Clinicians and a patient’s family agreed that continued clinically assisted nutrition and hydration was no longer in his best interests. The Supreme Court examined whether they were nevertheless obliged to obtain a court order. Its judgment distinguished cases of agreement from cases in which medical opinion or views about the patient’s interests differ.
The facts and the High Court
Mr Y had suffered severe brain injury. He could not make the treatment decision himself. His treating clinicians and family agreed that continuing clinically assisted nutrition and hydration was not in his best interests.
The NHS Trust sought a High Court declaration that court approval was not mandatory where the clinical team and family agreed, and that withdrawal would not create civil or criminal liability. O’Farrell J refused to transfer the case to the Court of Protection. She held that no common law principle required every withdrawal of CANH from a person lacking capacity to be sanctioned by the court. Where clinicians had followed the Mental Capacity Act 2005 and good medical practice, there was no dispute, and no other doubts or concerns had been identified, no application was required. She declared that it was not mandatory to bring Mr Y’s case before the court. Permission was given for a direct appeal to the Supreme Court.
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Mr Y died while the appeal was pending. The Supreme Court nevertheless heard the case to resolve the wider legal question.
The opposing arguments
The Official Solicitor argued that court approval was required in every case. Court proceedings would allow independent representation, expert evidence and submissions, protecting a vulnerable patient under the common law and Articles 2 and 6 of the European Convention on Human Rights. He relied on the difficulties of diagnosing prolonged disorders of consciousness and on the Mental Capacity Act Code of Practice. The NHS Trust and Clinical Commissioning Group argued that neither the common law nor the Convention imposed a universal requirement for prior court approval.
Why no universal requirement exists
Lady Black, with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed, held that domestic law imposed no such requirement. In In re F (Mental Patient: Sterilisation) and Airedale NHS Trust v Bland, the House of Lords treated an application for declaratory relief as highly desirable good practice, not as a legal duty in every case, and contemplated that the practice might later be limited. In R (Burke) v General Medical Council, the Court of Appeal confirmed that the court declares whether proposed treatment or its withdrawal is lawful; it does not authorise otherwise unlawful conduct, and there is no legal duty to seek a declaration. The European Court of Human Rights rejected the related complaint in Burke as manifestly ill-founded.
The Mental Capacity Act 2005 requires decisions to be made in the person’s best interests and, through section 5, protects a clinician who reasonably believes both that the person lacks capacity and that the act is in that person’s best interests. It does not identify any class of treatment decision that must always come before the court. The Code of Practice is not consistent: some passages say the court must decide about withdrawing artificial nutrition and hydration from a patient in a permanent vegetative state, while others refer to applications where there is doubt or dispute and describe the existing position as a matter of practice derived from Bland. The Code cannot impose a legal obligation beyond the decided cases. A former Practice Direction saying that such cases should be brought to court has been revoked and could not itself have created a legal duty.
Later domestic authority points the same way. In In re Briggs, King LJ observed, albeit obiter, that agreed best-interests decisions about withdrawal of CANH may be taken by the treating doctors, with section 5 protection, and that not every agreed case should go to court. Peter Jackson J reached a similar conclusion in In re M (Incapacitated Person: Withdrawal of Treatment).
The Convention does not require a different rule. In Lambert v France, the European Court of Human Rights accepted a procedure in which the treating doctor could decide to withdraw treatment after consultation, without obligatory court approval, as compatible with Article 2. The Mental Capacity Act 2005, the Code and professional guidance—particularly General Medical Council guidance requiring assessment, consultation, records and an independent second opinion—together provide a regulatory framework. The patient’s wishes and the views of those close to the patient must be taken into account, and the court remains available if there is doubt or disagreement. Article 6 is engaged by an actual dispute, not by assuming one in every case. Article 14 is not engaged: withdrawing treatment that is not in a patient’s best interests is distinct from an act intended to take life, including conduct covered by the Suicide Act 1961.
Lady Black also considered the practical setting. CANH is medical treatment, and decisions about other life-sustaining treatment, including for patients who do not have a prolonged disorder of consciousness, are commonly made without court proceedings. A universal litigation requirement would add delay, cost and strain, and might cause inappropriate treatment to continue by default. If the medical process leaves the decision finely balanced, medical opinions differ, or those interested in the patient’s welfare do not agree, an application can and should be made.
Verdict: The Court unanimously dismissed the appeal. Where the Mental Capacity Act 2005 and relevant guidance were followed and everyone agreed on the patient’s best interests, an application was unnecessary. A court decision may still be required or desirable where the issue is finely balanced, medical opinion differs or there is disagreement.
