Clinically assisted nutrition and hydration can be withdrawn from a patient with prolonged disorder of consciousness without the court’s approval where it is agreed that continued treatment is not in their best interests and that no civil or criminal liability would result.
An NHS Trust and Others v Y (By His Litigation Friend, The Official Solicitor) and Another
The Supreme Court of the United Kingdom
 UKSC 46
Lady Hale, Lord Mance, Lord Wilson, Lord Hodge, Lady Black
July 30, 2018
Reported by Linda Awuor, Faith Wanjiku & Wanjiru Njihia
Health Law– health and social care-clinically assisted nutrition and hydration -prolonged disorder of consciousness- withdrawal of clinically assisted nutrition and hydration for persons lacking mental capacity–where a patient lacked mental capacity to decide on withdrawal-whether a court order had to always be obtained before withdrawal of clinically assisted nutrition and hydration (CANH), from a person with a prolonged disorder of consciousness (PDOC) with no civil or criminal liability resulting-Mental Capacity Act, 2005, section 17 1(d)
Health Law-liability- criminal and civil liability- acts in connection with care or treatment- withdrawal of clinically assisted nutrition and hydration-whether carers and health professionals would be exempt from any liability on decisions they made to withdraw CANH for persons lacking capacity to consent having taken reasonable steps before the withdrawal-Mental Capacity Act, 2005, section 5
Civil Practice and Procedure-powers of attorney-lasting powers of attorney-lack of mental capacity to make decisions about one’s welfare- whether a person through appointment of donees appropriately through powers of attorney could cater in advance for the possibility that they would, in future lose the mental capacity to make decisions about their welfare-Mental Capacity Act, 2005, section 9
Statutes-interpretation of statutory provisions- interpretation of section 37(6) of the Mental Capacity Act, 2005-meaning of the phrase serious medical treatment- what was meant by provision of serious medical treatment by NHS body for a person who lacked capacity to consent to it and there was no one, appropriate to consult in determining what would be in the person’s best interests? – Mental Capacity Act, 2005, section 37(6)
In June 2017 Mr. Y (the deceased), an active man in his fifties, suffered a cardiac arrest which consequently led to extensive brain damage due to lack of oxygen. He never regained consciousness following the cardiac arrest and required clinically assisted nutrition and hydration (CANH) to keep him alive. His treating physician concluded that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remaining life. A second opinion from a consultant and professor in Neurological Rehabilitation considered the deceased to be in a vegetative state without prospect of improvement. Mrs Y and their children believed that he would not wish to be kept alive given the doctors’ views about his prognosis. The clinical team and the family agreed that it would be in the deceased’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.
On November 1, 2017, the NHS Trust sought a declaration in the High Court that it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with prolonged disorder of consciousness (PDOC) when the clinical team and the patient’s family agreed that it was not in the patient’s best interests to continue treatment and that no civil or criminal liability would result if CANH were withdrawn. The High Court granted a declaration that it was not mandatory to seek court approval for withdrawal of CANH from the deceased where the clinical team and his family were in agreement that continued treatment was not in his best interests. The judge granted permission to appeal directly to the Supreme Court. In the intervening period Mr Y died but the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised by the case.
- Whether a court order had to always be obtained before withdrawal of clinically assisted nutrition and hydration (CANH), from a person with a prolonged disorder of consciousness (PDOC) with no civil or criminal liability resulting.
- Whether carers and health professionals would be exempt from any liability on decisions they made to withdraw CANH for persons lacking capacity to consent having taken reasonable steps before the withdrawal.
- Whether a person through appointment of donees appropriately through powers of attorney could cater in advance for the possibility that they would, in future lose the mental capacity to make decisions about their welfare.
- What was meant by provision of serious medical treatment by NHS body for a person who lacked capacity to consent to it and there was no one, appropriate to consult in determining what would be in the person’s best interests
Relevant Provisions of Law
Mental Capacity Act 2005
Section 1(5)-the Principles
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Section 4(5)-best interests
Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
Section 5-Acts in connection with care or treatment
(1) If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if—
(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and
(b) when doing the act, D reasonably believes— (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P’s best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not have incurred if P—
(a) had had capacity to consent in relation to the matter, and
(b) had consented to D’s doing the act.
(3) Nothing in this section excludes a person’s civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.
(4) Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).
Section 9 -Lasting powers of attorney
(1) A lasting power of attorney is a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following—
(a) P’s personal welfare or specified matters concerning P’s personal welfare, and
(b) P’s property and affairs or specified matters concerning P’s property and affairs, and which includes authority to make such decisions in circumstances where P no longer has capacity.
(2) A lasting power of attorney is not created unless—
(a) section 10 is complied with,
(b) an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 1, and
(c) at the time when P executes the instrument, P has reached 18 and has capacity to execute it. (3) An instrument which—
(a) purports to create a lasting power of attorney, but
(b) does not comply with this section, section 10 or Schedule 1, confers no authority.
