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The Supreme Court has ruled that it is no longer necessary for NHS Trusts to seek the permission of the Court of Protection in order to withdraw 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 to continue with that treatment.
The background
In An NHS Trust & Ors v Y & Anor [2018] UKSC 46 , Mr Y had had a cardiac arrest in 2017 that resulted in extensive brain damage. He never regained consciousness and required CANH to keep him alive. His treating physician concluded that he was suffering from PDOC and that even if he were to regain consciousness he would have profound cognitive and physical disability, remaining dependent on others for his care for the rest of his life. A second opinion confirmed that view. Mrs Y and their children believed that, given the prognosis, he would not wish to be kept alive. The clinical team and the family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks [3].
In November 2017, the NHS Trust applied to the Queen’s Bench Division for a declaration (1) that it was not mandatory to seek the court’s approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patient’s family were agreed that it was not in the patient’s best interests that he continue to receive that treatment, and (2) that no civil or criminal liability would result if CANH were to be withdrawn. At a directions hearing on 3 November, Fraser J invited the Official Solicitor to act as Mr Y’s litigation friend in the proceedings but, rather than adjourning the case for a hearing in the Court of Protection as the Official Solicitor sought, he ordered that the final hearing be expedited and listed before O’Farrell J in the Queen’s Bench Division on 10 November [4]. […]