When do you need to go to Court to justify withdrawing treatment?
The case of M (Withdrawal of Treatment) 2017: is a landmark case. It was generally accepted until recently that decisions about withdrawing clinically assisted nutrition and hydration (CANH) from patients in PVS or MCS should always as a matter of good practice be brought before the Court of Protection, but the judge has opened the door to a radical change in approach which many families and doctors will welcome.
M was dependent on CANH via a tube, she had shown no signs of awareness for about 18 months at the time of the hearing. All involved in her care including the family were in agreement that withdrawal of CANH would be in her best interests.
Following the COP Practice Direction the Judge had to decide whether CANH could be stopped. Having heard the evidence (including the view of M’s mother that M would not have wanted to go on living as she was) the Court agreed it would be in best interests for M’s treatment to be withdrawn. Given there was no dispute about best interests in this case however the Judge was asked to give guidance on whether it was necessary in all cases to bring the case to Court.
The Judge was referred to the recent case of Briggs in the Court of Appeal which said where there is no doubt or dispute about a best interests decision to withdraw treatment from a PVS/MCS patient a decision can be made by the treating team under the usual MCA principles without any legal obligation to involve the Court.
The Official Solicitor contended in cases like M, an application should be made to guard against the possibility of incorrect diagnosis or prognosis. The Judge’s view however was there is no reason why decisions about withdrawal of treatment from PVS/MCS patients should not be taken in the same way as any other life and death treatment decision made by clinicians and families working together all the time. He referred to the deterrent effect of costly time consuming Court proceedings which could lead to inappropriate treatment continuing by default.
As a result, as long as decisions are reached in accordance with the relevant professional guidance in particular proper medical assessment and expert second opinions and is in accord with MCA best interest provisions, this will be lawful.
Until the Court of Protection Rules Committee has amended the rules extra care is required whenever there is doubt or dispute about a plan to withdraw. Every case is fact specific and legal advice should still be obtained on whether or not it is necessary to seek Court of Protection approval.