(4) The authority conferred by a lasting power of attorney is subject to—
(a) the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests), and
(b) any conditions or restrictions specified in the instrument.
Section 11(7-8)-lasting powers of attorney: restrictions
11(7)- Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P’s personal welfare, the authority— (a) does not extend to making such decisions in circumstances other than those where P lacks, or the donee reasonably believes that P lacks, capacity, (b) is subject to sections 24 to 26 (advance decisions to refuse treatment), and (c) extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.
11(8)- But subsection (7)(c)— (a) does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect, and (b) is subject to any conditions or restrictions in the instrument.
Section 37-provisions of serious medical treatment by NHS body
(1) This section applies if an NHS body—
(a) is proposing to provide, or secure the provision of, serious medical treatment for a person (“P”) who lacks capacity to consent to the treatment, and
(b) is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests.
(2) But this section does not apply if P’s treatment is regulated by Part 4 of the Mental Health Act.
(3) Before the treatment is provided, the NHS body must instruct an independent mental capacity advocate to represent P.
(4) If the treatment needs to be provided as a matter of urgency, it may be provided even though the NHS body has not been able to comply with subsection (3).
(5) The NHS body must, in providing or securing the provision of treatment for P, take into account any information given, or submissions made, by the independent mental capacity advocate.
(6) “Serious medical treatment” means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority.
(7) “NHS body” has such meaning as may be prescribed by regulations made for the purposes of this section by— (a) the Secretary of State, in relation to bodies in England, or (b) the National Assembly for Wales, in relation to bodies in Wales
The Mental Capacity Act 2005 Code of Practice
Paragraph 5.31-How should someone’s best interests be worked out when making decisions about life-sustaining treatment?
5.31- All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.
5.33- Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests.
5.36- As mentioned in paragraph 5.33 above, where there is any doubt about the patient’s best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life-sustaining treatment is in the patient’s best interests.
Paragraph 6.18-healthcare and treatment decisions
6.18- Some treatment decisions are so serious that the court has to make them – unless the person has previously made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them (see chapter 7) or they have made a valid advance decision to refuse the proposed treatment (see chapter 9). The Court of Protection must be asked to make decisions relating to:
• the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS)
• cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person
• the proposed non-therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes)
• cases where there is a dispute about whether a particular treatment will be in a person’s best interests.
6.19- This last category may include cases that introduce ethical dilemmas concerning untested or innovative treatments (for example, new treatments for variant Creutzfeldt-Jakob Disease (CDJ)) where it is not known if the treatment will be effective, or certain cases involving a termination of pregnancy. It may also include cases where there is conflict between professionals or between professionals and family members which cannot be resolved in any other way. Where there is conflict, it is advisable for parties to get legal advice, though they may not necessarily be able to get legal aid to pay for this advice.
- The Mental Capacity Act 2005 (MCA 2005) was a watershed in the law relating to people who lacked capacity. Before the Act, questions relating to the management of the property and affairs of adults who did not have capacity to make their own decisions, were dealt with in the old style Court of Protection, and questions relating to the care and welfare of such adults were resolved under the inherent jurisdiction of the High Court. The MCA 2005 established a new regime with, amongst other things, a new Court of Protection which had jurisdiction in relation to both property matters and issues relating to personal care. Nevertheless, an examination of the common law in relation to the treatment of patients such as the deceased had to commence with the pre-MCA 2005 cases.
- Developments in medical technology, including the development of life support systems, had made it possible for patients who would otherwise have died to survive. Those developments had fundamentally affected previous certainties about what was life and what was death, and meant that the time and manner of someone’s death might no longer be dictated by nature but might instead be determined by a human decision. Wholly new ethical and social problems had been raised by the developments, and society was not of one mind about them. It was not a foregone conclusion that the withdrawal of artificial life support measures could be tolerated at all by the criminal and civil law, and the decision to endorse the declarations that had been granted by the President of the Family Division was only arrived at after an extensive review of the law, and then only on a narrow basis tied firmly to the facts of the case.
- Previous decisions had held that the guidance of the court should be sought before treatment and care of a patient were discontinued. It was appropriate to underline the following three points of importance which had relevance to many decisions, including the present one:
- As in re F (Mental Patient: Sterilisation  2 AC 1), it was unlawful to administer medical treatment to an adult who was conscious and of sound mind, without his consent; to do so was both a tort and the crime of battery. Such an adult was at liberty to decline treatment even if that would result in his death, and the same applied where a person, in anticipation of entering into a condition such as persistent vegetative state (PVS), had given clear instructions that in such an event he was not to be given medical care, including artificial feeding, designed to keep him alive.
