07:49, July 30 37 0 theguardian.com

2018-07-30 07:49:06
UK judges no longer required to rule on removing life-support

Judges will no longer need to be consulted when doctors and relatives of patients in a vegetative or minimally conscious state agree life-support treatment should end.

The ruling by the supreme court on Monday could affect the care of thousands of people every year who are kept alive in nursing homes and hospitals by medical interventions.

A legal challenge by the official solicitor was brought in the face of opposition by the family and doctors of a man who was identified only as “Mr Y”.

The case was accelerated through to the UK’s highest court because of his condition, but he died before it could be heard. The court nonetheless listened to legal arguments because, it said, this was an important issue that needed to be resolved.

The court had been told Mr Y was a banker who had a cardiac arrest last June aged 52. Before then, he was very active, despite working long hours in a stressful profession. He ran and skied, regularly went to the gym, and was said to have loved music and rock concerts. He had not left a living will or any instructions on what should happen to him in the case of sudden illness.

After the cardiac arrest, he was said to be unaware of himself and his environment. It was deemed highly improbable that he would regain consciousness.

His wife, their two children and his brother and sister, the high court had previously heard, all accepted Mr Y would not want to live in a vegetative or minimally conscious state with profound disabilities. His doctors agreed.

Richard Gordon QC, for the official solicitor, argued that common law or human rights law required that every case involving the withdrawal of treatment be the subject of a best interests application, regardless of whether there is a dispute.

Until now, families have had to submit themselves to lengthy and expensive proceedings at the court of protection, which considers the cases of those unable to represent themselves.

The original high court application was brought by Vikram Sachdeva QC on behalf of the unnamed NHS trust that had been treating the man.

Delivering judgment, 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 European convention on human rights … 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 [clinically assisted nutrition and hydration] can be withdrawn.

“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 …

“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.”

Welcoming the decision, Natalie Koussa, a director at the charity Compassion in Dying, said: “[This] brings much needed clarity to doctors and loved ones of those who have sadly been left in a vegetative or minimally conscious state following severe illness or injury.”

“The court’s decision also recognises the fact that sometimes, sadly, it is in someone’s best interests to withdraw treatment. It will allow those closest to a person – their loved ones and medical team – to feel supported and empowered to make the right decision for the person, even when it is a difficult one.

“If Mr Y had recorded his wishes around refusal of treatment beforehand in a legally binding way, doctors would have been duty-bound to follow his wishes without the need for a court case.

“While this judgment means that others in the same situation can now avoid court, cases will still go to court where a person in persistent vegetative or minimally conscious state had not set out their wishes for medical treatment, and there is a dispute within or between family and medical team about whether CANH is in the best interests of the individual.”

In 1993, in the case of Anthony Bland, a Hillsborough survivor who was left in a persistent vegetative state, the courts established that it is legal to stop providing treatment – including food and water – if it is deemed to be in the patient’s best interests.

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