The Supreme Court has upheld that clinically assisted nutrition and hydration (CANH) can be withdrawn from patients in a long-term permanent vegetative state without the approval of the Court of Protection when both family and doctors agree that the withdrawal of CANH is in a patient’s best interest - even though it will hasten their death. The case concerned a man in his fifties who had suffered a cardiac arrest leading to extensive brain damage because of a lack of oxygen. The medics treating him concurred that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for the rest of his life.
A permanent vegetative state is defined as more than six months if caused by a non-traumatic brain injury, or more than 12 months if it is caused by a traumatic brain injury.
Lady Black has ruled that the withdrawal of CANH for patients in a long-term permanent vegetative state is not a violation under the European Convention on Human Rights. However, she stressed that: “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”.
Buckles Private Client partner Karl Dembicki said: “The judgement raises ethical questions surrounding the withdrawal or refusal of medical treatment at the end of life - and the process required to make that decision. Many people view the provision of food and fluid by tube as part of basic care which ought to be rarely withdrawn. English law views artificial hydration and nutrition as a medical treatment and therefore something that can be withheld or withdrawn if it is in the patient’s best interests. The judgement upholds that the court does not need to grant approval for the withdrawal of CANH when a person is in a permanent vegetative state - providing the patient’s family and clinicians agree that it is in their best interests. Some may welcome that as the removal of a bureaucratic and intrusive procedure at an emotionally sensitive time, others will view it as an erosion of an important safeguard and a step towards assisted suicide.”
Fortunately, the Mental Capacity Act 2005 ensures that people are given a rightful say in their own decisions when they may be unable to make such a decision themselves through either a Lasting Power of Attorney for Health and Welfare (LPA) or an Advance Decision previously called a Living Will.
An LPA for Health and Welfare is a legal document authorising people known as attorneys to make decisions regarding your medical care and treatment in your best interests, should you lack mental capacity. You can authorise your attorneys to make decisions about refusing or withdrawing life-sustaining treatment which includes CANH. It is a very powerful document and therefore vital that you take advice from a solicitor so that you fully understand the authority you are giving to your attorneys. We can help you provide guidance to your attorneys so that your wishes are clearly known. Karl believes that a well drafted LPA for Health and Welfare helps to strike a happy balance between cherishing life and accepting the inevitability of death and provides valuable assistance to attorneys, allowing them to make known your wishes when you can’t.
An Advance Decision to refuse medical treatment is a legal document which may contain a statement to refuse medical treatment thought necessary to sustain life. To be valid it needs to be in writing, signed and witnessed. It must also contain the statement that the decision is to stand “even if life is at risk”. However, you should be aware that if a person creates the document when they lack mental capacity, or the decisions made are not applicable to the situation, then it does not bind the healthcare team.
Buckles has vast experience in drafting Wills and Lasting Power of Attorney documents. We can supply a free Advance Directive (also known as a Living Will) on request. Our team also includes a Head of Court Protection who can help with related matters.