- Where a person, due to accident or some other cause, became unconscious and thus unable to give or withhold consent, it was lawful for doctors to give such treatment as, in their informed opinion, was in the best interests of the patient. Where it was no longer in the best interests of the patient to provide treatment, it would, and ultimately should, be discontinued
- The argument that artificial feeding (in that case by nasogastric tube) was not medical treatment at all, but indistinguishable from normal feeding, was rejected. Regard had to be had to the whole regime which was keeping the patient alive, and in any event a medical technique was involved in the feeding.
- in Airedale NHS Trust v Bland  AC 789(the Bland case) when explaining their position in relation to declaratory relief, the Court recognised that the courts and the medical profession were working together in addressing the new situation that had arisen as a result of scientific advances. The medical profession had already been working on the issue and there was available a Discussion Paper on Treatment of Patients in Persistent Vegetative State, issued in September 1992 by the Medical Ethics Committee of the British Medical Association.
- There was much to be said for the view that an application to the court would not be needed in every case, but only in particular circumstances. In that connection the instant Court was impressed not only by the care being taken by the Medical Ethics Committee to provide guidance to the profession, but also by information given to the Appellate Committee about the substantial number of PVS patients in the country, and the very considerable cost of obtaining guidance from the court in cases such as the one before the Court. However, that was a matter which would be better kept under review by the President of the Family Division. The instant Court understood that similar review was being undertaken in cases concerned with the sterilisation of adult women of unsound mind, with a consequent relaxation of the practice relating to applications to the court in such cases.
- Since 2007, the MCA 2005 had been the statutory context within which treatment decisions were taken in relation to those who lacked capacity, essentially without input from the court, but with the possibility of an application being made to court should the case require it. The Court started with two provisions which placed the best interests of the person who lacked capacity at the heart of the process. In section 4 and 5 of the MCA 2005, all the relevant circumstances had to be considered, and the steps listed in the sections had to be taken. They included considering, so far as reasonably ascertainable, the person’s wishes and feelings, and the beliefs and values that would be likely to influence his decision if he had capacity, as well as the other factors that he would be likely to consider if he were able to do so. Also to be taken into account were the views of various specified people who had some responsibility for or were interested in his welfare.
- Section 5 of MCA 2005 allowed carers, including health professionals, to carry out acts in connection with personal care, health care, or treatment of a person who lacked capacity to consent. It provided a significant degree of protection from liability, provided that the act was done in the reasonable belief that capacity was lacking and that the act was in the patient’s best interests. If those conditions were satisfied, no more liability was incurred than would have been incurred if the patient had had capacity to consent and had done so.
- Some provisions of the MCA 2005 Act enabled someone to cater in advance for the possibility that he or she would, in future, lose the capacity to make decisions about his or her own welfare. One such provision was section 9 which dealt with lasting powers of attorney, under which the donor gave the donee authority to make decisions about the donor’s personal welfare. Such a power of attorney was subject to the restrictions in section 11(7), and thus subject to sections 24 to 26 of the Act. Although it would normally extend to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the donor.
- Sections 24 to 26 dealt specifically with advance decisions to refuse treatment. They enabled an adult with capacity to decide in advance that if he later lacked capacity to consent to the carrying out or continuation of a specified health care treatment, that treatment was not to be carried out or continued. Such an advance decision applied to life-sustaining treatment only if the decision was verified by a statement from the person concerned that it was to apply even if his life was at risk, and the decision complied with certain formalities set out in section 25(6), which essentially required it to be written, signed and witnessed.
- Section 37 made provision for a situation in which an NHS body was proposing to provide serious medical treatment for a person who lacked capacity to consent to it and there was no one, other than those engaged in providing care or treatment for the person in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in the person’s best interests. Serious medical treatment meant treatment which involved providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority, which in practice would relate to situations in which a finely balanced decision had to be taken or what was proposed would be likely to involve serious consequences for the patient. Before providing the treatment, the NHS body had to instruct an independent mental capacity advocate (an IMCA) to represent the person, although treatment which was urgently needed could be provided even though it had not been possible to appoint an IMCA. In providing treatment, the NHS body had to take into account information provided or submissions made by the IMCA.
- The provisions of sections 15 to 17 of the MCA 2005 gave the court power to make decisions about personal welfare and to make declarations and orders in respect of a person who lacked capacity. Section 15 dealt with declarations, including declarations as to the lawfulness or otherwise of any act which had been or was to be done. Section 16 enabled the court, by making an order, to make personal welfare decisions for a person without capacity, and, by section 17, the Court’s power in that regard extended to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the patient.
