The court was asked whether a court order must always be obtained before clinically assisted nutrition and hydration, which is keeping alive a person with a prolonged disorder of consciousness, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. The Official Solicitor appealed from the grant of a declaration.
Held: The appeal failed. It was not established law that a court’s permission was required. The question facing anyone considering treatment of a patient not able to make his or her own decision is not whether it is lawful to withdraw treatment, but rather the legality of giving it. Treatment is lawful only if it is in the patient’s best interests. A doctor carrying out treatment in the reasonable belief that it will be in the patient’s best interests, is entitled to the protection from liability conferred by section 5 of the 2005 Act. Airedale v Bland did not impose such a requirement. Where the situation was not clear than a court application was appropriate.
Lady Hale, President, Lord Mance, Lord Wilson, Lord Hodge, Lady Black
 UKSC 46, (2018) 21 CCL Rep 410,  AC 978, (2018) 163 BMLR 1,  WLR(D) 490,  3 WLR 751, UKSC 2017/0202
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Feb 26 am Video, SC 2018 Feb 26 pm Video, SC 2018 Feb 27 am Video
Mental Capacity Act 2005 42(1), European Convention on Human Rights
England and Wales
Appeal from – NHS Trust v Y and Another QBD 13-Nov-2017
Claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration (‘CANH’) from a patient who has a prolonged disorder of consciousness in circumstances where . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – Director of Legal Aid Casework and Others v Briggs CA 31-Jul-2017
Orse In re Briggs (Incapacitated Person) . .
Cited – SCC v MSA and Another CoP 20-Sep-2017
Orse In re M (Incapacitated Person: Withdrawal of Treatment)
The court was concerned with the withdrawal of CANH from a woman who was suffering from Huntington’s disease and was in a minimally conscious state. Her family, her clinicians, and a . .
Cited – W v M S and Others CoP 28-Sep-2011
Orse – In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment)
The case concerned a woman in a minimally conscious state, Baker J expressed the view that ‘all decisions about the proposed withholding or withdrawal of ANH . .
Cited – LB (Plastics) Ltd v Swish Products Ltd ChD 1979
Whitford J said: ‘The cases since the Act of 1911 have, however, I think quite plainly established that no originality of thought is needed to sustain a claim to copyright. Under copyright ideas are not protected, only the skill and labour needed to . .
Cited – In re Briggs (Incapacitated Person) 2018
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.620170