Supreme Court rejects appeal in case of brain-injured man
ALANDMARK Supreme Court ruling means legal permission will no longer be required in all cases before food and liquid can be removed from people in a permanent vegetative state.
If families and doctors are in agreement, it will not be necessary to apply to the Court of Protection to remove feeding tubes.
The Supreme Court ruled it has not been established by either common law or the European Convention on Human Rights that there is a “mandatory requirement” to involve the court to decide the best interests of every patient.
The ruling is focused on people who are in a “prolonged disorder of consciousness” (PDOC) and concerns whether “clinically assisted nutrition and hydration” (CANH) can be withdrawn.
PDOC is a term used to describe people who are in a permanent or persistent vegetative state (PVS) and those in a minimally conscious state (MCS).
It can take months or even years for the Court of Protection to make a judgement.
The NHS has identified three main ways disorders of consciousness can come about:
■ A traumatic brain injury – “such as an injury sustained during a car accident or a fall from a great height”;
■ a non-traumatic brain injury – where the injury is caused by a health condition, for example by a stroke; and
■ progressive brain damage – where a condition such as Alzheimer’s disease gradually damages the brain.
It is estimated around “24,000 people in the UK are in a persistent vegetative state or a minimally conscious state,” according to the BBC .
The case was triggered after a person known as Mr Y, described by the Supreme Court as an “active man in his fifties”, suffered a heart attack which led to “extensive brain damage due to lack of oxygen”.
Mr Y never regained consciousness and was kept alive by CANH.
His doctor concluded that “even if he were to regain consciousness, he would have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life”.
According to the judgement : “Mrs Y and their children believed that he would not wish to be kept alive given the doctors’ views about his prognosis. The clinical team and the family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.”
The NHS Trust sought a declaration from the High Court that it was not required to seek the court’s approval to remove the treatment keeping him alive and that it would not face civil or criminal liability.
The High Court declared in November 2017 it was not mandatory to seek court approval but granted permission to the Official Solicitor to appeal directly to the Supreme Court. In the intervening period Mr Y died.
People will not be stopped from making an appeal for treatment to continue.
The Supreme Court States in its explanatory note : “If it transpires that the way forward is finely balanced, there is a difference of medical opinion, or a lack of agreement from persons with an interest in the patient’s welfare, a court application can and should be made.”
Lady Black, who delivered the unanimous judgement on behalf of the Court, stated she “would emphasise 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 that appertain, and there should be no reticence about involving the court in such cases.”
NHS Choices states : “If a person is diagnosed as being in a permanent vegetative state, recovery is extremely unlikely but not impossible.”
Dr Peter Saunders, campaign director of Care Not Killing , described the ruling as “concerning and disappointing news, because it removes an important safeguard from those without a voice”.
He argued the Court of Protection “did not prevent clinically assisted nutrition and hydration or CANH being removed” but ensured “independent scrutiny of any application” because of the “emotional and financial pressure” families and doctors can face.
He said: “Once we accept that death by dehydration is in some brain-damaged people’s ‘best interests’ we are on a very slippery slope indeed. There is a clear difference between turning off a ventilator on a brain-dead patient and removing CANH from a braindamaged patient.
“PVS and MCS differ from conditions with a ‘downward trajectory’ because they are not progressive and do not in themselves lead inevitably to death. The Supreme Court has set a dangerous precedent.”
Natalie Koussa of Compassion in Dying said: “We welcome the Supreme Court’s decision today, which brings much needed clarity to doctors and loved ones of those who have sadly been left in a vegetative or minimally-conscious state following severe illness or injury. Today’s judgment is an important move towards more person-centred care, because it means that what’s best for the individual can be decided by their medical team and loved ones, and acted upon more quickly, rather than spending months or even years waiting for a court decision...
“The court’s decision today also recognises the fact that sometimes, sadly, it is in someone’s best interests to withdraw treatment. It will allow those closest to a person – their loved ones and medical team – to feel supported and empowered to make the right decision for the person, even when it is a difficult one...
“Whilst this judgment means that others in the same situation can now avoid court, cases will still go to court where a person in persistent vegetative or minimally conscious state had not set out their wishes for medical treatment and there is a dispute within or between family and medical team about whether CANH is in the best interests of the individual.”