An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant)
|Cite as:|| UKSC 46|
|Hand-down Date:||July 30, 2018|
REPORTING RESTRICTIONS APPLY TO THIS CASE
Trinity Term  UKSC 46 On appeal from:  EWHC 2866 (QB)
An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants) before
Lady Hale, President Lord Mance Lord Wilson
Lady Black JUDGMENT GIVEN ON 30 July 2018 Heard on 26 and 27 February 2018 Appellant (Mr Y) First & Second
Respondents (NHS Trust) & (CCG)
Richard Gordon QC
Vikram Sachdeva QC Catherine Dobson (Instructed by Hempsons Solicitors) Fiona Paterson
(Instructed by The Official Solicitor)
Third Respondent (Mrs Y)
Victoria Butler-Cole (Instructed by Bindmans LLP) Interveners (The Intensive Care Society & The Faculty of Intensive Care
Medicine) (written submissions only)
Alexander Ruck Keene Annabel Lee (Instructed by Bevan Brittan LLP) Intervener (British Medical Association) (written submissions only)
Katharine Scott (Instructed by Capital Law Limited) Intervener
(Care Not Killing Alliance Ltd)
(written submissions only)
Charles Foster (Instructed by Barlow Robbins Solicitors
(Guildford)) LADY BLACK: (with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agree)
The question that arises in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement.
The term "prolonged disorder of consciousness" encompasses both a permanent vegetative state (sometimes referred to as a persistent vegetative state, and often shortened to "PVS") and a minimally conscious state (or "MCS"). "Prolonged disorder of consciousness" is commonly shortened to "PDOC" and that practice is followed in this judgment. Clinically assisted nutrition and hydration is now referred to as "CANH", although it has been variously described in the past.
Mr Y was an active man in his fifties when, in June 2017, he suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage. He never regained consciousness following the cardiac arrest. He required CANH, provided by means of a percutaneous endoscopic gastrostomy, to keep him alive. The month after his cardiac arrest, Mr Y was admitted to the regional hyper-acute rehabilitation unit under the control of the first respondent NHS Trust so that his level of awareness could be assessed. In late September, 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 to care for him for the rest of his life. A second opinion was obtained in October, from a consultant and professor in Neurological Rehabilitation, who considered that Mr Y was in a vegetative state and that there was no 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 Mr Y's best interests for CANH to be withdrawn, which would result in his death within two to three weeks.
On 1 November 2017, the NHS Trust issued an application in the Queen's Bench Division of the High Court 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
On 10 November, O'Farrell J  EWHC 2866 (QB) refused the Official Solicitor's renewed application for the case to be transferred to the Court of Protection. She considered that it would have been appropriate to transfer the case if the court were being asked to determine whether the withdrawal of treatment was in Mr Y's best interests, but that, in fact, the issue she had to determine was a purely legal issue. She concluded that it was not established that there was any common law principle that all cases concerning the withdrawal of CANH from a person who lacks capacity had to be sanctioned by the court. In her view, at para 52, "where the clinicians have followed the Mental Capacity Act 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." Such was the situation in Mr Y's case, she considered, and accordingly she 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."
The judge granted the Official Solicitor permission to appeal and certified the case, pursuant to section 12 of the Administration of Justice Act 1969, as appropriate for an appeal directly to the Supreme Court.
In case the result of the appeal was that proceedings should be brought in the Court of Protection, the judge gave directions so that any such proceedings could progress without delay. So it was that the Official Solicitor obtained a further expert report, from a different neuro rehabilitation consultant. However, although CANH had been continued pending the appeal, on 22 December 2017 Mr Y died, having developed acute respiratory sepsis. The expert instructed by the Official Solicitor could only base his report upon documentation, including Mr Y's medical records. In the report, he referred to the difficulty in diagnosing vegetative and minimally conscious states, and gave his opinion that, had Mr Y survived, further assessments,
over a longer period of time, would have been required in order to reach a reliable conclusion that he was in a permanent vegetative state.
Notwithstanding that, in view of Mr Y's death, the proceedings could no longer serve any purpose for him and his family, this court determined that the appeal should go ahead, because of the general importance of the issues raised by the case. Accordingly, the court has received full argument from Mr Gordon QC and Ms Paterson for the Official Solicitor, and Mr Sachdeva QC and Ms Dobson for the first two respondents (the NHS Trust which manages the regional hyper-acute rehabilitation unit at which Mr Y was a patient until he was discharged to a nursing home and the Clinical Commissioning Group which funded the nursing home). Written submissions were permitted from the four intervenors. Mrs Y understandably felt unable to participate in the proceedings at what is an exceptionally sad and difficult time for her and her family.
The opposing arguments in brief summary
I will look at the Official Solicitor's case in detail later, but it may help to introduce the issues now by means of the briefest of summaries. The Official Solicitor submits that, in every case, court approval must be sought before CANH can be withdrawn from a person with PDOC, thus ensuring that the patient's vulnerable position is properly safeguarded by representation through the Official Solicitor, who can obtain independent expert medical reports about his condition and prognosis, and make submissions to the court on his behalf if appropriate. The Official Solicitor derives this requirement essentially from the common law and/or the European Convention on Human Rights (ECHR), in particular article 2 and article 6. In his submission, his position finds support in the Mental Capacity Act Code of Practice, issued on 23 April 2007 pursuant to section 42(1) of the Mental Capacity Act 2005 ("MCA 2005"). He submits that it is irrelevant that neither the MCA 2005 nor the Court of Protection Rules specifically impose the requirement for which he contends.
The first and second respondents disagree, submitting that neither the common law nor the ECHR imposes a universal requirement to obtain court approval prior to the withdrawal of CANH.
The case law preceding the MCA 2005
The MCA 2005 was a watershed in the law relating to people who lack 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 has 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 Mr Y must commence with the pre-MCA 2005 cases, and I turn first to two centrally important House of Lords decisions, In re F (Mental Patient: Sterilisation)  2 AC 1 and Airedale NHS Trust v Bland  AC 789.
In In re F (Mental Patient: Sterilisation), the House of Lords considered whether the court had jurisdiction to grant a declaration that it would not be unlawful for a sterilisation operation to be carried out...
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