Reflecting the current case law position, the interim guidance says there is no obligation to go to court for approval before withdrawing CANH from a patient who is in PVS or MCS if there is agreement about this being in the patient's best interests. 

Importantly, however, the interim guidance also sets out the steps clinicians must take to ensure their decision-making is clinically and legally robust.

The interim guidance rightly recognises that some cases should still be brought before the court, including those where there is disagreement about the patient's prognosis or best interests, or the decision is finely balanced. The law in this area could soon change and, with that in mind, the interim guidance reminds decision-makers that they may well wish to seek legal advice as to whether a court application is required in any particular case.

We look at the key points to be aware of.

Context

The High Court recently confirmed in the case of NHS Trust v Y that there is no legal obligation to go to the Court of Protection for approval before withdrawing CANH from patients in PVS/MCS where there is agreement between the clinical team and the family that it would not be in the patient's best interests to continue and where all the requirements of the Mental Capacity Act (MCA) and good clinical practice have been followed. The Y case may well go on to be heard by the Supreme Court on appeal but - for now at least - this is the legal position.

This reflects what the Court of Protection has said recently on the same issue ( Briggs  and  Re M ).

The publication of this interim guidance also ties in with the withdrawal of the Court of Protection Practice Direction about serious medical treatment cases (Practice Direction 9E), which had said that cases involving the proposed withdrawal of CANH from patients in PVS/MCS  'should'  be brought before the court. As of 1 December 2017, that Practice Direction no longer applies.

The interim guidance seeks to plug the gap in terms of where all this leaves clinicians by setting out the steps which must be followed to ensure legally robust decision-making in the absence of an application to the Court of Protection.

What does the interim guidance say?

Importantly, the interim guidance only covers withdrawal of CANH for patients in PVS/MCS following sudden-onset brain injury. No other cases are captured by the interim guidance.

The guidance emphasises that - as with all decision-making relating to patients who lack capacity - decisions must be based on an assessment of what is in the patient's best interests.

If there is any disagreement about the patient's prognosis or best interests, or the decision is finely balanced, the position remains that an application should be made to the Court of Protection for a declaration as to whether continuing CANH is in the patient's best interests.

Where there is no dispute, however, the interim guidance advises that the clinical team can lawfully withhold or withdraw CANH on the basis of their own determination (reached after proper consultation) as to what is in the person's best interests - i.e. without first going to court.

This is subject to the important caveat that (as with any best interests decision-making) the requirements of the MCA must be met and existing professional guidance followed.

To help clinicians with this, the interim guidance sets out a number of recommended steps to ensure legally robust decision-making.

There are 15 recommended steps in total and this briefing does not attempt to list them all (there is no substitute for consulting the guidance directly), but they include:

• Follow RCP guidance  on prolonged disorders of consciousness cases, including establishing prognosis, level of awareness and trajectory of change via appropriate PDOC expertise;
• Follow guidance on how to assess best interests  (including MCA Code of Practice and professional guidance) - remembering that the MCA will only protect decision-makers from liability if the correct process is followed;
• Formal best interests meetings  should be held, involving those caring for the patient and those interested in his/her welfare;
• Seek a second clinical opinion  from a consultant with PDOC experience who has not been involved in the patient's care;
• Keep a very detailed record  of all discussions, best interests meetings, advice sought;
• Prepare a detailed plan for the process of withdrawal and end-of-life care  if all parties agree that it is not in the patient's best interests to continue with CANH.

Reflecting the potential for the law on this to change if an appeal to the Supreme Court in the Y case were to be successful, the interim guidance also suggests that Trusts may well wish to seek legal advice as to whether a court application is required in any particular case.

What next?

The BMA says we can expect the full guidance on this in May 2018.

How we can help

Our national team of Mental Capacity Act and Court of Protection specialists have extensive experience of advising commissioners and providers across the health and social care sector.

We provide responsive, practical advice on all aspects of the law in this area, including:

• Serious medical treatment cases - including advice on whether an application needs to be made to the Court of Protection
• Interface between the Mental Capacity Act and Mental Health Act
• Court of Protection welfare applications relating to care and/or accommodation
• Section 21A challenges to DoLS authorisations

We can also provide bespoke training in relation to all aspects of Court of Protection proceedings.

If you need advice in relation to a withdrawal of treatment case or other Court of Protection matter, please contact Gillian Weatherill on: +44 (0)191 4044045 or gweatherill@dacbeachcroft.com.