Court Ruling 'Not Needed in Most End of Life Cases'

Peter Russell

July 30, 2018

Permission of the courts is not needed to end care for patients who have a prolonged disorder of consciousness, such as those in a persistent vegetative or minimally conscious state, the Supreme Court has ruled.

It means it will be easier to withdraw clinically assisted nutrition and hydration (CANH) to allow such patients to die without judicial approval, as long as healthcare professionals and families are in agreement that to do so is in a patient's best interest.

The Case of Mr Y

Judgment revolved round the case of 'Mr Y', an active man in his fifties who experienced severe cerebral hypoxia and extensive brain damage after a cardiac arrest in June 2017. The patient never regained consciousness and needed CANH from a percutaneous endoscopic gastrostomy to keep him alive.

The doctor treating Mr Y said that even if he regained consciousness, he would be seriously disabled and dependent on life-long care. A second opinion from a consultant and professor in neurological rehabilitation considered Mr Y to be in a vegetative state without any prospect of improvement. 

The patient's wife and children believed Mr Y would not wish to be kept alive given his medical assessment.  They agreed that life-sustaining care should be withdrawn with the expectation that he would die within 2 to 3 weeks.
 

Court Judgment

In November 2017, the NHS trust involved sought a declaration in the High Court that it was not mandatory to seek the court's approval for the withdrawal of food and water in this case. The judge granted permission to appeal directly to the Supreme Court. 

In the intervening period Mr Y died but the Supreme Court allowed the appeal to proceed because of the general importance of the issues raised by the case.

Giving judgment, Lady Black said neither common law nor the European Convention on Human Rights required the courts to decide the best interests of every patient before withdrawal of CANH. The judgment said that "it must be kept in mind that the fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patient's best interests".

Reaction to the Judgment

Responding to the judgment, Dr John Chisholm, chair of the British Medical Association's medical ethics committee, said: "As we outlined in our evidence to the Supreme Court, it has long been the BMA's position that, where the clinical team and family agree, and proper process has been followed, there is no need for the court to be involved in decisions to withhold or withdraw such treatment.  We therefore welcome today's ruling, which clarifies the role of the court in these situations. 
 
"While such decisions cannot be taken lightly, the aim of medical treatment is not to simply prolong life at all costs, but to consider whether treatment can provide a quality of life that the individual patient would find acceptable.
 
"Of course, in cases where there is disagreement between the clinical team and the family, the court still has an important role to play."

Natalie Koussa, director of partnerships and services at Compassion in Dying, said: "Today's judgment is an important move towards more person-centred care, because it means that what's best for the individual can be decided by their medical team and loved ones, and acted upon more quickly, rather than spending months or even years waiting for a court decision."

The pressure group Care Not Killing said it was disappointed that the Supreme Court had "removed an important safeguard from brain-damaged patients". Its director, Dr Peter Saunders, said: "In making these declarations Lady Black and the Supreme Court has dramatically moved the goalposts on end of life decision-making. Once we accept that death by dehydration is in some brain-damaged people's 'best interests' we are on a very slippery slope indeed.

"There is a clear difference between turning off a ventilator on a brain-dead patient and removing CANH from a brain-damaged patient."
 

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