- Section 16(3) made it clear that the court’s powers under section 16 were subject to the provisions of the MCA 2005 and, in particular, to section 1 and to section 4. What governed the court’s decision about any matter concerning the patient’s personal welfare was therefore the patient’s best interest. Section 42 provided for the Lord Chancellor to prepare and issue codes of practice on various subjects. Before preparing a code, the Lord Chancellor had duties to consult, and a code would not be issued unless it had been laid before both Houses of Parliament in accordance with section 43(2).
- Section 42(4) imposed a duty on someone acting in a professional capacity in relation to a person who lacked capacity to have regard to any relevant code. Section 42(5) provided that if it appeared to a court conducting any criminal or civil proceedings that a provision of a code, or a failure to comply with a code, was relevant to a question arising in the proceedings, the provision or failure had to be taken into account in deciding the question.
- The Law Commission had recommended (Law Commission Report No 231 on Mental Incapacity, published in 1995, particularly para 6.21) that the new statute should provide that the discontinuance of artificial sustenance to an unconscious patient with no activity in the cerebral cortex and no prospect of recovery should in every case require the prior approval of the court, unless an attorney or court-appointed manager had express authority to make the decision, albeit that flexibility for the future was to be incorporated by providing that the Secretary of State could, by order, replace the need for court approval with a requirement for a certificate from an independent medical practitioner duly appointed for that purpose. The Act had its basis in the Law Commission Report. However, it did not seem to have been thought appropriate to include in it a requirement of court approval.
- In Chapter 6 of the MCA 2005 Code of Practice (Code of Practice), health care staff were directed to work out carefully what would be in the person’s best interests, taking into account the views of people in various categories, and involving an IMCA where no one else was available to consult. Para 6.17 commended multi-disciplinary meetings as often the best way to decide on a person’s best interests. They brought together healthcare and social care staff to discuss the person’s options and would involve those who were closest to the person concerned. However, the paragraph stressed that final responsibility for deciding what was in the best interests of the person lay with the member of healthcare staff responsible for the person’s treatment, who should record their decision, how they reached it, and the reasons for it, in the patient’s clinical notes. As long as they had recorded objective reasons to show that the decision was in the person’s best interests, and the other requirements of section 5 of the Act were met, all healthcare staff taking actions in connection with the particular treatment would be protected from liability.
- The Code of Practice did not seem to be entirely consistent in its approach to involving the court in serious treatment decisions, chapter 6 asserting that the Court of Protection had to be asked to make certain decisions, and chapter 8 that certain decisions should be brought before a court.
- Section 5 of the Mental Capacity Act 2005 provided a general defence for acts done in connection with the care or treatment of a person, provided that the actor had first taken reasonable steps to establish whether the person concerned lacked capacity in relation to the matter in question and reasonably believed both that the person lacked capacity and that it would be in his best interests for the act to be done. However, it did not expressly refer both to acts and to omissions, the giving or withholding of treatment. The reason for that was that the fundamental question was whether it was lawful to give the treatment, not whether it was lawful to withhold it.
- The practice direction provided valuable procedural guidance but should not be interpreted as introducing a requirement that all cases where a decision was to be made about the withdrawal of CANH had to come before a court.
- Before taking the decision, the doctor was required to consult with the care team where there was one, and there had to be a reasoned opinion of at least one doctor acting as an independent consultant. The decision had to take into account any wishes previously expressed by the patient, in particular in the form of advance directives, the views of any person of trust that the patient might have designated and of the family or, failing that, of another person close to the patient. Reasons had to be given for any decision to limit or withdraw treatment, and the position had to be documented in the patient’s file.
- Guidance was continuing to evolve, and would simply give a broad indication of the nature and ambit of the document. It provided the doctor with a decision-making model, applicable where an adult lacked the capacity to decide about treatment and care. As part of the decision-making process, the doctor was to:
- make an assessment of the patient’s condition,
- consider what treatments were clinically appropriate and likely to benefit the patient,
- find out about any valid advance decision made by the patient or anyone who had legal authority to decide for him,
- as far as practical and appropriate, consult members of the healthcare team and those close to the patient and, when deciding about treatment, take their views into account,
- take steps towards the appointment of an IMCA where appropriate,
- attempt to resolve disagreements about what treatment and care would be of overall benefit to the patient, seeking legal advice on applying to court for an independent ruling if agreement was not reached.
- The guide required a record to be made of decisions about treatment, and of who was consulted in relation to the decisions. There was a section specifically addressing CANH, particularly stressing the need to listen to and consider the views of the patient and those close to them, and to explain the issues to be considered. The doctor was alerted to the need, in the event of disagreement about CANH, to ensure that the patient or someone acting on their behalf was advised on how to access their own legal advice or representation. Where the patient was not expected to die in any event in hours or days, but the doctor judged that CANH would not be of overall benefit to him, all reasonable steps had to be taken to get a second opinion from a senior clinician who was not already directly involved but who should examine the patient. If that was not practically possible in exceptional circumstances, advice from a colleague had to still be sought. As to patients in PVS or a condition closely resembling it, the guide said that the courts required that one approach them for a ruling. That was, however, modified in the Interim Guidance of December 2017 which proceeded upon the basis that there would be cases in which no court application was required.
