In a Supreme Court decision, which will pave the way for decisions to be made in what is agreed by everyone as a very difficult situation, it was announced that where a person is unable to make their own choices, the doctors and families can do so without recourse from the judicial system.
The case involved a man in his 50’s who, as a result of a cardiac arrest, was reliant on clinically assisted nutrition and hydration (CANH) to survive. His primary consultant and another doctor agreed that if he was to regain consciousness he would be severely disabled and need 24 hour care, his family were of the opinion that he would not want to live like that as he had always been very active.
The NHS sought clarification that as there was complete agreement between health professionals and the family they did not have to ask the court’s permission to withdraw treatment. Despite the fact that the man had died the official solicitor decided to proceed with the case, they were acting on behalf of the man and also sought clarification to prevent the situation happening to someone else. The Supreme Court agreed that the issue required resolution and heard the appeal.
The Court considered the issue to be whether it would be lawful to give treatment to someone who could not express their own wishes, the doctor has to consider what is in the mans best interest, to treat or not to treat, and if acting in that belief would be protected from liability by sec 5 of the Mental Capacity Act.
This Act enables decisions to be made in consultation with families and other doctors, along with any views expressed by the patient previously. In any event there is the right to seek judicial review, as detailed in the European Convention on Human Rights Article 2.
The Court decision enables decisions to be made more timely and with less stress for all concerned when there is agreement on withdrawing or giving treatment, however it acknowledged that it is not an easy decision and if there was disagreement among the interested parties judicial opinion should be sought.