NHS Trust v Y & Anor

Withdrawal of clinically assisted nutrition and hydration from a person lacking capacity may be lawful where continuation is not in that person’s best interests. The Mental Capacity Act 1985 does not require every such decision to be sanctioned by the Court of Protection. Court proceedings remain the general practice, particularly where there is disagreement, doubt about diagnosis or prognosis, or concern about the best-interests process. Where clinicians have complied with the statutory framework and good medical practice, the family and clinical team agree, and no material concern is identified, a court application is not mandatory.

The Trust sought a declaration under CPR Part 8 concerning the proposed withdrawal of clinically assisted nutrition and hydration from Mr Y, who lacked capacity and was in a prolonged disorder of consciousness following severe hypoxic brain injury. His clinicians and family agreed that continued treatment was not in his best interests. The Official Solicitor opposed the declaration, arguing that common law, Articles 2 and 6 of the Convention, and the need for independent scrutiny required an application to the Court of Protection. The central issue was whether court sanction was legally mandatory in an agreed case.

1. Declaration granted. It was not mandatory to bring before the Court the withdrawal of CANH from Mr Y where the clinical team and his family agreed that continued treatment was not in his best interests.
2. The Mental Capacity Act 1985 expressly permits acts and decisions to be made on behalf of a person lacking capacity by persons other than the court. Sections 1 and 4 provide the governing best-interests framework, and section 5 provides protection from liability where the statutory conditions are met. The Act does not require the court to determine the best interests of every person lacking capacity or every case involving life-sustaining treatment.
3. The statutory Code of Practice and Practice Direction 9E supported a general practice of bringing serious medical treatment cases before the Court of Protection, including withdrawal of artificial nutrition and hydration in cases involving PVS or minimally conscious states. They did not create substantive legal obligations. Practice Direction 9E was due to be removed.
4. Airedale NHS Trust v Bland established that withdrawal of CANH may be lawful where continuation is not in the patient’s best interests, but the observations favouring court applications were procedural practice rather than a rule that court sanction was legally necessary. R (Burke) v General Medical Council, Aintree University Hospital HS Trust v James, N v A Clinical Commissioning Group and Re M (Withdrawal of Treatment: Need for Proceedings) supported the conclusion that lawfulness did not depend on a court ruling in every case.
5. A court application would ordinarily be appropriate where there is disagreement or doubt concerning diagnosis, prognosis, the patient’s wishes, the best-interests process, or the proposed treatment. Those concerns were absent here. A declaration with general application, or a broad release from civil or criminal liability, was inappropriate.

The judgment records that an appeal was likely, but no appellate decision is stated.