A ruling that a man with an extensive brain injury should be allowed to die without his family going before a judge has been upheld by the UK’s highest court.
From June 2017, the 52-year-old financial analyst, who can be identified only as Mr Y, was in a prolonged disorder of consciousness (PDOC) after suffering a cardiac arrest as a result of coronary artery disease.
PDOC covers patients remaining in a coma, vegetative state and minimally conscious state after a brain injury.
Experts agreed it was highly improbable that Mr Y would re-emerge into consciousness and – even if he did – he would have profound cognitive and physical disability and always be dependent on others.
Mr Y had not drawn up any advance decision to refuse treatment but his family were firmly of the view that he would not want to be kept alive given the poor prognosis.
His family and medical team agreed it would be in his best interests for clinically assisted nutrition and hydration (CANH) to be withdrawn, with the result that he would die within two to three weeks.
In November 2017, a High Court judge granted a declaration that it was not mandatory to bring before the court the withdrawal of CANH from Mr Y in circumstances where there was no dispute between his relatives and specialists.
She gave permission for an appeal by the Official Solicitor – who represents people who lack capacity – and CANH was provided in the meantime, but Mr Y died in December.
It was decided that the appeal before five Supreme Court justices should proceed because of the general importance of the issues raised.
Richard Gordon QC, for the Official Solicitor, said that the central issue was whether the obtaining of an order from the Court of Protection, before CANH could lawfully be withdrawn from a person in a PDOC, was unnecessary where treating clinicians and the family agreed it was not in the patient’s best interests.
He added: “This case is not about whether it is in the best interests of a patient to have CANH withdrawn. It is about who decides that question.”
Although the Official Solicitor accepts there is no statutory requirement to bring such cases to court, he argues that the common law or human rights law require that every case involving the withdrawal of CANH be the subject of a best interests application regardless of whether there is a dispute.
On Monday, the justices unanimously dismissed the appeal.
Lady Black said: “Having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR (European Convention on Human Rights), in combination or separately, give rise to the mandatory requirement, for which the Official Solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn.
“If the provisions of the MCA 2005 (Mental Capacity Act) are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court.”
She emphasised that, although application to court was not necessary in every case, there would undoubtedly be cases in which an application would be required – or desirable – because of the particular circumstances and there should be no reticence about involving the court in such cases.