High Court confirms no requirement for court application for CANH withdrawal21/11/17
Following on from Re M (Withdrawal of Treatment: Need for Proceedings)  two months ago (in which Capsticks represented the hospital), on 13 November 2017. The High Court confirmed that court approval was not required to withdraw Clinically Assisted Nutrition and Hydration (‘CANH’) from a patient with a prolonged disorder of consciousness. Where the family and professionals were agreed that it was in the patient’s best interests to do so in the case of NHS Trust v Mr Y (by the Official Solicitor) and Mrs Y .
Mr Y was 52 years old and suffered a cardiac arrest after a myocardial infarction as a result of coronary artery disease. He was resuscitated but was left with extensive brain damage. It was agreed that Mr Y lacked capacity to make decisions regarding his treatment and care. The family and healthcare professionals were agreed that it was in Mr Y’s best interests for CANH to be withdrawn.
The Trust sought a declaration from the court that there is no mandatory requirement in statute or common law to seek consent to withdraw CANH from a patient with a prolonged disorder of consciousness, in circumstances where the family and professionals are agreed. The Official Solicitor opposed this, submitting that there is an obligation in common law to apply to court to ensure that Mr Y’s rights, and those of other patients in similar circumstances, under Article 2 and Article 6 of the European Convention of Human Rights were not infringed.
The court confirmed there is no rule or authority for the proposition that all cases concerning the withdrawal of CANH from a person with a prolonged disorder of consciousness must be sanctioned by the court. The court therefore granted the declaration (in less wide terms than those sought) confirming it was not mandatory to bring the issue of withdrawal of CANH from Mr Y before the court.
The High Court has given permission for this case to be ‘leap frog’ appealed to the Supreme Court and expedited so this issue is likely to be re-visited shortly - watch this space.
What to take away
It should be borne in mind that the principle of not applying to court for a declaration prior to withdrawal of CANH from patients with a prolonged disorder of consciousness only applies when:
- there is no dispute;
- where clinicians have followed the principles in the Mental Capacity Act 2005;
- there are no identified concerns or doubts regarding diagnosis or prognosis, misunderstanding by the family about the person’s wishes and feelings or concerns about the family’s motives; and
- there are no other factors which would require a matter to be taken to court such as there being any particularly difficult or novel issues requiring judicial consideration prior to taking the irreversible step of withdrawing CANH.
We recommend that legal advice is sought prior to giving effect to a decision to withdraw CANH from a patient with a prolonged disorder of consciousness. Not least because the court has made it clear that every decision to withdraw CANH is entirely fact specific and, there is potential for the legal position to change following consideration of the matter by the Supreme Court.
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. Francis Lyons was a member of Working Party reporting to the Court of Protection Rules Committee on Practice Direction 9E and CANH cases.
Please do not hesitate to get in touch with Francis Lyons, Georgia Ford, Tracey Lucas or Ian Cooper if you would like to understand the impact of this decision on the care you deliver.