- The December 2017 Interim Guidance started by identifying that a best interests’ decision could not be taken for the patient where he had made a valid and applicable advance decision to refuse treatment which covered CANH, or where an attorney appointed under a suitable lasting power of attorney made the decision. It then went on to say that where there was disagreement about best interests or the decision was finely balanced, an application should be made to court for a declaration as to whether CANH continued to be in the patient’s best interests. Then, dealing with the remainder of cases, the guidance set out the steps that should be taken to ensure that there was proper consultation prior to determining what was in the patient’s best interests. Those included ensuring that the RCP guidelines had been followed regarding assessment, with the assessment carried out by professionals with the appropriate training, that guidance in the Code of Practice, and from the BMA, RCP and/or GMC (various medical bodies in the UK which had produced codes relating to the withdrawal of life sustaining treatment) had been followed, that there had been formal, documented best interests’ meetings with those who cared for the patient and were interested in his or her welfare, and that an IMCA was consulted where necessary.
- The doctor was told to find out as much as possible about the patient’s values, wishes, feelings and beliefs. A second clinical opinion had to be sought from a consultant with experience of PDOC who had not been involved in the patient’s care and who should, so far as reasonably practical, be external to the NHS Trust/Clinical Commissioning Group (CCG); the consultant should examine the patient and review the medical records and the information that had been collected. There should be very detailed records kept, both a clinical record (covering many specified matters) and a record of discussions, meetings and so on.
- The Royal College of Physicians (RCP) document was lengthy, covering the diagnosis and management of patients with PDOC. There was a section devoted to assessment, diagnosis, and monitoring, in which the doctor was alerted to the challenges in making an accurate diagnosis and the need for evaluation by a multi-disciplinary team of expert clinicians, with the family and close friends of the patient having a key role, and was told that the diagnostic assessment process should follow a structured approach, elements of which were described in some detail. Another section of the document covered ethical and medico-legal issues, also in detail.
- The BMA guidance was similarly substantial, its aim being to provide a coherent and comprehensive set of principles which applied to all decisions to withhold or withdraw life-prolonging treatment. The Faculty of Intensive Care Medicine (FICM) and the Intensive Care Society (ICS) had also issued joint recommendations in the form of Guidelines for the provision of intensive care services; those included recommendations about end of life care.
- The Official Solicitor sought to invoke article 2 of the European Convention on Human Rights, 1950 (ECHR) (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) as further support for the assertion that court involvement was a necessary component in securing the patient’s rights. The jurisprudence of the ECHR made clear that if there was doubt as to the medical position or the patient’s best interests, there had to be a real remedy and, in cases such as the one before the Court, only a court application would reveal whether there was doubt. Without the Official Solicitor’s full participation in the proceedings, it was impossible to know whether or not there was any dispute about the medical evidence or about the deceased’s best interests, and as a result his article 6 rights were eroded to the point that his article 2 rights were afforded no effective protection.
- It was important to note some of the special features of PDOC cases which in the Official Solicitor’s submission necessitated court involvement. 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. He invited attention to examples of diagnostic errors in the decided cases where, for example, a patient had been thought to be in a permanent vegetative state but found later to be in a minimally conscious state. He submitted that, although decisions about withdrawing treatment had to be made in relation both to patients with PDOC, and patients in intensive care with life-limiting illnesses or injuries, the two categories of patient were different. The patient with PDOC would be clinically stable and would live for a prolonged period with only appropriate nursing care, hydration and nutrition, whereas the patient in intensive care would require more active medical intervention and support and would face death within hours or days. There was a particular concern about the morality of withdrawing CANH, which many saw as basic care, as opposed to certain other types of treatment.
- The instant case had to be a full recognition of the value of human life, and of the respect in which it had to be held. No life was to be relinquished easily. The starting point was a strong presumption that it was in a person’s best interests to stay alive. And yet there would come a time when life had to be relinquished because that was in the best interests of the patient. The situation of the deceased, and the ordeal through which his family had been going, served as a solemn reminder of how illness would confront any one at any time and of the difficulties that faced the patient, his family, and the medical staff whose job it was to do the best that they could for them.
