A NHS Trust v Y (by his litigation friend, the Official Solicitor)  UKSC 46.
In June 2017, Y, an active man in his fifties, suffered a cardiac arrest which led to extensive brain damage due to lack of oxygen. He never regained consciousness and required Clinically Assisted Nutrition and Hydration (CANH) to keep him alive. His treating physician concluded that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remining life. A second opinion from a consultant and professor in Neurological Rehabilitation considered Mr Y to be in a vegetative state without prospect of improvement. Mrs Y and their children believed that he would not wish to be kept alive given the doctors’ views about his prognosis. The clinical team and the family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.
On 1 November 2017, the NHS Trust sought a declaration in the High Court that it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with Prolonged Disorder of Consciousness ( PDOC ) when the clinical team and the patient’s family agreed that it was not in the patient’s best interests to continue treatment and that no civil or criminal liability would result if CANH were withdrawn.
The High Court granted a declaration that it was not mandatory to seek court approval for withdrawal of CANH from Mr Y where the clinical team and Mr Y’s family were in agreement that continued treatment was not in his best interests. The judge granted permission to appeal directly to the Supreme Court. In the intervening period Mr Y died but the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised by the case.
The Supreme Court unanimously dismisses the appeal. Lady Black gives the sole judgment with which the other Justices agree.
REASONS FOR THE JUDGMENT
It has not been established that the common law or the European Convention on Human Rights (ECHR) give rise to the mandatory requirement to involve the court to decide upon the best interest of every patient with PDOC before CANH can be withdrawn.
The fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patient’s best interests. If a doctor carries out treatment in the reasonable belief that it will be in the patient’s best interests, he or she will be entitled to the protection from liability conferred by section 5 of the Mental Capacity Act (“MCA”) 2005.
Airedale NHS Trust v Bland  A.C. 789 did not impose a legal requirement that in all cases of patients in a persistent vegetative state an application must be made to court before CANH can be withdrawn. Instead the House of Lords “recommended… as a matter of good practice” that reference be made to the court. Therefore, when the MCA 2005 came into force in 2007 there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH and the MCA itself did not single out any class of decisions which must always be placed before the court.
The ECHR does not generate a need for an equivalent provision to be introduced. The European Court of Human Rights’ (ECtHR) decision in Lambert v France (2015) 62 EHRR 2 - (see link and discussion HERE) - and subsequent cases have repeatedly set out factors relevant to the administering or withdrawing of medical treatment. These are factors which the UK has complied with. First, the UK has a regulatory framework compatible with the requirements of article 2 in the form of the combined effect of the MCA 2005, the Code, and professional guidance, particularly that of the GMC. Second, the MCA 2005 requires doctors to take into account the patient’s express wishes and those of people close to him, as well as the opinions of other medical personnel. Third, the opportunity to involve the court is available whether or not a dispute is apparent.
Lambert and subsequent decisions show that the ECtHR does not regard it as problematic, in principle, that a decision to remove CANH from a patient with PDOC should be made by a doctor without obligatory court involvement.
CANH is medical treatment and it is not easy to explain, therefore, why it should be treated differently from other forms of life-sustaining treatment . In any event, it is difficult to accept that one can delineate patients with PDOC from other patients in such a way as to justify judicial involvement being required for the PDOC patients but not the others. In all cases, the medical team make their treatment decisions by determining what is in the patient’s best interest.
If it transpires that the way forward is finely balanced, there is a difference of medical opinion, or a lack of agreement from persons with an interest in the patient’s welfare, a court application can and should be made.
View the judgment hand down at Supreme Court Blog 30 July 2018
The Official Solicitor submitted that, in every case, court approval must be sought before CANH can be withdrawn from a person with PDOC, thus ensuring that the patient’s vulnerable position is properly safeguarded by representation through the Official Solicitor, who can obtain independent expert medical reports about his condition and prognosis, and make submissions to the court on his behalf if appropriate. At para 84 the court's judgment states -
"Considerations of human dignity and the sanctity of human life are, quite rightly, central to the Official Solicitor’s case. His submission is 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. An important part of the protection is, he submits, the oversight of an independent and neutral person such as the Official Solicitor, who can investigate, expose potential disputes, and give the patient a voice in the decision-making, and it is court proceedings that enable the Official Solicitor to be involved. Medical guidance on its own is, in his submission, insufficient protection, and so, until other protective mechanisms are devised, the common law and/or the ECHR dictate that an application to court must be made."
The court rejected this line of argument.
The MCA 2005 provides for the making of Lasting Powers of Attorney and also Advance Directives.