Thu, 02 Aug 2018
After the Anthony Bland case in 1993, it became the practice to get the courts to decide whether a patient in a persistent vegetative state could be allowed to die. Following a Supreme Court decision on 30 July 2018 in a land mark case called NHS Trust v Y  UKSC 46, the law in future will allow doctors and families to make the decision to allow a patient to die to withdraw sustenance where they all agree to it, without needing to go to a court.
A persistent vegetative state is generally caused by a brain injury. The person is alive, but they are unaware that they are alive. They may open their eyes, have basic responses, their heart beats and they may keep breathing, but they cannot think, have no awareness of their environment or others and recovery is rare. Without the nutrition and hydration provided by carers the person would die. The condition can cause great distress to their family and sometimes to those caring for them.
The Supreme Court case considered the case of Mr Y; a man in his fifties, who had a heart attack in June 2017. His body survived the heart attack, but was he left with severe brain damage and he never regained consciousness. In September 2017, clinicians decided that there was no prospect of improvement. His wife and family believed he would not have wanted to be kept artificially alive and they asked that he could die peacefully by withdrawing assisted nutrition and hydration. The doctors agreed with the family, but they had to keep Mr Y alive whilst the hospital applied to the courts for permission to allow him to die.
The assumption was that the law required every such case to be decided by a judge after an application to the Court of Protection. The Court of Protection makes decisions for people who lack the mental capacity to make their own decisions. In this case however, the NHS Trust decided to challenge the obligation to go to the Court of Protection and instead issued an application to the High Court for a declaration that it was not required to seek judicial consent to withdraw nutrition in a case where the clinical team and the patient’s family agreed.
The High Court asked the Official Solicitor, who acts on behalf of those who cannot instruct their own solicitor, to act for Mr Y. The Official Solicitor asked for the case to be transferred into the Court of Protection, but on 10 November 2017, Mrs Justice O’Farrell ruled that, “where the clinicians have followed the Mental Capacity Act 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.” NHS Trust v Y EWHC 2866(QB) . The ruling had overturned a quarter of a century of established practice, so the Official Solicitor asked for, and was granted, permission to appeal the decision to the Supreme Court and the case was listed as a matter of urgency.
Sadly, on 22 December 2017, Mr Y died for unrelated reasons; nonetheless, the legal case continued because it raised issues of such public importance: did the permission of the court need to be obtained before ending a life in every case?
The Official Solicitor pointed to two cases which appeared to suggest that the permission of the court should always be sought. The cases were ‘In re F (Mental Patient: Sterilisation) 2 AC 1’, a case decided by the House of Lords, and Airedale NHS Trust v Bland  AC789. After them, the practice became to apply to the Court of Protection for a declaration that it was in the person’s best interests under s. 4 of the Mental Capacity Act 2005 for nutrition and hydration to be stopped. Further, the Official Solicitor argued that, only by ensuring court oversight in every case could human life and dignity be properly safeguarded, because medical guidance and family consent was an insufficient protection.
In Mr Y’s case the Supreme Court has now ruled that permission is not required in every case under neither the English Common Law or the European Convention on Human Rights. Lady Black gave the lead speech saying that, where a best interests decision was jointly made by clinicians and relatives according to the provisions of s.4 Mental Capacity Act 2005, then they could end life. Lady Black reminded us that the founding principles were that medical treatment could not be given without the consent of the patient and that any treatment had to be in a patient’s best interests. Section 5 of the 2005 Act had given health professionals a significant degree of protection from liability provided they both acted in the reasonable belief that the patient lacked capacity to make a decision and they were acting in the person’s best interests. After a thorough analysis of the precedents, the 2005 Act and the various Codes of Practice, Lady Black said, she there was no requirement for court permission to be obtained in every case.
At paragraph 36 of the judgement, Lady Black noted that there was extensive guidance in the Mental Capacity Code of Practice about how best interests was to be decided. There was also guidance from the General Medical Council and other organisations about how clinicians should consider these difficult cases. The Tony Bland case in 1993, had recommended that it was often best to obtain court permission, but this was not an absolute requirement in all cases; the issue was when it was necessary to get court permission and when it was unnecessary.
The Official Solicitor had relied on the words in the Mental Capacity Code of Practice which said the court “must be asked to make” a declaration in each case; but Lady Black said that “A code of practice in these rather ambiguous terms” could not extend the legal duty beyond what was required by statute or case law (para 97). Lady Black said, “There being, therefore, in my view, no requirement in domestic law for an application to court of the type that the Official Solicitor says is imperative for the protection of patients, the next question is whether the ECHR generates a need for an equivalent provision to be introduced. To my mind, the answer is a clear ‘No’.” (para 102)
The ruling makes clear that when making decisions like this, a series of steps must be followed.
Firstly, the views of the treating clinician should be sought, but also, the second opinion of a senior independent clinician with no prior involvement in this patient’s care. This second opinion was described as “a crucial part of the scrutiny that is essential for decisions that this sort… Thus, the interests of patients and their families are safeguarded, as far as possible, against errors as far as possible, against errors in diagnosis and evaluation, premature decisions, and local variations in practice.” (para.124)
Secondly, the decision by medical staff should considered at a multidisciplinary meeting in the light of the medical guidance and the Mental Capacity Act and its Code of Practice.
Thirdly, the previously known views of the patient should be weighed in the decision and also the views of his family.
If there was agreement, then, Lady Black noted that taking a matter to court could put pressure on the resources of NHS trusts and “add greatly to the strain on families facing acutely distressing decisions” (para 121). The decision could be made by agreement without the court. That said, Lady Black was clear that if there are any disagreements or serious doubts then a declaration by the Court of Protection should be sought.
“If, at the end of the medical process, it is apparent that 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. As the decisions of the ECtHR underline, this possibility of approaching a court in the event of doubts as to the best interests of the patient is an essential part of the protection of human rights. The assessments, evaluations and opinions assembled as part of the medical process will then form the core of the material available to the judge, together with such further expert and other evidence as may need to be placed before the court at that stage. (para 125)
126. In conclusion, 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…give rise to the mandatory requirement … to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness. 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.”
This is a clear decision for clinicians and families facing these terrible decisions. It has produced controversy with some religious groups objecting, but it must be right that the courts only need to become involved if there is doubt or a dispute. Where the decision is an obvious one, the family and the clinicians are best placed to decide.
Rt Hon Mike O'Brien QC
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