The Supreme Court has ruled that it is no longer necessary for NHS Trusts to seek the permission of the Court of Protection in order to withdraw Clinically Assisted Nutrition and Hydration (CANH) from a patient who has a prolonged disorder of consciousness (PDOC) in circumstances where the clinical team and the family are agreed that it is not in the patient’s best interests to continue with that treatment.
In An NHS Trust & Ors v Y & Anor  UKSC 46, Mr Y had had a cardiac arrest in 2017 that resulted in extensive brain damage. He never regained consciousness and required CANH to keep him alive. His treating physician concluded that he was suffering from PDOC and that even if he were to regain consciousness he would have profound cognitive and physical disability, remaining dependent on others for his care for the rest of his life. A second opinion confirmed that view. Mrs Y and their children believed that, given the prognosis, he would not wish to be kept alive. The clinical team and the family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks .
In November 2017, the NHS Trust applied to the Queen’s Bench Division for a declaration (1) that it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patient’s family were agreed that it was not in the patient’s best interests that he continue to receive that treatment, and (2) that no civil or criminal liability would result if CANH were to be withdrawn. At a directions hearing on 3 November, Fraser J invited the Official Solicitor to act as Mr Y’s litigation friend in the proceedings but, rather than adjourning the case for a hearing in the Court of Protection as the Official Solicitor sought, he ordered that the final hearing be expedited and listed before O’Farrell J in the Queen’s Bench Division on 10 November . O’Farrell J subsequently refused the Official Solicitor’s renewed application for the case to be transferred to the Court of Protection and granted the following declaration:
“It is not mandatory to bring before the court the withdrawal of 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” .
However, she granted the Official Solicitor permission to appeal directly to the Supreme Court .
The arguments of the Official Solicitor
The Official Solicitor argued that only by requiring judicial scrutiny in every case concerning the withdrawal of CANH from a patient suffering from PDOC can human life and dignity be properly safeguarded and his role was an important part of the protection of such patients. Relying solely on medical guidance provided insufficient protection . He also argued that the passing of the Mental Capacity Act 2005 had not undermined the common law position by the absence of an express statutory provision requiring court involvement: on the contrary, “[i]t was clear that Parliament intended that judicial scrutiny of any decision to withdraw CANH should continue for the foreseeable future” . He also invoked Article 2 (right to life), Article 6 (right to a fair trial), Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) ECHR as further support for the assertion that court involvement was a necessary component in securing the patient’s rights .
He also contended, in reliance on Article 14, that a patient in Mr Y’s position unjustifiably had less protection than an adult who had capacity and was terminally ill, the latter having the protection in relation to assisted dying afforded by s.2 of the Suicide Act 1961 (which makes it an offence to do an act capable of encouraging or assisting a suicide) . He stressed the particular vulnerability of patients with PDOC, the difficulty in assessing the level of a person’s consciousness and the dangers of a wrong diagnosis or a wrong conclusion about what was in the person’s best interests . Finally, without court oversight, the doctor would be the judge in his own cause; and there was a danger that a doctor might persuade family members who might not have the emotional or financial resources to question the doctor’s decision .
The Supreme Court was unpersuaded. In a single judgment, delivered by Lady Black, It could find no obligation under either the case-law [93, 99] or the Mental Capacity Act 2005  to apply to the Court before withdrawing treatment. As to whether such a provision was a requirement under the ECHR, “the answer is a clear ‘No'” .
“123. Medical science, continually developing, cannot always provide answers, and greater knowledge can produce yet more questions. Developments in this area of medicine include the ability to differentiate between vegetative state and minimally conscious state, and improvement in the outcomes for some individual patients. These changes inevitably create new challenges of diagnosis and management, new uncertainties, for the medical profession.
124. The situation is not, however, on a par with that which faced the House of Lords in the Bland case [Airedale NHS Trust v Bland  AC 789]. The survival of patients such as Anthony Bland, then so unprecedented, is now a well-established feature of medical practice. The documentation supplied to us shows that the difficulty that there is in assessing the patient and in evaluating his or her best interests is well recognised. The process is the subject of proper professional guidance, covering vitally important matters such as the involvement in the decision-making process of a doctor with specialist knowledge of prolonged disorders of consciousness, and the obtaining of a second opinion from a senior independent clinician with no prior involvement in the patient’s care. The second opinion, as contemplated in the guidance … is … a crucial part of the scrutiny that is essential for decisions of this sort, and the guidance sets parameters which should ensure that it is an effective check, in that the clinician who provides the second opinion must (so far as reasonably practical in the circumstances of the case) be external to the organisation caring for the patient, and is expected to carry out his or her own examination of the patient, consider and evaluate the medical records, review information about the patient’s best interests, and make his or her own judgement as to whether the decision to withdraw (or not to start) CANH is in the best interests of the patient. Thus the interests of patients and their families are safeguarded, as far as possible, against errors in diagnosis and evaluation, premature decisions, and local variations in practice.
125. 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.
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, 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 Mental Capacity Act 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.”