10 October 2018

To be or not to be?

By Miranda Marshall, Director, Hayes + Storr.

The anodyne title of the case of An NHS Trust v Y hides its humanity and importance.

Ever since the House of Lords decision in the Hillsborough disaster victim case of Tony Bland, it has been recognised that Clinically Assisted Nutrition and Hydration (“CANH”) can be withdrawn, where it is no longer in a patient’s best interests, without the medical practitioners being guilty of murder. Indeed, in the Aintree NHS Trust case it was held that continued provision of CANH, which was not in the patient’s best interests, would be actively unlawful.

In Bland the House of Lords suggested that it would be good practice for applications to be made to the High Court for endorsement of a decision to withdraw CANH from those patients in a permanent vegetative state. That would be so even where there was agreement between the family and the medics that continuing CANH was not in the patient’s best interests. Over the years this developed into what became crystallised, in the view of medics, into a legal requirement and was extended to include similar decisions about those in a minimally conscious state. And so this position would have continued, with considerable distress to families at the delay of needing to go to court, to get endorsement of the decision as agreed by the family and the medics. Over the years, awkward questions began to be asked as to the precise basis on which the Code of Practice required that such decisions went to court.

Those awkward questions were ultimately posed in a stark form in Y’s case, where the NHS Trust responsible for his care went straight to the High Court to get a declaration that they did not need to approach the Court of Protection for an endorsement that Y should no longer receive CANH.

The High Court judge held that the NHS Trust did not have to seek the endorsement of the Court of Protection for the withdrawal of CANH. The Official Solicitor, acting as Y’s litigation friend, ‘leapfrogged’ the decision to the Supreme Court (as the High Court now is), even though by that time Y had died after contracting acute respiratory sepsis. The appeal went ahead because of the general importance of the issues raised.

In delivering the judgement of the Supreme Court, Lady Black took a step back from her “intense focus upon the law” to consider the issue in its wider setting. I shall set out her fascinating legal reasoning in my next article. She noted both the strain that going to court placed on families facing acutely distressing decisions and the pressure of court cases on the overstretched resources of the NHS.

The position is now clear in law. Where the provisions of the Mental Capacity Act 2005 and other guidance are followed, and if there is agreement as to what is in the best interests of the patient, life-sustaining treatment can be withdrawn without needing to make an application to the court. In cases where all is not clear, then an application to the court is still required. Making a Lasting Power of Attorney (“LPA”) for Health and Personal Welfare authorising your attorneys to make such a decision on your behalf will provide much of the necessary clarity should the worst ever happen to you.

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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