SUPREME COURT CLARIFIES POSITION ON END OF LIFE DECISIONS

Andrew Hannam - Enable LawThe Supreme Court has today (Monday, 30 July) handed down a Judgment that means that legal permission will no longer be required from the Court of Protection to end the provision of artificial nutrition and hydration treatment for patients in a long-term permanent vegetative state.

Traditionally, the Court of Protection’s approval had always been required when a decision has been sought to withdraw nutrition and hydration, such that an incapacitated patient would inevitably die. There have been a number of cases which have set out very strict guidelines which need to be complied with before the Court would allow such a step to be taken.

There are competing arguments in favour and against the need for Court involvement in such decisions. There have been cases where families and treating clinicians have agreed that withdrawal of such support would be appropriate but on referral to the Court of Protection and involvement of the Official Solicitor further investigation has demonstrated that the patient did not fully meet the definition of someone in a permanent vegetative state. In those cases the Court did not conclude that it would be appropriate to withdraw nutrition and hydration.

On the other hand, there are a large number of families in this position each year and if there is a genuine and fully informed consensus between family and treating clinicians this decision is likely to help mitigate the trauma associated with a decision which nobody would ever wish to have to make.

Andrew Hannam, a partner with Enable Law and a specialist in healthcare decisions in the Court of Protection, commented that:

“While this decision will enable families and clinicians to work closely together, it arguably requires even greater sharing of information by clinicians with families. Families are entitled to know all that they consider they reasonably need to know about their loved one’s condition.  It is not a matter for the clinicians to restrict the information to what they consider to be in the family’s interests to share but rather the filter should be one applied by the family themselves.  To create an environment where there is a genuine and fully informed consensus Trusts should ensure that families have access to an independent and specially trained mediator to ensure that there is the required level of understanding to make such a fundamental decision.”