage. He never regained consciousness and needed to be fed through a tube (known technically as “clinically assisted nutrition and hydration” or “CANH”) to stay alive.

Doctors had determined that Y was suffering from a “prolonged disorder of consciousness”known as “PDOC”.PDOC covers those who are in a persistent vegetative state and also those in a minimally conscious state, what we might informally call a coma.

Y’s family agreed with the doctors that CANH ought to be withdrawn. The NHS then brought a claim in the High Court for a declaration that it was not mandatory for the court to approve the withdrawal of CANH from a patient with PDOC where the doctors and the family agreed that it was in the patient’s best interests.

The High Court judge agreed that permission was not necessary in every case. This decision was appealed and due to its public importance, the case was fast-tracked to the Supreme Court. As Y did not have the capacity to litigate, he was represented by the Official Solicitor.

Sadly, Y died before the case was heard.

The judgment

The judgment was delivered by Lady Black, with whom the other four members of the court agreed. The judgment splits neatly into two halves – the first considering domestic law, and the second considering ECHR law.

Domestic law

Lady Black concluded that there was no requirement to seek a court order for the removal of CANH from a patient suffering from PDOC where there was no dispute that it was in that patient’s best interests. She based this decision on an extensive review of the cases and law in this area which, in her view, simply did not establish such a requirement.

1.The case law

She devoted much analysis to two key decisions, In re F (Mental Patient: Sterilisation) from 1990 and the Bland case from 1993, finding that both cases established that it was good practice to seek a court order, but not mandatory.

The 1990 case of F concerned a woman who could not consent to a sterilisation procedure, which doctors had determined was in her best interests, due to lack of mental capacity. The House of Lords found that it had the jurisdiction to grant a declaration that it would not be unlawful for this operation to be carried out. In other words, the House of Lords found that the courts inherently had the power to make a declaration that the sterilisation procedure was in the person’s best interests, and therefore lawful. They noted that where the procedure was being done for the purpose of preventing pregnancy (as opposed to treating a medical condition), it was highly desirable to obtain a declaration before the operation took place. It was not a requirement, however. One judge, Lord Griffiths, was keen to make it a legal requirement to obtain the court’s permission but declined to do so on the basis that this would amount to making new law, which was Parliament’s role.

The Bland case concerned a man who had been left in a persistent vegetative state following the Hillsborough disaster. An application was made by the hospital for a declaration from the court that it was lawful to discontinue the treatment, including CANH, that was keeping Mr Bland alive. The House of Lords found that it was lawful to stop the treatment and provided guidance to doctors and lower courts that, in all such cases, a court order should be obtained as a matter of good practice. However, they stopped short of saying that it was mandatory to obtain such an order.

2. The Mental Capacity Act 2005

Lady Black also considered the effect of the Mental Capacity Act in 2005. The Act is silent on the specific issue of whether court approval is needed in cases such as Y’s.

It was argued that this Act was a complete statutory code, designed to set out all the rules in this area. Therefore, if a rule existed that a court order was required in all cases of withdrawal of CANH, it would have been explicitly set out in the Act. However, no rule was in the Act, so no such rule exists. Lady Black did not quite accept this argument, although she did acknowledge its force.

However, she noted that it was “of interest” that the MCA 2005 was largely inspired by a Law Commission report produced in 1995. In that report, it was recommended that future legislation ought to contain a requirement to obtain a court order in every case prior to the withdrawal of nutrition to a patient who had no brain activity. Despite the recommendation from the Law Commission, this provision never made it onto the statute books.

Lady Black also looked at the Mental Capacity Act 2005 Code of Practice which, although it was not binding, suggested that court orders ought to be obtained as a matter of good practice but were not mandatory.

Finally, she considered the post-MCA 2005 case law which also did not set out any requirement for a court order.

Thus, overall, she found that the Official Solicitor, acting for Y, had failed to establish any requirement for a court order before withdrawal of CANH can occur in a patient with a PDOC.

3. ECHR law

The Official Solicitor’s second strand of argument focused on the European Convention of Human Rights, mainly article 2, the right to life.

Lady Black considered the case of Lambert v France, concerning a man, VL, with irreversible brain damage who was receiving CANH. Doctors supported the withdrawal of CANH but members of his family disagreed. They appealed the case all the way up to the ECtHR, arguing that the decision to withdraw CANH would violate VL’s rights, particularly under article 2. Their complaint was essentially with the decision-making process.

The ECtHR found that, provided that (1) the state had a proper regulatory framework in the law, that (2) account was taken of the patient’s and family’s wishes, and that (3) it was possible to go to court in the event of a disagreement, there was no breach of the ECHR in withdrawing CANH.

The Official Solicitor tried to argue that, in this case, (1) was not satisfied, i.e. that the UK’s did not have a proper regulatory framework. Lady Black disagreed, finding that the MCA 2005 and the MCA Code of Practice were essential elements of that framework, as well as guidance issued by the General Medical Council, British Medical Association and Royal College of Physicians.

Lady Black also rejected the arguments based on ECHR articles 6 and 14.

Other types of patients?

An issue that was certainly on my mind when I read about this judgment, and which no doubt has occurred to many readers, is why the focus on those suffering from a PDOC? Sadly, many of us will have come across situations of individuals who are unconsciousness as a result of, for example, a terrible stroke. Such individuals are kept alive with CANH and other treatments which may ultimately be withdrawn, leading to death. In such cases the courts are rarely, if ever, involved, and yet they appear to be morally and legally similar to the case that came before the Supreme Court.

This exact issue was noted by Lady Black at the end of her judgment, where she noted that the BMA had submitted that there was no principled or logical reason for requiring court orders for patients in a persistent vegetative state but not for patients with different conditions. Equally, there was no logic to treating clinically assisted nutrition and hydration differently from other types of life-sustaining treatment.

Conclusions

Ultimately, the Official Solicitor failed to establish the existence of any rule, in domestic or international law, that required doctors to obtain a court order before withdrawing CANH in a person in a PDOC. Therefore, in cases where everyone involved agrees that it is in a person’s best interests to withdraw CANH, in theory there is no need for a court order. This will likely be of great relief to many families, many of whom find the process of applying to court for such an order to be deeply upsetting.

In practice, however, there may be good reasons why such orders are still sought – doctors may want to protect themselves from any accusations of pressuring a family into withdrawal of CANH or the parties may want an independent arbiter to look at the situation.