The Supreme Court has given judgment in An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant) concerning whether it is necessary to go to Court in all cases involving the withdrawal of treatment from patients with a Permanent Disorder of Consciousness (encompassing both persistent/permanent vegetative states and minimally conscious states).
In a unanimous judgment, the Supreme Court has held that it is not necessary to go to Court in cases where there is no dispute within and between clinicians and the patient's family at the end of the medical process of diagnosis. The Court held that, if the provisions of the Mental Capacity Act 2005 are followed and the relevant guidance observed, particularly
(plus the Interim Guidance document produced in December 2017 by the GMC, BMA and RCP entitled “Decisions to withdraw clinically-assisted nutrition and hydration (CANH) from patients in permanent vegetative state (PVS) or minimally conscious state (MCS) following sudden-onset profound brain injury”)
and there is agreement from all concerned upon what is in the best interests of the patient, the patient may accordingly be treated/treatment withdrawn, without application to the court. A key feature of the guidance referred to in the judgment (and building consensus) is the importance of a second opinion from an independent (ideally external) clinician.
However, the Supreme Court emphasises that, although application to court is not necessary in every case, there will undoubtedly be cases in which an application will be required (or desirable) because of the particular circumstances involved. This includes, in particular, cases where it becomes apparent that the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare.
This judgment will be welcome for those in situations where there is consensus as to what is in the patient's best interests.
"If the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court."