Supreme Court to consider role of court in nutrition withdrawal cases

The Supreme Court will next week consider whether it is 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 ("PDOC"), in circumstances where the clinical team and the family are agreed that it is not in the patient's best interests that he continues to receive that treatment.

In An NHS Trust (Respondent) v Y (by his litigation friend, the Official Solicitor) and another (Appellant) UKSC 2017/0202 the Appellant, Mr Y, was a 52-year old man, who suffered a severe hypoxic brain injury on 2 June 2017 as the result of a cardiac arrest.

Following his cardiac arrest, Mr Y fell into a PDOC, with no capacity to make decisions about his future care.

Two medical experts agreed that Mr Y was in a very low level of responsiveness with no awareness of self or his environment, and that it was highly improbable that he would re-emerge into consciousness.

The clinical team and Mr Y's family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, with the consequence that he would die within 2 to 3 weeks.

On 1 November 2017, the first Respondent, the NHS Trust, issued proceedings seeking a declaration that it is not mandatory to bring before the court the withdrawal of CANH from a patient who has a PDOC, in circumstances where the clinical team and the family agree that it is not in the patient's best interests that he continues to receive that treatment.

This was resisted by the Official Solicitor as Mr Y’s litigation friend.

In NHS Trust v Y & Anor [2017] EWHC 2866 (QB) the High Court (Mr Justice Farrell) granted a declaration albeit in more narrow terms than those sought by the Trust.

Since the Supreme Court granted permission to appeal, Mr Y has died. Notwithstanding the Appellant’s death, the Court gave permission for the appeal to proceed.

The expedited case will be heard by Lady Hale, Lord Mance, Lord Wilson, Lord Hodge and Lady Black on 26 February.