Judge: Supreme Court (Lady Hale, President; Mance, Wilson, Hodge and Black SCJJ)
Citation:  UKSC 46
Ever since the decision of the House of Lords in Bland, it has been recognised that CANH constitutes a medical treatment and that (as with any other medical treatment) it can be withdrawn where it is no longer in a patient’s best interests without the medical practitioners being guilty of the offence of murder. Indeed, in Aintree, the Supreme Court made clear that the continued provision of CANH (or any other medical treatment) which was not in the patient’s best interests would be actively unlawful.
The House of Lords in Bland suggested that it would be good practice for applications to be made to (then) the High Court for endorsement of the decision to withdraw CANH from those patients in a permanent vegetative state, at least until a body of experience and practice had built up which would obviate the need for such an application. That would be so even where there was agreement between the families and the treating clinical team that continuing CANH was not in the person’s best interests. Through a process of accretion described in the judgment of Lady Black in Y, the suggestion became crystallised into what was understood by many (in particular clinical practitioners) to be a legal requirement, and extended to include similar decisions in relation to those in a minimally conscious state. And so this position would have remained, causing, in many cases, considerable distress to families at the delay caused by the need to go to court in order to get endorsement of an agreed decision, had it not been for a series of awkward questions asked in 2017 as to the precise basis upon which the Code of Practice and Practice Direction 9E appeared to mandate that such decisions went to court.
Those awkward questions were ultimately posed in stark form in Y’s case, where the NHS Trust responsible for the care of man in an MCS, whom both the family and treating team agreed should no longer receive CANH, went to the High Court to get a declaration that it did not need to approach the Court of Protection for endorsement of this position. The Trust went to the High Court rather than the Court of Protection, so that there could be no suggestion that it was accepting the jurisdiction of the Court of Protection to make the decision (as had had happened in Re M, leading to somewhat sterile arguments as to whether the resulting decision that the Trust need not have come to court was, or was not, obiter).
O’Farrell J held at first instance that the Trust did not, as a matter of law, have to seek the endorsement of the Court of Protection where the decision to withdraw CANH was an agreed one. The Official Solicitor, acting as Y’s litigation friend, sought and obtained leave to ‘leapfrog’ the decision to the Supreme Court, albeit, by the time that the case reached the Supreme Court Mr Y had died after contracting acute respiratory sepsis. The Supreme Court nonetheless determined the appeal should go ahead because of the general importance of the issues raised.
The Official Solicitor submitted that, in every case, court approval had to be sought before CANH could be withdrawn from a person with PDOC, thus ensuring that the patient’s vulnerable position was properly safeguarded by representation through the Official Solicitor, who could obtain independent expert medical reports about his condition and prognosis, and make submissions to the court on his behalf if appropriate. The Official Solicitor derived this requirement essentially from the common law and/or the European Convention on Human Rights (ECHR), in particular Article 2 and Article 6. He also submitted that his position found support in the statutory Code of Practice to the MCA 2005, and it was irrelevant that neither the MCA 2005 nor the Court of Protection Rules specifically impose the requirement for which he contended. The intervenor Care Not Killing supported the Official Solicitor, drawing particular attention to difficulties in diagnosis.
The Trust and CCG (the latter as the body funding Y’s cases, and jointly represented with the Trust) argued, in response, that (1) Bland established no more than a rule of practice, (2) it was time for that blanket rule of practice to be dispensed with, and replaced by adherence to the detailed available professional guidance, and (3) there was no breach of human rights involved in withdrawal of CANH from a patient in a PDOC if continuation was not in their best interests. The British Medical Association, the Intensive Care Society and the Faculty of Intensive Medicine, intervening, supported the Trust/CCG’s arguments, and also put before the court relevant professional guidance, material setting out the realities of decision-making in different clinical situations, highlighting the difficulty of carving out CANH withdrawal in PDOC from other forms of decisions routinely taken by doctors in conjunction with families.
In a detailed tour d’horizon, taking in the common law, the MCA 2005, the jurisprudence of the Court of Protection, the ECHR and relevant medical guidance, Lady Black, delivering judgment on behalf of the Supreme Court, concluded in clear terms that there was no requirement either at common law or under the ECHR for court approval to be sought in the way contended for by the Official Solicitor. Importantly, Lady Black also then took a step back from her “intense focus upon the law” to consider the issue in its wider setting. At paragraphs 116 ff, she held as follows:
In an important passage finally dispelling what has become something of a myth that the diagnosis is all in determinations as to whether life-sustaining treatment should be continued, Lady Black made it clear that:
Lady Black made clear that she was sceptical as to whether it would, in fact, be possible to obtain a speedy court judgment in every case, as the Official Solicitor submitted should be the case, and, moreover, that:
Although Lady Black accepted that diagnosis was not straightforward, and that developments in medical science “inevitably create new challenges of diagnosis and management, new uncertainties, for the medical profession,” she noted that the survival of patients such as Anthony Bland, then so unprecedented, “is now a well-established feature of medical practice.” Importantly, Lady Black then went on to outline how decision-making should happen:
Lady Black therefore concluded that:
126 […] 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, 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 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. I would therefore dismiss the appeal. In so doing, however, I would emphasise that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances that appertain, and there should be no reticence about involving the court in such cases.
Following this decision, the position is now entirely clear. Where the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, life-sustaining treatment (whether CANH or another form of such treatment) can be withdrawn (or withheld) without needing to make an application to the court. Of course, as Lady Black observed, if at the end of the process of decision-making the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare, a court application can and should be made – so that the court can be asked to make this crucial decision on behalf of the patient. One immediate practical implication is that the joint guidance being worked on by the BMA, GMC and RCP can proceed to publication on the same basis that the interim guidance had been predicated; that guidance will set out a detailed decision-making process along the lines identified by Lady Black in her judgment.
Whilst the Supreme Court did not engage – as some had hoped it might – with the slightly Delphic observation of Lady Hale in N v ACCG that the general authority in s.5 will usually suffice to act in relation to the care and treatment of a person lacking capacity “unless the decision is so serious that the court itself has said it must be taken to court,” the same logic as set out by Lady Black in relation to life-sustaining treatment would, on its face, apply equally to other decisions that might fall to be made under the umbrella of s.5 (for instance, moving a person from their own home), with the added condition that, in many such cases, the person themselves may well be able to express wishes and feelings which should feature heavily in the mix in terms of identifying whether a court application is mandated.
One might ask whether the House of Lords in Bland that their (understandable) desire for caution merited the delay that ensued – and the return to the Supreme Court – before, in essence, it could be confirmed that a sufficient body of experience had been built up, and codified in clinical guidance, and the court could hand decision-making back to clinicians to undertake in conjunction with families. Be that it as it may, this judgment now makes the position absolutely clear.
Whilst the judgment is undoubtedly welcome at many levels, the handing back of this responsibility does carry with it the real need to ensure that the MCA is understood and applied with care and with attention to its spirit, as well as its letter, in the clinical context. The BMA/GMC/RCP guidance outlined above will undoubtedly help in the specific context of CANH withdrawal. One might also think that the decision of the Supreme Court only makes it more important that careful consideration is given by Parliament during the passage of the Mental Capacity (Amendment) Bill as to whether s.5 needs to be given the additional ‘teeth’ in relation to decisions relating to serious medical treatment that had been proposed by the Law Commission but which the Government, at least at present, does not consider to be necessary.