This was a claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration ("CANH") from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient's family are agreed that it is not in the patient's best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn. The declaration was made in relation to this case only.
Since his cardiac arrest on 2 June 2017, the Patient Mr Y has been in a prolonged disorder of consciousness ("PDOC"), he is unaware of self and his environment and his prognosis is poor. Mr Y did not execute any advance decision to refuse treatment or a lasting power of attorney. The Trust and his family agreed that the continued provision of CANH in these circumstances, taking account of his wishes and feelings, was contrary to his best interests. In those circumstances, no useful purpose would be served by making an application to the Court of Protection. On the contrary, the delay in obtaining a determination of such an application would result in prolonged unlawful treatment of Mr Y (as it would be against his best interests) and further suffering on the part of his family. The Official Solicitor accepted that there was no statutory obligation to bring an application for withdrawal of CANH before the court but submitted that there was a common law obligation to do so, in order to ensure that Mr Y's Article 2 and Article 6 Convention rights were not infringed and to provide independent scrutiny of the decision.
The court granted a declaration that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration ("CANH") from Mr Y who has a prolonged disorder of consciousness in circumstances where the clinical team and Mr Y's family are agreed that it is not in his best interests that he continues to receive that treatment. There is no rule of principle or binding authority for the proposition that there is a legal obligation that all cases concerning the withdrawal of CANH from a person who lacks capacity must be sanctioned by the court. There is a rule of practice that in general such cases should be determined in the Court of Protection. However, the decision in Re M establishes that where the clinicians have followed the MCA and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court. However, the court said that it was not necessary or appropriate to make a declaration that applies beyond this case and the release from liability sought was too wide.
An interesting decision where O’Farrell J reviews a number of authorities including Airedale, Bland and Aintree as well as the more recent decision in N v A, and in particular highlights the case of Briggs by King LJ and her obiter remarks at paragraph 108:
1. in obiter remarks, the circumstances in which such cases should be referred to the court at paragraph :
“(i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA.”
“(ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA.”
The conclusion was that the authorities do not establish any common law principle that all cases concerning the withdrawal of CANH for a person who lacks capacity must be sanctioned by the court and that there is no rule of principle or binding authority for such a proposition. Whereas there appeared to have been a rule of practice developing that such cases should be determined by the court of protection, O’Farrell J decided that the decision in M v A Hospital (withdrawal of treatment ; need for proceedings)  EWCOP 19 clearly established that where clinicians have followed the Mental Capacity Act and good medical practice, there being no dispute with the family of the person who lacks capacity or others interested in his welfare, and no doubts or concerns having been identified, there is accordingly no requirement to bring the matter before the court.
This decision will be considered by many to be sensible and humane to prevent lengthy delays before the court determines such applications as was the case sadly in Briggs. There will of course be those in society who consider that the sanctity of life remains paramount and that there should be an independent adjudicator of all such decisions, not simply agreement between family, interested persons and treating clinicians.
It of course may also raise a wider debate, and may reinvigorate the debate as to the sanctity of life such as was the case in Bland and Nicklinson and also relating to end-of-life care.
Read the full text of the judgment on Bailii
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