10 October 2018

Hillsborough revisited

By Miranda Marshall, Director, Hayes + Storr.

This article follows on from that of last month which set out the background and the decision made in the NHS Trust v Y case. It was held by the Supreme Court that life-sustaining treatment could be withdrawn by the NHS Trust from a man in his 50s, Mr Y, without having to obtain the authority of the Court.

Here, I wish to consider the legal reasoning behind the decision of the Supreme Court, as delivered by Lady Black.

She said that Clinically Assisted Nutrition and Hydration (CANH) is more easily viewed by most people as basic care rather than medical care, compared with, say, artificial ventilation or giving antibiotics; therefore, the withdrawal of CANH causes greater public unease. Even back in the 1990s Tony Bland case, CANH was viewed as medical treatment.

By way of background: The 1993 case of Airedale N.H.S. Trust v Bland was ground-breaking. Tony Bland was a young supporter of Liverpool F.C., who was caught in the Hillsborough crush, which reduced him to a persistent vegetative state. He remained in this state for three years, kept alive on life-support machines. His brain stem was still functioning, which controlled his heartbeat, breathing and digestion. Technically he was still alive, however, he was not conscious and had no hope of recovery. The hospital, with the consent of his parents, applied for a declaration that it might lawfully discontinue all life-sustaining treatment and medical support keeping him alive in that state, including the termination of CANH and artificial ventilation. The court gave permission for Tony’s life-sustaining treatment to be ended.

In the Bland case, the court recognised there was the intention to cause death and drew parallels with euthanasia. The court characterised withdrawal of treatment as an omission, which would be illegal if there was a duty to act. It held that there was no duty to treat if it was not in the best interests of the patient. Since there was no prospect of the treatment improving Tony’s condition, the treatment was futile and there was no benefit for Tony in continuing the process of artificially feeding him upon which the prolongation of his life depended.

The British Medical Association has no difficulty in CANH being withdrawn for a patient who has had a stroke or other condition with a downwards trajectory, without going to court. There were different approaches to treatment for patients with different categories of illness and this is illogical. In particular, whether the care (including CANH) was delivered in an emergency setting or not, produced inconsistent decisions.

Lady Black was sceptical about the need to obtain an emergency court decision in every case, as was being suggested as necessary by the Official Solicitor. She emphasised that from a clinical point of view going to Court could distract the doctors from making true best interests decisions. There might also be reluctance in some cases by the medics to start CANH because of the procedures attaching to its withdrawal. In a case where all proper procedures have been observed and there is no doubt as to the best interests of the patient, enabling the patient and family to spend time together without the burden and distraction of court proceedings, surely had to be the best thing.

Lady Black accepted that diagnosis in these cases was not straight-forward and that developments in medical science would “inevitably create new challenges of diagnosis and management, new uncertainties for the medical profession”. She noted that the survival of Tony Bland on life-support for 3 years back in the early 1990s, then so unprecedented, “is now a well-established feature of medical practice”.

Lady Black then went on to outline how decision-making should happen. I shall set out this guidance in my third and final article on the NHS v Y case.

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.

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