Posted On / 04.10.2017

Who decides when treatment is withdrawn: The Court, the family or the medical practitioners?

Who decides when treatment is withdrawn from an individual who is in a vegetative or minimally conscious state? This question has caused controversy between the Courts, medical practitioners and the families of patients for a number of years.

However, Mr Justice Jackson set down a judgment on 20 September 2017 which is now a precedent for future cases of this nature. An application was brought before the Court of Protection (M -v- A Hospital [2017] EWCOP 19) in which the Court was asked to consider whether a decision to withdraw life-sustaining treatment should be made by the Court or by the treating medical practitioners and family members.

M was suffering with Huntington’s disease and had been for 25 years. The application to withdraw clinically assisted nutrition and hydration (CANH) was brought by M’s Mother, Mrs B. She had witnessed her daughter’s condition deteriorate and seen her quality of life become virtually non-existent. She believed that the percutaneous endoscopic gastrostomy (PEG) feeding tube was keeping her alive with no possibility of change or cure: instead it was causing M to suffer.

M’s position was considered in accordance with the Mental Capacity Act 2005 which states that if a person is unable to make a decision for themselves, the person making a decision on their behalf must act in the person’s best interests, and account must be taken of the views of anyone engaged in caring for the person. This is reaffirmed by Article 2 (the right to life) and Article 3 (protection from inhuman or degrading treatment) of the European Convention on Human Rights.

The Court of Protection Practice Direction 9E provides that when a person lacks capacity and is in a vegetative or minimally conscious state, the matter of withdrawing treatment must be brought before a Court. Until now, medical practitioners have been very wary about withdrawing such treatment, including giving the patient food and water through a tube, since if they did so without the approval of the Court, they might be prosecuted for murder and/or lose their licence to practise medicine.

Mr Justice Jackson has now determined that it is not a legal requirement for the decision to withdraw CANH to have been taken by the Court. The decision can be made by the treating medical professionals, in line with the General Medical Council’s Guidance and having regard to the opinions of the family members.

The decision of Mr Justice Peter Jackson is one which may well be challenged and the application of this ruling has yet to create any new case law. It is clear that every case is fact-specific. If there is real uncertainty as to the best interests of a patient, the Court of Protection will not hesitate to step in and consider it. However, if there is an agreement between the family and the treating medical practitioners, permission from the Court of Protection is no longer necessary. The doctors and the family can lawfully make a decision and act on it even though it brings about the death of the patient.

This judgment is likely to be welcomed by many medical practitioners who feel that it is inappropriate to carry on giving further treatment to a patient after a decision not to has been made. Indeed, continuing to do so when it is not in the patient’s best interests can be a form of battery. From a practical point of view, an application to the Court is an expense to both the NHS and the families involved. A judgment from the Court can take around 9 months to obtain, prolonging a family’s anguish. If medical practitioners feel that a patient should have their CANH withdrawn, continuing to treat them for weeks or months can be disheartening for medical staff. If there is no cure for the patient, treatment may simply be extending the patient’s suffering.

The Court of Protection will monitor the progress of future cases and will no doubt make changes if they are required.

If you require advice on making an application to the Court of Protection then Battens are able to advise you. In addition, should you be concerned about who will make health and welfare decisions for you in the event of accident or injury, you should consider making a Health and Welfare Lasting Power of Attorney.  This gives a person, or people of your choice, the authority to make both general health and welfare decisions on your behalf, but also have an input into whether or not you receive life sustaining treatment.  Again, we would be happy to advise you on this.

If you wish to discuss the topics in this article please contact Naomi Dyer on 01935 811307 or naomi.dyer@battens.co.uk or click here to visit the Lasting Powers of Attorney and Court of Protection page of our website.