Landmark ruling on end of life care

21 September 2017

The High Court has handed down a landmark decision on end of life care: Mr Justice Peter Jackson held that in certain circumstances a Court application may not be necessary when deciding to withdraw clinically assisted nutrition and hydration (CANH).

The case focused on the care of patient "M", who suffered from Huntington's disease. M was bed-ridden, in a minimally conscious state and fed through a tube. Mr Justice Peter Jackson was asked to consider whether Court approval was necessary to withdraw M's CANH, in circumstances where both her family and the doctors involved in her care agreed that withdrawal was in M's best interests.

Until now, cases like this would have required Court approval as well as the agreement of the patient's family and medical professionals. A distinction has traditionally been drawn between the withdrawal of life-saving treatments, for example dialysis, which did not require Court approval, and the withdrawal of food and water, which did. The distinction appears to have been based on the almost emotional significance assigned to the idea of withdrawing sustenance from an individual.

In his judgment, Jackson J commented that the decision about what was in M's best interests is one that "could lawfully have been taken by her treating doctors, having fully consulted her family and having acted in accordance with the Mental Capacity Act and with recognised medical standards". A key factor in the decision appeared to be a desire to avoid the delay and cost incurred in seeking Court approval; Jackson J commented that even in cases such as M's, where the patient's family and her doctors were in agreement, the legal costs of bringing the case to Court had reached almost £30,000.

The decision has received praise from some, who describe it as a "helpful step towards a clearer, more person-centred view of end-of-life care" (Sarah Wootton, chief executive of Compassion in Dying). Indeed, it is hard to imagine circumstances where a Court might have reached a different view from the patient's family and treating clinicians, arguably those best placed to determine what is in the patient's best interests. Jackson J did make clear that in certain circumstances a Court application would be appropriate, stating that: "The Court is always available where there is disagreement, or where it is felt for some other reason that an application should be made"; but he anticipated that such applications will be rare.

It is expected that the Official Solicitor, appointed to act on behalf of patients such as M, will appeal the decision. 

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