- The questions for the Court were questions of law, but behind the questions of law lay moral, ethical, medical and practical issues of fundamental importance to society. The weight of that consideration anchored the legal decisions which the Court would make. Before turning to the central questions in the case, it was worth restating the basic position with regard to medical treatment, because it was upon that foundation that everything else was built. Although the concentration was upon the withdrawal of CANH, it had to be kept in mind that the fundamental question facing a doctor, or a court, considering treatment of a patient who was not able to make his or her own decision was not whether it was lawful to withdraw or withhold treatment, but whether it was lawful to give it. It was lawful to give treatment only if it was in the patient’s best interests. Accordingly, if the treatment would not be in the patient’s best interests, then it would be unlawful to give it, and therefore lawful, and not a breach of any duty to the patient, to withhold or withdraw it. If a doctor carried out treatment in the reasonable belief that it would be in the patient’s best interests, he or she would be entitled to the protection from liability conferred by section 5 of the MCA 2005 on acts in connection with care or treatment. It was also important to keep in mind that a patient could not require a doctor to give any particular form of treatment, and nor could a court.
- The Act made provision for decisions to be taken on behalf of those who lacked capacity, based upon what was in their best interests, without involving a court. By section 5, subject of course to the impact of any relevant lasting power of attorney or advance decision to refuse treatment, a clinician who treated a patient in accordance with what he reasonably believed to be the patient’s best interests did not incur any liability, in relation to the treatment, that he would not have incurred if the patient had had capacity to consent and had consented to it. Provision was made for the court to make decisions about personal welfare where necessary, but the Act did not single out any sub-class of decisions which had always been placed before the court, and there was no requirement for the Official Solicitor to be involved in best interest decisions relating to serious medical treatment.
- In contrast to the statute itself, the Mental Capacity Act 2005 Code of Practice did speak of applications to court in cases such as the one before the Court, but was contradictory in what it said about them. Paras 5.33 and 5.36 spoke in terms of an application being made if there was any doubt or dispute about the doctor’s assessment of the patient’s best interests. Although para 6.18 suggested that the court had to make/had to be asked to make the decision about withholding or withdrawing artificial nutrition and hydration from a patient in PVS, that statement seemed to have been derived from the case law, which dealt only in terms of good practice, not of legal obligation. And paras 8.18 and 8.19, to which para 6.18 invited reference, said that an application “should” be made to the court and that “as a matter of practice” such cases “should be put to the Court of Protection for approval”, referring to a “case law requirement to seek a declaration.
- A Code in those rather ambiguous terms, plainly attempting to convey what the cases had so far decided, could not extend the duty of the medical team beyond what the cases did in fact decide was incumbent upon them. Whatever the weight given to the Code by section 42 of the MCA 2005, it did not create an obligation as a matter of law to apply to court in every case.
- Practice Direction 9E which accompanied the Court of Protection Rules 2007 said that decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a persistent vegetative state or a minimally conscious state “should be brought to court”. It was understandable that the ad hoc Rules Committee decided that, in so far as the practice direction purported to direct which cases had to be brought to court, it went beyond its proper scope; a practice direction could not establish a legal obligation when none existed already. In any event, as no equivalent practice direction accompanied the Court of Protection Rules 2017, it was not necessary to delve into the matter further. No requirement to apply to court could be found in the post-MCA 2005 case law either.
- The next question was whether the ECHR generated a need for an equivalent provision to be introduced. The answer was a clear no. The ECHR had repeatedly set out certain factors that it considered relevant to the question of administering or withdrawing medical treatment. The first of those factors was the existence in domestic law and practice of a regulatory framework compatible with the requirements of article 2, that a prescribed procedure was required. However, there too had provisions designed to protect the human rights of patients and their families, and the Court had no difficulty in viewing the combined effect of the MCA 2005, the Mental Capacity Act Code, and the professional guidance, particularly that emanating from the GMC, as a regulatory framework.
- The basic protective structure was established by the MCA 2005. An advance decision about life-sustaining treatment could be taken in accordance with sections 24 to 26 and would be respected. Similarly, a proper role was established for lasting powers of attorney by section 9 and the other sections associated with it. Where the decision was taken by a doctor, section 5 established the conditions that had to be satisfied if the doctor was to be protected from liability. It directed the focus firmly to the best interests of the patient, and that imported the provisions of section 4 which included taking into account the perspective that the patient would have on the decision if he had capacity and the views of those with an interest in the patient’s welfare.
- Section 4(5) of the MCA 2005 imposed the safeguard that the person making the decision could not be motivated by a desire to bring about his death. Section 37 made provision for an IMCA to represent the patient where appropriate, and sections 15 to 17 ensured that application could be made to court for a decision about the patient’s welfare where necessary. Notwithstanding the contradictions in it, the Code contained valuable guidance, and regard had to be had to it by virtue of section 42. The passages that the Court referred to earlier were only a small fraction of the Code but it would be noted from them that, for example, it commended multi-disciplinary meetings when making healthcare and treatment decisions, and spoke about recording decisions and the reasons for them. It also expressly provided that when making decisions regarding life-sustaining treatment, healthcare and social care staff should refer to relevant professional guidance.
