Life Support & the Litigation Friend

I have posted before about the need to discuss with your loved ones and medical professionals your care requirements if at some stage you suffer a catastrophic illness or injury.  By discussing your wishes and completing an Advanced Care Directive, in the event that you are admitted to hospital your doctors can carry out your wishes as you have clearly expressed them in this document.

In June 2017, Y suffered a cardiac arrest leading to extensive brain damage due to lack of oxygen.

His doctors started Clinically Assisted Nutrition and Hydration (CAHN) although if Y regained consciousness, he would be in a vegetative state without the prospect of improvement and would be dependent on others to care for him; specialists diagnosed this as Prolonged Disorder of Consciousness (PDOC).

Y’s wife and children believed that he would not wish to be kept alive given his prognosis, and agreed it would be in Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.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 which provides secondary care including hospital care under the UK National Health Service sought a declaration that

• When the doctors and the patient’s family agreed that it was not in the patient’s best interests to continue treatment and
• no civil or criminal liability would result if CANH were withdrawn

it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with PDOC

At a directions hearing on November 3, the Court invited the Official Solicitor to act as  Y’s litigation friend in the proceedings (the Official Solicitor makes decisions for people who do not have the mental capacity to represent themselves or instruct a solicitor). The Court ordered that the final hearing be expedited and listed before the Queen’s Bench Division on 10 November, which concluded

“where the clinicians have followed the Mental Capacity Act (MCA) 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.”

The UK High Court granted a declaration that it was not mandatory to seek court approval for withdrawal of CANH from Y where the doctor and Y’s family agreed that continued treatment was not in his best interests.

The Court granted the Official Solicitor permission to appeal directly to the Supreme Court. Although Y died in the intervening period the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised by the case.

This decision was procedural and provides the circumstances in which court involvement is required for removal of CANH where there is medical and family agreement.

In its judgement dismissing the appeal, the Supreme Court stated that the Official Solicitor did not establish that the common law or the European Convention on Human Rights (ECHR) gave rise to the mandatory requirement to involve the court to decide upon the best interest of every patient with PDOC before CANH can be withdrawn.

The European Court of Human Rights’ (ECtHR) has established the factors required for the administration or withdrawal of medical treatment and the UK has complied with them in several ways including a legislative and regulatory framework compatible with the requirements of article 2 of the ECHR; requiring doctors to take into account the patient’s express wishes and those of people close to them, as well as the opinions of other medical personnel; as well as the opportunity to involve the Court whether or not a dispute is apparent.

The ECtHR does not believe that a decision to remove CANH from a patient with PDOC being made by a doctor without obligatory court involvement is problematic.

The High Court held that after considering common law or the ECHR, in combination or separately, neither 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 before CANH can be withdrawn.

In dismissing the appeal the High Court held that if the provisions of the MCA are followed 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.

However, although an application to the Court is not necessary in every case, there shouldn’t be any hesitation about involving the Court where the particular circumstances of the case require such an application.

An Advance care directive is an important part of planning for your future and should be discussed with your loved ones following a careful consideration of your wishes, and preferences for future health care, end of life, and the appointment one or more Substitute Decision-Makers, who can make these decisions if you are unable to do so yourself.