An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) and another

The Supreme Court was asked whether court approval must always be obtained before clinically assisted nutrition and hydration (CANH) is withdrawn from a patient with a prolonged disorder of consciousness (PDOC), including permanent vegetative state (PVS) and minimally conscious state (MCS). The court held that neither the common law nor the European Convention on Human Rights (ECHR) requires a mandatory, universal requirement to bring every such case before a court.

The court construed the Mental Capacity Act 2005 (MCA 2005) and its Code, and reviewed leading authorities (In re F, Airedale NHS Trust v Bland, R (Burke) v GMC, Lambert v France and related Strasbourg jurisprudence). It concluded that Bland and related pre-Act decisions established a practice of seeking court guidance in sensitive cases rather than a legal duty to do so. The MCA 2005 provides a best-interests framework (not an obligatory litigation route) and the Code and professional guidance (GMC, BMA, RCP) supply safeguards including multidisciplinary assessment, second opinions, Independent Mental Capacity Advocate (IMCA) involvement and record-keeping.

The court emphasised that where clinicians follow the MCA 2005 and relevant guidance, and family and treating team agree that CANH is not in the patient’s best interests, CANH may be withdrawn without prior court approval; conversely, where there is doubt, dispute, or finely balanced issues, recourse to the Court of Protection is required.

This appeal arose from an application made by the treating NHS Trust in relation to Mr Y, a man who suffered catastrophic brain injury and remained unconscious, requiring CANH. The Trust sought declarations that it was not mandatory to seek court approval before withdrawing CANH from a PDOC patient where clinicians and family agreed it was not in the patient’s best interests, and that no civil or criminal liability would follow such withdrawal. At first instance O'Farrell J ([2017] EWHC 2866 (QB)) granted that declaration. The Official Solicitor, acting as Mr Y’s litigation friend, appealed directly to the Supreme Court. Mr Y died during the proceedings but the Supreme Court proceeded to determine the general legal question.

The issues for the court were: (i) whether domestic common law or the MCA 2005 imposes a legal obligation to obtain prior court approval in every case before CANH can be withdrawn from a PDOC patient; (ii) whether the ECHR (in particular articles 2 and 6) requires mandatory judicial oversight in all such cases; and (iii) what role the MCA Code and professional guidance play in the legal framework and protection of vulnerable patients.

The Supreme Court reviewed pre-Act jurisprudence (In re F; Bland) and post-Act authorities (R (Burke) v GMC; Aintree; In re M; Briggs and Briggs (Court of Appeal obiter)), and Strasbourg case-law (Lambert v France; Burke v United Kingdom; Gard; Afiri and Biddarri). It analysed the statutory provisions of the MCA 2005 relevant to best interests decision-making (including sections 1, 4, 5, 9, 11, 15-17, 24-26, 37 and 42) and the Code of Practice. The court concluded that Bland and In re F indicated that court involvement was recommended as good practice in sensitive cases but did not create a universal common law requirement. The ECtHR decisions show that a State may meet article 2 protection requirements through a regulatory framework that includes: consideration of the patient’s wishes and those close to them, clinical and independent opinion, and access to the courts where there is doubt.

Accordingly, the court held that where clinicians follow the MCA 2005, the Code and recognised professional guidance (including multidisciplinary assessment, second clinical opinions, IMCA involvement where appropriate, and careful record-keeping), and clinicians and family are in agreement, withdrawal of CANH from a patient with PDOC does not require mandatory prior court approval. However, if there is any dispute, doubt or finely balanced question about diagnosis, prognosis or best interests, the Court of Protection should be asked to decide. The judgment stressed the need to avoid unnecessary litigation and delay, while recognising that court oversight remains essential in appropriate cases.

Appeal dismissed. The Supreme Court held that neither the common law nor the ECHR requires a mandatory, universal obligation to seek prior court approval before withdrawing clinically assisted nutrition and hydration from a patient with a prolonged disorder of consciousness. Where the Mental Capacity Act 2005, its Code and relevant professional guidance are followed and clinicians and family agree that withdrawal is in the patient’s best interests, withdrawal may lawfully proceed without court sanction; where there is doubt, dispute or finely balanced issues, application to the Court of Protection is required.

Application heard in the Queen's Bench Division, O'Farrell J granted the declaration ([2017] EWHC 2866 (QB)). The Official Solicitor obtained permission to appeal and the case was certified under section 12 of the Administration of Justice Act 1969 for a direct appeal to the Supreme Court. The Supreme Court heard the appeal and dismissed it.