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End of life: the new law
On the evening of 1st October 2018, 39 Essex Chambers convened a panel of experts, chaired by Lord Justice Peter Jackson, to discuss the implications of the recent ground-breaking Supreme Court decision in An NHS Trust v Y [2018] UKSC 46M, in which the unanimous decision of the court, with Lady Black delivering the only judgment, was that a court order does not always need to be obtained before clinically assisted nutrition and hydration (CANH), which is keeping alive a person with a prolonged disorder of consciousness (PDOC), can be withdrawn in circumstances where medical professionals and families are in agreement that such withdrawal would be in the best interests of the patient.
The eminent speakers consisted of Professor Lynne Turner-Stokes, who leads the Northwick Park Hospital Department of Palliative Care, Policy and Rehabilitation, Veronica English, the Head of Medical Ethics and Human Rights for the BMA, together with our very own Vikram Sachdeva QC and Victoria Butler-Cole.
Vikram Sachdeva, who had acted for the applicant NHS bodies in the case, kicked the evening off with a summary of the arguments deployed before the court relating to domestic law, ECHR arguments and professional guidance. He concluded by highlighting the significance of the decision in respect of the continuing need for treating clinicians to following the relevant Code of Practice and formal professional guidance (current joint GMC/MBA/RCP Interim Guidance issued in 2017) concerning best interest decision making in this area; doubt as to whether other categories of serious medical treatment listed in COP Practice Direction PD9E, such as organ/bone marrow donation, and non-therapeutic sterilisation, will continue to require court applications; and the level of disagreement between family and, say a single clinician, which should trigger a court application. He suggested that where any dispute existed, clinicians should not hesitate to approach the court, as where the decision may be finely balanced.
Professor Turner-Stokes then ably deployed her 25 years of frontline medical experience to provide a clinician’s insight into the long, slow progression of judicial guidance over two decades dating back to the House of Lords decision concerning Hillsborough victim in PVS, Tony Bland [1993] A.C. 789Not on Bailii! , culminating in the decision in Re Y, which was broadly supported by the clinical community caring for this category of patients.
Veronica English then provided an update on the progress being made towards finalising joint MBA/GMC/RCP guidance, following a very broad process of consultation and engagement with relevant stakeholders, including clinical experts and families and patient support groups. Interim guidance, issued in December 2017, is already available online. The aim is to issue the final guidance within the next month or so, which will be much broader in scope, relating to decisions to start and continue CANH as well as decisions to withdraw and will address a much wider group of patients, not just those with PDOC but also those suffering multiple co-morbidities. The purpose of the new guidance will be ambitious: to improve the overall quality of best interest decision-making processes at a systemic level.
Tor Butler-Cole followed with a thought-provoking discussion about the continuing applicability of PD9E and the current question-marks about what types of case still required, as a legal obligation, an application to be made to the Court of Protection. She pointed out that Lady Black endorsed the broad statement by King LJ in the earlier Briggs case [2017] EWCA Civ 1169B, that “if the medical treatment is not in dispute then, regardless of whether it involves the withdrawal of treatment of a person who is [MCS] or in [PVS] it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors…”. She suggested that one area of continuing doubt is in relation to the forced sterilisation of those lacking capacity to consent to the same, where the ECHR may mandate a court application to be made and could possibly constitute an inevitable violation of ECHR article 3 and/or 8, in particular where the person was objecting to such a step being taken.
The evening finished with a lively Q & A session, at the conclusion of which Peter Jackson LJ left the packed room with the suggestion that the next seminar may wish to address the humanity of allowing patients in PDOC to die from withdrawal of CANH over a 2-3 week period and pondering whether society is ready to discuss this thorny moral issue.
Mungo Wenban-Smith