31 October 2018

Clarity at Last! Withdrawal of life-sustaining treatment

By Miranda Marshall, Director, Hayes + Storr

My two earlier articles on the NHS Trust v Y case dealt respectively with first the factual and legal background and secondly the Judges’ legal reasoning leading to their decision. This article seeks to draw some sort of conclusion and to consider the case’s practical legal impact on the question of withdrawal of Clinically Assisted Nutrition and Hydration (CANH).

Following the decision of the Supreme Court in Y, the view is that the position is now entirely clear. Where the provisions of the Mental Capacity Act 2005 (MCA) are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, life-sustaining treatment can be withdrawn (or withheld) without needing to make an application to the court. As the judge observed, if at the end of the process of decision-making the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action by those with an interest in the patient’s welfare, a court application can and should be made. That then enables the court to make the crucial decision on behalf of the patient.

Medical bodies are therefore working on publishing their joint guidance setting out the detailed decision-making process using the court’s judgement as the framework.

A new and interesting question arises, which is the applicability of Lady Black’s reasoning to other wider (and less critical) decisions, such as moving a person from their own home. In those cases the person themselves may well be able to express wishes and feelings which should feature heavily in the mix of identifying whether a court application is required.

The over-caution of the judges in the Tony Bland case (considered in my last article) led to the over-involvement of the court in these decisions. Now that a sufficient body of experience has been built up and codified in clinical guidance, the court is able to hand the decision-making back to the clinicians to undertake in conjunction with families. The judgement in NHS v Y makes it crystal clear. We can all breathe a big sigh of relief.

It also means that, because of the emphasis placed on following the tenets of the MCA, we can be confident of the effectiveness of making a Lasting Power of Attorney for Health and Personal Welfare, so as to instruct clinicians to accept instructions from our ‘nearest and dearest’ as though we were giving the instructions, In the dreaded event that we become mentally incapable of making those decisions for ourselves.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter call 01328 863231 or email law@hayes-storr.com.