XY (withdrawal of treatment)

When deciding whether to withdraw life-sustaining treatment for a person lacking capacity, the court must assess best interests from the patient’s perspective and consider welfare broadly, the treatment and its prospects, the likely outcome, wishes and feelings, beliefs and values, and views of carers and others. Religious faith and family evidence are important but not conclusive. Past beliefs may not determine what the patient would want in circumstances she could not have anticipated. A careful first-instance evaluation of conflicting clinical and family evidence will not justify permission to appeal where it was plainly open on the evidence. The safeguards under the Mental Capacity Act 2005, the Code of Practice and professional guidance may satisfy Convention requirements. Treatment may be withdrawn where its continuation is futile and not in the patient’s best interests.

XY suffered cardiac arrest followed by severe hypoxic-ischaemic brain damage. She remained in a prolonged disorder of consciousness at the lowest end of the spectrum, receiving clinically assisted nutrition and hydration and ventilatory support. The hospital Trust applied to the Court of Protection for declarations concerning capacity and the lawfulness of withdrawing life-sustaining treatment. Arbuthnot J found that XY lacked capacity, had no realistic prospect of recovery, and that withdrawal was in her best interests and proportionate. A, supported by family evidence, challenged the medical assessment of XY’s responsiveness and relied on her religious faith, values and presumed wishes. The Court of Protection refused permission to appeal. The central issue before the Court of Appeal was whether there was a real prospect that the best-interests assessment was legally or evidentially wrong.

Permission to appeal was refused. Baker LJ gave the judgment, with Phillips LJ agreeing.

1. Appellate threshold. An appeal requires a decision that was wrong or unjust because of a serious procedural or other irregularity. Permission requires a real prospect of success or another compelling reason. The other grounds, including the Convention challenges, disclosed no such prospect.
2. Evidence and expert opinion. The first-instance judge carefully considered the family’s evidence about responsiveness. Her preference for the unanimous clinical and nursing evidence, supported by CT, EEG and expert evidence, was plainly open to her. There was no obligation for the court to obtain a further medical opinion where A had been given the opportunity to instruct an expert and had done so. There was no basis to doubt that expert’s independence or objectivity.
3. Best interests. Sections 1(5), 4(2), 4(6) and 4(7) of the Mental Capacity Act 2005 required consideration of all relevant circumstances, including XY’s wishes and feelings, beliefs and values, and the views of persons concerned for her welfare. Applying Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591, the assessment was patient-centred and holistic. Beliefs and values were important but remained one factor in the overall evaluation. The judge was entitled to doubt what XY would have wanted in circumstances she could not have envisaged, and to find that the family’s views were outweighed by the medical evidence.
4. Outcome. The evidence showed severe and deteriorating brain damage, no awareness, no realistic prospect of recovery and no clinically appropriate further treatment. Continued treatment was futile, and the judge was entitled to find that withdrawal was in XY’s best interests, proportionate and lawful. A court cannot compel a doctor to provide treatment contrary to professional judgment.

The timetable in paragraphs 3 and 4 of the order was varied so that treatment was to be withdrawn no later than 6 December 2024, subject to further issues being referred to Arbuthnot J.

• Court of Appeal (Civil Division). In [2024] EWCA Civ 1466, the court refused A’s application for permission to appeal and varied the implementation timetable.
• Court of Protection. Arbuthnot J declared that XY lacked capacity and that withdrawal of clinically assisted nutrition and hydration and ventilatory support was lawful and in her best interests. Permission to appeal was refused at first instance.