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

Clinically assisted nutrition and hydration is medical treatment. Treatment of an adult who lacks capacity is lawful only when it is in that person’s best interests. If continued treatment is not in those interests, it may lawfully be withheld or withdrawn.

Neither the common law, the Mental Capacity Act 2005 nor the European Convention on Human Rights requires court approval before withdrawal in every case involving a prolonged disorder of consciousness. Where the statutory process and relevant professional guidance have been followed, and those concerned agree about the patient’s best interests, treatment may proceed without an application. The court can and should be approached where the decision is finely balanced, medical opinion differs, agreement is lacking or other circumstances create doubt.

Mr Y suffered extensive brain damage after a cardiac arrest. He remained unconscious and required clinically assisted nutrition and hydration. His family, treating clinicians and an independent consultant agreed that continued treatment was not in his best interests.

The NHS Trust sought a declaration that court approval was not mandatory where the clinical team and family agreed upon withdrawal. O’Farrell J granted that declaration in [2017] EWHC 2866 (QB). She certified a direct appeal under section 12 of the Administration of Justice Act 1969. Mr Y died before the appeal, but the Supreme Court heard it because of the issue’s general importance.

The central question was whether the common law or the European Convention on Human Rights required a court order before clinically assisted nutrition and hydration could be withdrawn from every person with a prolonged disorder of consciousness.

1. The appeal was dismissed unanimously. Lady Black delivered the judgment, with which Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed. Clinically assisted nutrition and hydration was medical treatment. The fundamental question was whether giving treatment was lawful, rather than whether its withdrawal was lawful. Treatment could be given to an adult lacking capacity only when it was in that person’s best interests. If it was not, giving it would be unlawful and withholding or withdrawing it would be lawful. A clinician acting in the reasonable belief that treatment was in the patient’s best interests received the protection afforded by section 5 of the Mental Capacity Act 2005.

2. The common law imposed no universal requirement for prior court approval. In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 and Airedale NHS Trust v Bland [1993] AC 789 treated an application as desirable good practice, not as a condition of lawfulness. They contemplated that experience and professional practice might eventually permit applications to be confined to cases of special need. The same understanding had been expressed in R (Burke) v General Medical Council [2006] QB 273.

3. The Mental Capacity Act 2005 established a best-interests regime in which most decisions could be made without judicial involvement, while preserving access to the Court of Protection. It contained no provision requiring every withdrawal decision concerning prolonged disorders of consciousness to be brought before the court. Ambiguous statements in the statutory Code of Practice could not enlarge the legal duty beyond the governing legislation and authorities. Nor could former Practice Direction 9E create a legal obligation where none otherwise existed.

4. The European Convention on Human Rights did not require universal judicial supervision. The Mental Capacity Act 2005, its Code and professional medical guidance together formed a regulatory framework capable of satisfying article 2. It required attention to the patient’s wishes, beliefs and values, consultation with those close to the patient, appropriate specialist assessment, an independent second opinion and access to a court where necessary. Article 6 was engaged by a genuine disagreement or disputed question, not by assuming a dispute in every case. The article 14 comparison with assisted dying failed because withdrawal of treatment was therapeutic abstention rather than an intentional act of taking life.

5. Where the Act and relevant professional guidance have been followed and there is agreement about the patient’s best interests, treatment may proceed without a court application. An application can and should be made where the decision is finely balanced, medical opinion differs, agreement is lacking or other circumstances create doubt. If a dispute cannot be resolved, it must be put before the court.

• United Kingdom Supreme Court: The court heard the appeal notwithstanding Mr Y’s death because the issue was of general importance. It unanimously dismissed the appeal and affirmed that no universal requirement for prior court approval existed: [2018] UKSC 46 .
• High Court, Queen’s Bench Division: O’Farrell J refused transfer to the Court of Protection and declared that court proceedings were not mandatory where the clinical team and family agreed that continued clinically assisted nutrition and hydration was not in Mr Y’s best interests: [2017] EWHC 2866 (QB) . She certified a direct appeal under section 12 of the Administration of Justice Act 1969.