Doctors and family who agree on withdrawal of feeding no longer need to apply to Court
The case overview
On 20 September 2017, Mr Justice Peter Jackson (before moving on to the Court of Appeal) handed down a judgment that clarifies the law, for a difficult and emotive aspect of treatment, for both practitioners and families alike. The case (“M”) concerned withdrawal of clinically-assisted nutrition and hydration (CANH) from a long-standing Huntingdon’s Disease sufferer who was in a minimally conscious state (MCS), and whose family and hospital agreed that this would be in her best interests despite bringing about her death. Capsticks acted for the hospital.
As the Judge remarked, many of the reported cases portray doctors and families in opposite camps, but in the much greater number a common position is reached through people listening to each other – as in this case. He endorsed the consensus that had been reached and authorised the cessation of CANH.
The Judge's ruling
At the parties’ request and after submissions by the Official Solicitor, the Judge went on to rule that there is no legal requirement for such cases to be brought to Court, nor any reason to keep patients in a vegetative state (PVS) or MCS cases in a separate category. Instead, the well-established MCA principles apply to those in MCS and PVS as they do to all other cases, so that unless there is doubt about the patient’s best interests the people involved may lawfully withdraw (or withhold) CANH in compliance with ss. 4 and 5 of the MCA.
It should also be borne in mind that the costs and time entailed in Court proceedings can be a deterrent to prompt action in patients’ interests, with or without agreement on such withdrawal.
The Judge went on to stipulate that the treating teams must still comply with current professional guidance, structured medical assessments and obtain expert 2nd opinions.
This case has advanced an existing debate
The original position, arising from the 1993 Court of Appeal case of Bland (involving withdrawal of what was then called artificial nutrition and hydration from a Hillsborough victim who was in PVS) was set out in the Court of Protection’s Practice Direction 9E, which states that all such cases must be brought to Court. However, the extent to which that practice direction represents contemporary circumstances has been recently reviewed.
First, the Court of Protection’s Rules Committee has this summer recommended its removal and replacement by a multi-disciplinary group's guidance about which cases should go to court, from the end of this year. Next, at the end of July the Court of Appeal in Briggs stated the principle that treatment agreed to be in the patient’s best interests may lawfully be given regardless of the nature of the disorder, without recourse to Court. Mr Justice Jackson has helpfully expanded on this.
The Official Solicitor maintained his position that all such cases must continue to go to Court for the protection of such very vulnerable people: The Judge disagreed. For the time being, whenever there is consensus between families and clinical teams, and due process has been followed in line with the professional guidance, there is no need for proceedings.
We may expect the new rules to take this judgment fully into account but it remains to be seen what the Official Solicitor's position is in light of this judgment and whether this will become the subject of an appeal.
To conclude, as the Judge said, the Court is always available where there is disagreement, or some other reason for an application to be made – but, in the vast majority of cases that clinicians deal with, this will be rare.
How Capsticks can help
We have a specialist health and social care advisory team of over 20 specialist lawyers advising clients across the country on all issues relating to consent, capacity and medical treatment, including advising on whether Court of Protection proceedings are necessary. Please do not hesitate to get in touch if you would like to understand the impact of this decision on the care you deliver.