In a landmark ruling, the Court of Protection has held that doctors can lawfully withdraw clinically assisted artificial nutrition and hydration (CANH) from a patient in a minimally conscious state.
The patient, referred to as Mrs N, has some level of awareness, for example, tracking and eye movement that is more than fleeting. The law defines CANH as a form of invasive medical treatment, and doctors must weigh up the benefits and disadvantages of continuing treatment when deciding best interests.
The case, M v N (By her litigation friend, the Official Solicitor) and others [2015] EWCOP 76, heard by Mr Justice Hayden, was brought by Mrs N’s daughter, who believed that the continuation of the intervention was against her mother’s best interests. Mrs N had suffered multiple sclerosis for 23 years, had resisted treatment and found living with the degenerative condition extremely difficult.
Hayden noted that Baroness Hale, in Aintree University Hospital Trust v James [2014] AC 591, “took care to ensure that the question was properly formulated not as the ‘withholding of treatment’ but focused instead on the patient’s best interests”.
Rebecca Fitzpatrick, solicitor at Browne Jacobson, who acted for the care provider, says: “This is the first English case where the court has ruled that it is lawful for CANH to be withdrawn from a person in a minimally conscious state.
“On the facts of this case, the judge was persuaded by the family evidence that Mrs N would not want such invasive treatment to continue if she was able to speak for herself. Following on from previous case law, the judge was required to give great weight to her likely wishes and feelings when coming to a decision.
“Given the very serious issues involved, this is a landmark ruling arguably representing a shift in mental capacity law towards a substituted judgment test rather than a straightforward best interests test when deciding these difficult issues.”
The Court of Protection will begin a pilot scheme next year that will give the public and the media greater access to hearings. It will reverse the current situation where hearings are always held in private unless there is a good reason so that all cases will be public unless the judge wishes to preserve the anonymity of the parties.
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