View source for ICLR (2017) WLR(D) 771

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[2017] WLR(D) 771

Queen’s Bench Division

A NHS Trust v Y and another

[2017] EWHC 2866 (QB)

2017 Nov 10; 13

O’Farrell J

''Mental disorder— Incapable person— Best interests— Incapacitated person in prolonged disorder of consciousness in hospital— Application for declaration that withdrawal of life-sustaining treatment in incapacitated person’s best interests— Whether mandatory to bring withdrawal of treatment before Court of Protection— Mental Capacity Act 2005 (c 9)
The incapacitated person (“Y”), following a cardiac arrest, suffered from a prolonged disorder of consciousness and lacked capacity to make a decision as to his future treatment and care. The NHS Trust brought a claim under CPR Pt 8 by which it sought a declaration that it was not mandatory to bring before the Court of Protection the withdrawal of clinically assisted nutrition and hydration (“CANH”) in circumstances where the clinical team and the patient’s family were agreed that it is not in his best interests to continue to receive that treatment, and that no civil or criminal liability would result if CANH was withdrawn.''

On the application—

Held, declaration granted, that as a rule of practice cases concerning the withdrawal of CANH from a person who lacked capacity should be determined in the Court of Protection. However, there was no rule of principle or binding authority for the proposition that the withdrawal of CANH was lawful only where it had been sanctioned by the court. Where the clinicians had followed the Mental Capacity Act 2005 and good medical practice, there was no dispute with the family of the person who lacked capacity or others interested in his welfare, and no other doubts or concerns had been identified, there was no requirement to bring the matter before the Court of Protection. It was neither necessary nor appropriate to make a declaration that applied beyond the present case and the release from liability sought was too wide. Accordingly, a declaration would be granted that in the circumstances, it was not mandatory to bring before the Court of Protection the issue of the withdrawal of CANH from Y (paras 51–54).

M v A Hospital [2017] EWCOP 19 applied.

Vikram Sachdeva QC and Catherine Dobson (instructed by Hempsons) for the claimant.

Richard Gordon QC and Fiona Paterson (instructed by the Official Solicitor) for Y.

Victoria Butler-Cole (instructed by Bindmans llp) for Y’s wife.

Reported by: Benjamin Weaver Esq, Barrister