- Given the statutory framework within which the GMC operated, the Court would single out its guidance to the medical profession as undeniably part of the established regulatory framework. It had provided its own individual guidance in 2010, and had joined with the BMA and RCP to provide supplementary Interim Guidance in 2017, with final guidance planned for 2018.
- The second of the factors to which consistent reference had been made by the ECHR was whether account had been taken of the patient’s previously expressed wishes and those of people close to him, as well as the opinions of other medical personnel. The MCA 2005 required that to happen, and was reinforced by the professional guidance available to doctors.
- The third factor that featured consistently in the ECHR’s evaluation was the possibility of approaching the courts in the event of doubts as to the best decision to take in the patient’s interest and, of course, that possibility existed in the country. The opportunity to involve the Court was available whether or not a dispute was apparent, and was of particular benefit where the decision was a finely balanced one. No one would discourage an application in any case where it was felt that the assistance of the court would be valuable. And if a dispute had arisen and could not be resolved, it had to inevitably be put before the court.
- The ECHR was therefore required to consider the domestic provisions, even before they were bolstered by the MCA 2005, specifically focusing on the GMC guidance then in force. The ECHR proceeded upon the basis that article 2 imposed positive obligations on the State to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives, yet no suggestion was made that such regulations were lacking in the United Kingdom. The argument that there was insufficient protection because a doctor might decide to withdraw CANH without being under an obligation to obtain the approval of the court was expressly rejected.
- The Instant Court observed that neither a competent nor an incompetent patient could require a doctor to give treatment that the doctor considered was not clinically justified, thus no difference of treatment arose. In so far as a competent patient was able to participate in the consultation process and an incompetent patient was not, the court said that the patients were not in a relatively similar situation. It remained to stand back from that intense focus upon the law, in order to consider the issue in its wider setting. In so doing, it was necessary to exercise the restraint that was required of a court when it ventured into areas of social and ethical uncertainty, and especially when it did so in the abstract, setting out views which would be of general application rather than resolving a clearly defined issue of law or fact that had arisen between the litigants appearing before it.
- Judges had developed experience in dealing with life and death decisions, but it was experience of a different sort from that of the medical team which actually treated the patient, and of the professional bodies responsible for regulating and guiding them, and that limitation had to be recognised and taken into account. It had been of particular assistance to have, from the written submissions of the intervenors, an insight into the practicalities of caring for patients who were critically ill, and also some idea of the large number of patients who might be affected in some way by the decision in the instant case. It was important to acknowledge that CANH was more readily perceived as basic care than, say, artificial ventilation or the administration of antibiotics, and withholding or withdrawing it could therefore cause some people a greater unease. However, it was decided that CANH was in fact to be seen as medical treatment. It was not easy to explain therefore it should not be treated differently from other forms of life-sustaining treatment.
- The BMA said, in the case of patients who had suffered a severe stroke, or were significantly cognitively impaired but conscious, or were suffering from a degenerative neurological condition or other condition with a recognised downward trajectory, decisions to withhold or withdraw CANH were made on a regular basis without recourse to the courts. The BMA could see no principled or logical reason for requiring court review in relation to patients with PVS and MCS but not for a patient with a different condition. Similarly, it could find no logical reason why one form of medical treatment, CANH, was treated differently from other forms of medical treatment such as artificial ventilation.
- Most decisions relating to medical treatment in the critical care setting, including as to whether life-sustaining treatment was withheld or withdrawn, had to be made without the participation of the patient. They were almost invariably taken on the basis of best interests and benefit, on the basis of consensual decision-making as between the clinical team and the patient’s family and carers. In that critical care setting, CANH was not considered differently from any other form of life-sustaining treatment. That was said to reflect the reality in critically ill patients that it was the withdrawal of invasive or non-invasive ventilation, vasoactive medical and renal replacement therapy, and the double effect from administration of medications to ensure patient comfort towards the end of life, that lead to the natural death of the patient, rather than cessation of CANH. It was likely, where CANH was withdrawn from a patient who was clinically stable but suffering from a prolonged disorder of consciousness, that death would result from the withdrawal of CANH, so to that extent there was a difference between the two groups of patients. However, once CANH was seen as medical treatment, there was a parallel between the cases.
