Supreme Court Approves Withdrawal of Artificial Feeding and Hydration in Cases of Prolonged Disorder of Consciousness
In a landmark judgment this week, the Supreme Court has confirmed that the law does not require hospitals or clinicians to seek the Court’s approval before withdrawing feeding support from patients with prolonged disorder of consciousness.
The judgment in An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants)  UKSC 46 has concluded that, when there is clear agreement between the clinicians and the family that it is in the patient’s best interests that he not be kept alive, then it is inherently lawful to withdraw artificial nutrition and hydration, and no declaration is needed. The Court concluded that, insofar as the Code of Practice for the 2005 Mental Capacity Act (specifically paragraph 6.18) suggests otherwise, it is based on a mistaken understanding of the case law.
The Official Solicitor, whose function is to protect the interests of vulnerable patients who otherwise had no voice, argued that human dignity and the sanctity of life require that the Court should specifically approve all such cases, especially given the uncertainty of diagnosis and prognosis of conditions which are not well understood, and given the possibility of unexpectedly improved outcomes.
Lady Black reviewed the case law, particularly the well-known case of Airedale NHS Trust v Bland  AC 789 and found that, while the Courts have previously recommended that practitioners seek court approval, it was not ever intended to be a requirement. The lawfulness of clinicians’ actions do not generally depend on the Court’s approval.
Furthermore, Lady Black found it difficult to accept that patients in prolonged comas or in Permanent Vegetative State (PVS) can be clearly differentiated from other patients who, for example, are in the advanced stages of degenerative conditions, and from whom life-prolonging treatment is regularly withdrawn or withheld, on the grounds that it is in their best interests.
She concluded that there is no such mandatory requirement for all cases but that if, at the end of a medical assessment process conducted in accordance with guidance, the judgement is finely-balanced, or there is a lack of agreement, then “a Court application can and should be made… There should be no reticence about involving the Court in such cases.”
It is reported that there are over 1,000 such cases heard in England and Wales each year which would be affected, and the judgment is likely to provoke a mixed response. The judgment has been welcomed by some as reducing the stress and suffering of the families of patients in similar predicaments, but others have voiced their concerns that it has removed a layer of protection for vulnerable patients who have no voice.