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.