- The Court had difficulty in accepting that there were readily apparent and watertight categories of patient, with PDOC patients clearly differentiated from, say, patients with a degenerative neurological condition or critically ill patients, in such a way as to justify judicial involvement being required for the PDOC patients but not for the others. The dilemmas facing the medical team and those close to the patient would well be very similar in each of those cases. It would be a mistake to think, for example, that the intensive care doctor simply did whatever was necessary to stop the patient dying, no matter what the cost to the patient, any more than did the doctor looking after a PDOC patient or the stroke patient or the patient with Huntington’s disease. In all of those cases, the medical team took their decisions as to treatment, whether it was CANH, or some other form of treatment such as artificial ventilation or cardio-pulmonary resuscitation or the administration of antibiotics, by determining what was in the patient’s best interests. In so doing, the doctors would often have difficult diagnoses to make, reaching a prognosis would be challenging, and the evaluation of the patient’s best interests would not be entirely straightforward. All those tasks would call for considerable professional skill and individual judgement.
- Quite apart from the pressure that court cases placed on the overstretched resources of NHS trusts, they added greatly to the strain on families facing acutely distressing decisions. In a case where all the proper procedures had been observed and there was no doubt about what was in the best interests of the patient, there was much to be said for enabling the family and the patient to spend their last days together without the burden and distraction, and possibly expense, of court proceedings.
- Medical science, continually developing, could not always provide answers, and greater knowledge could produce yet more questions. Developments in that area of medicine included the ability to differentiate between vegetative state and minimally conscious state, and improvement in the outcomes for some individual patients. Those changes inevitably created new challenges of diagnosis and management, new uncertainties, for the medical profession. The situation was not, however, on a par with that which faced the House of Lords in the Bland case. The survival of patients such as Anthony Bland, then so unprecedented, was now a well-established feature of medical practice. The documentation supplied to the instant Court showed that the difficulty that there was in assessing the patient and in evaluating his or her best interests was well recognised. The process was 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 was a crucial part of the scrutiny that was essential for decisions of that sort, and the guidance set parameters which should ensure that it was an effective check, in that the clinician who provided the second opinion had (so far as reasonably practical in the circumstances of the case) been external to the organisation caring for the patient, and was 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 was in the best interests of the patient. Thus the interests of patients and their families were safeguarded, as far as possible, against errors in diagnosis and evaluation, premature decisions, and local variations in practice. If, at the end of the medical process, it was apparent that the way forward was finely balanced, or there was 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 could and should be made. As the decisions of the ECHR underlined, the possibility of approaching a court in the event of doubts as to the best interests of the patient was an essential part of the protection of human rights. The assessments, evaluations and opinions assembled as part of the medical process would then form the core of the material available to the judge, together with such further expert and other evidence as would need to be placed before the court at that stage.
- Having looked at the issue in its wider context as well as from a narrower legal perspective, the Court did not consider that it had been established that the common law or the ECHR, in combination or separately, gave rise to the mandatory requirement, for which the Official Solicitor contended, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH could be withdrawn. If the provisions of the MCA 2005 were followed and the relevant guidance observed, and if there was agreement upon what was in the best interests of the patient, the patient would be treated in accordance with that agreement without application to the court. The Court emphasised that, although application to court was not necessary in every case, there would undoubtedly be cases in which an application would be required (or desirable) because of the particular circumstances that appertained, and there should be no reticence about involving the court in such cases.
Relevance to Kenyan Situation
The Constitution of Kenya 2010 under Article 26 on right to life provides under sub Article 3 that a person is not to be deprived of life intentionally, except to the extent authorised by it or by any other written law. This raises questions as to whether the Constitution sanctions the formulation of a law legalizing the deprivation of life.
The right to life does not fall under the category of rights that cannot be limited as provided under Article 25 of the Constitution which are the freedom from torture and cruel, inhumane or degrading treatment or punishment, freedom from slavery or servitude, the right to a fair trial and the right to an order of habeas corpus.
Republic v Stephen Kiprotich Leting & 3 others – Criminal Case 34 of 2008
The Court in this case briefly stated that a person who commits euthanasia out of motives of mercy or compassion to alleviate suffering may, nevertheless, be guilty of murder, just as a person who kills in the ‘heat of the moment’ without prior planning may also be guilty of murder.
Unlike in some countries like Switzerland, euthanasia in its various forms is illegal in Kenya for instance section 225 of the Criminal Procedure Code, Cap 75 Laws of Kenya provides that any person who procures, counsels or aids another to kill himself is guilty of a felony and liable to life imprisonment.
Kenyans, and Africans by extension, are confronted by this complex issue of ‘voluntary dying’ or euthanasia, as it’s commonly called in some countries. Some claim it is taboo and would invite the wrath of ancestors or the kin would be haunted by the ghost and spirit of the dead. Take, for instance, the slow death of former South Africa President, Nelson Mandela. For close to five months after doctors declared him to be in a vegetative state and with no chance of surviving, with his family debating whether or not to switch off the life support machine.
These, among other related incidents, have sparked a debate about switching off life support machines, Advance Directives (Wills of sorts, common in the US, in which patients, upon being admitted, direct doctors on what to do to them in the event they don’t respond to medication) and assisted deaths.