Withdrawal Of Assisted Nutrition And Hydration - Supreme Court Judgment

On 30 July 2018 the Supreme Court handed down its decision in An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants) [2018] UKSC 46. The case concerned the issue of whether a court order must always be obtained before clinically assisted nutrition and hydration, which in essence is keeping a person alive in a minimally conscious or vegetative state, can be withdrawn.

Background

Briefly, Mr Y was a man in his fifties who suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage. He never regained consciousness. He required clinically assisted nutrition and hydration, provided by means of a percutaneous endoscopic gastrostomy (being a feeding tube), to keep him alive. His treating clinicians eventually concluded that he was suffering from a prolonged disorder of consciousness and that even if he were to regain consciousness, he would have profound cognitive and physical disabilities, thus rendering him dependent on others to care for him for the rest of his life. A second opinion was obtained from a consultant and professor in Neurological Rehabilitation, who considered that Mr Y had no prospect of improvement. Mr Y's family believed that in such circumstances he would not wish to be kept alive given the doctors' views about his prognosis. It was therefore agreed that it would be in Mr Y's best interests for his feeding to be withdrawn.

The NHS Trust subsequently issued an application in the High Court for a declaration that it was not mandatory to seek the Court's approval for withdrawal of feeding when the clinical team and family were in agreement that it was not in the patient's best interests that he continue to receive treatment and that no civil or criminal liability would result in such circumstances. The Official Solicitor, whose role it is to protect the interests and make decisions on behalf of those who lack capacity, such as Mr Y, was invited to act as Mr Y's litigation friend.

The case was accelerated through to the Supreme Court due to Mr Y's poor condition but he died before the case could be heard. The court nevertheless determined that the hearing should go ahead given the importance of the legal issues that needed to be resolved, and the far reaching implications of its decision on future cases.

The Official Solicitor argued that in every case court approval must be sought before feeding can be withdrawn from a person with a...