M was in a minimally conscious state (MCS) as the result of Huntingdon’s disease. Her family, in complete agreement with the treating team responsible for her care, believed that it was not in her best interests to continue to receive clinically assisted nutrition and hydration (CANH) which was keeping her alive. This was supported by an external second opinion.
Court of Protection Practice Direction 9E (Applications Relating to Serious Medical Treatment) provides that decisions about the proposed withholding or withdrawal of CANH from a person in a permanent vegetative state (PVS) or MCS should be brought to court. Therefore M’s mother, somewhat unusually acting as M’s litigation friend instead of the official solicitor, applied to the court for a judicial determination ‘if required’ as to whether it was in M’s best interests for CANH to be withdrawn with the consequence that M would die.
After hearing evidence from M’s family, treating clinicians and an independent specialist in Huntington’s disease, the court was satisfied that it was no longer in M’s best interests for her to receive CANH and that it should be withdrawn and replaced with palliative care.
The court then went on to consider whether legal proceedings were necessary in a case such as this, where all parties are in agreement that withdrawal of CANH is in the patient’s best interests, having regard to Practice Direction 9E. This question was raised at the time the application was made.
The court concluded that there was no requirement in law for a decision to withdraw CANH to be taken by the court, where that decision is made in accordance with the relevant professional guidance (currently the GMC’s Good Medical Practice guidance, the BMA guidance ‘Withholding and Withdrawing Life-prolonging Medical Treatment’ and ‘End of Life Care’ and the Royal College of Physicians’ Guidance on Prolonged Disorders of Consciousness). The Mental Capacity Act (MCA) 2005 leads to no such requirement. A best interest decision to withdraw CANH can be taken pursuant to s.5 of the MCA without judicial involvement. Therefore, notwithstanding Practice Direction 9E, the decision about what was in M’s best interests was one that could lawfully have been taken by her treating clinicians, in consultation with her family, and a court application was not necessary.
The court acknowledged that court intervention may still be required in certain cases, for example, if there is disagreement between family members, or between the family and treating clinicians, as to whether the withdrawal of CANH is in the patient’s best interests.
The court determined that its conclusion did not in any way detract from the crucial importance of structured medical assessment in PVS/MCS cases (see Baker J in W -v- M and Newton J in St George’s Healthcare NHS Trust -v- P & Q  EWCOP 42) and the obvious need for expert second opinions in these cases.
This decision follows obiter comments made by the Court of Appeal in the recent case of Briggs that cases concerning the withdrawal of CANH from patients in PVS or MCS need only be brought to the court if there is disagreement or doubt as to whether it is in the patient’s best interests.
Earlier this year the Court of Protection Rules Committee recommended removing the current Practice Direction and the setting up of a multidisciplinary working group to formulate guidance about the circumstances in which cases should and should not be taken to court. Therefore Practice Direction 9E is likely to be withdrawn and new guidance issued in its place.
The decisions in M -v- A Hospital and Briggs provide some clarity about the circumstances in which a court application is necessary in these cases. An application to court is not required for withdrawal of CANH from PVS/MCS patients unless there is doubt or disagreement as to whether that withdrawal is in the patient’s best interests. It remains to be seen if there will be any appeal of this decision by the official solicitor who, having been invited to make written submissions, argued that application to court should be made unless a valid advance decision was in place.
It is also important that all of the same assessments that would be undertaken if an application was to be made to court are still completed e.g. Sensory Modality Assessment and Rehabilitation Technique (SMART), expert second opinion etc. If clinicians are in any doubt they should seek legal advice. The court noted ‘every case is intensely fact specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so.’