Legal Update – When to go to court before…


Legal Update – When to go to court before withdrawing artificial nutrition & hydration from patients in a minimally conscious or permanent vegetative state.

M v A Hospital [2017] EWCOP 19: This judgment considered whether legal proceedings are necessary when there is agreement between the patient’s family and her clinicians that clinically assisted nutrition and hydration is no longer in the patient’s best interests and should be withdrawn. The judge concluded that they were not.

The Facts

This case concerned M, a patient who was in a minimally conscious state (MCS) and had been receiving clinically assisted nutrition and hydration (CANH) to keep her alive. M suffered from Huntingdon’s Disease – an inherited neurological condition that is progressive, incurable and ultimately fatal. There was agreement between M’s family and her clinicians that CANH was no longer in her best interests and should be withdrawn.

Court of Protection Practice Direction 9E (Applications Relating to Serious Medical Treatment) directs that decisions about the proposed withholding or withdrawal of CANH from a person in a permanent vegetative state (PVS) or MCS should be brought to court. Therefore M’s mother, as her litigation friend, applied to the court for a judicial determination of whether it was in was in M’s best interests for CANH to be withdrawn with the inevitable consequence that M would die.

The Court’s decision

After hearing evidence from M’s mother, husband, treating clinicians and an independent specialist in Huntington’s disease the court was satisfied that it was no longer in M’s best interests for her life to be artificially continued by CANH and that it should be discontinued and replaced by palliative care.

The court then went on to consider whether, having regard to Practice Direction 9E, legal proceedings were in fact necessary in a case such as M’s, where all parties are in agreement that withdrawal of CANH is in the patient’s best interests. The court concluded that there was no legal requirement for a decision, made in accordance with prevailing professional guidance, to withdraw CANH to be taken by the court.  The Mental Capacity Act 2005 makes no such requirement – on the contrary a best interests decision to withdraw CANH can be taken pursuant to s.5 of the Act without judicial involvement. Therefore, notwithstanding Practice Direction 9E, the decision about what was in M’s best interests was one that could lawfully have been taken by her treating clinicians, in consultation with her family, and a court application had been unnecessary.

The court acknowledged that court intervention may still be required in rare cases i.e. if there is disagreement between the parties as to whether the withdrawal is in the patient’s best interests.

In reaching this decision the court stated that consideration must be given to the deterrent effect of costly and time-consuming proceedings and that ‘a mandatory litigation requirement may deflect clinicians and families from making true best interest decisions and in some cases lead to inappropriate treatment continuing by default’. It is notable that, prior to the application being made,  M’s CANH had continued for over a year after the clinicians and family had agreed that it ceased to be in her best interests.

Comment

This decision follows on the tail of obiter comments made by the Court of Appeal in the recent case of Briggs that cases concerning the withdrawal of CANH from patients in PVS or MCS need only be brought to the court if there is disagreement or doubt as to whether it is in the patient’s best interests.

Earlier this year the Court of Protection Rules Committee recommended removing the current Practice Direction and the setting up of a multidisciplinary working group to formulate guidance about the circumstances in which cases should and should not be taken to court. Therefore Practice Direction 9E is likely to be withdrawn and new guidance issued in its place.

The decisions in M v a Hospital and Briggs provide welcome clarity about the circumstances in which a court application is necessary. Pending new guidance from the Court of Protection, our current advice to NHS Trusts and clinicians is that there is no requirement for a court application to be made for withdrawal of CANH from PVS/MCS patients unless there is doubt or disagreement as to whether that withdrawal is in the patient’s best interests. If  clinicians are in any doubt they should take legal advice particularly given the judge’s caveat that ‘every case is intensely fact specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so.’

If you have any questions or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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