An NHS Trust & Ors v Y & Anor [2018] UKSC 46

Mr Y suffered severe brain damage following cardiac arrest and required clinically assisted nutrition and hydration. His family and clinicians agreed withdrawal was in his best interests. The Supreme Court held court approval is not legally required where there is agreement and proper procedures are followed.

Facts

Mr Y, an active man in his fifties, suffered a cardiac arrest in June 2017 resulting in severe cerebral hypoxia and extensive brain damage. He never regained consciousness and required clinically assisted nutrition and hydration (CANH) administered via a percutaneous endoscopic gastrostomy. His treating physician concluded he suffered from a prolonged disorder of consciousness (PDOC) with no prospect of recovery, a view confirmed by a second opinion. His family and the clinical team agreed that withdrawal of CANH was in his best interests.

The NHS Trust applied to the High Court for a declaration that court approval was not mandatory before withdrawing CANH where the clinical team and family agreed. O’Farrell J granted the declaration. The Official Solicitor, acting as Mr Y’s litigation friend, appealed directly to the Supreme Court. Mr Y died on 22 December 2017, but the appeal proceeded due to the general importance of the issues.

Issues

The central issue was whether a court order must always be obtained before CANH can be withdrawn from a person with PDOC, or whether, in some circumstances, this can occur without court involvement. This required consideration of whether such a requirement arose under the common law, the Mental Capacity Act 2005 (MCA 2005), the MCA Code of Practice, or the European Convention on Human Rights (ECHR), particularly articles 2, 6, 8, and 14.

Arguments

Official Solicitor (Appellant)

The Official Solicitor submitted that court approval must be sought in every case before CANH can be withdrawn from a PDOC patient, to safeguard their vulnerable position through independent representation, expert evidence, and judicial scrutiny. He argued this was supported by the common law (relying on In re F (Mental Patient: Sterilisation) and Airedale NHS Trust v Bland), the MCA Code of Practice, and articles 2, 6, 8 and 14 of the ECHR. He emphasised the particular vulnerabilities of PDOC patients, difficulties in diagnosis, and the risk that doctors would otherwise be “judge in their own cause”.

NHS Trust and CCG (Respondents)

The respondents argued that neither the common law nor the ECHR imposes a universal requirement to obtain court approval prior to withdrawal of CANH. The MCA 2005 establishes a complete statutory code permitting decisions to be made on behalf of incapacitated persons based on best interests, without singling out any sub-class of decisions requiring mandatory court involvement.

Judgment

The Supreme Court (Lady Black delivering the leading judgment, with whom Lady Hale, Lord Mance, Lord Wilson and Lord Hodge agreed) unanimously dismissed the appeal.

Common Law Position

Lady Black held that In re F and Bland did not impose a legal requirement to seek court approval but rather recommended this as a matter of good practice. In Bland, court applications were described as “desirable” and “as a matter of practice”, with Lord Goff anticipating that the President of the Family Division would, in time, relax the requirement. The Court of Appeal in R (Burke) v General Medical Council expressly affirmed that there was no legal duty to seek a declaration before withdrawing artificial nutrition and hydration.

Mental Capacity Act 2005

The MCA 2005 provides a statutory framework where decisions can be taken on behalf of those lacking capacity based on best interests without court involvement. Section 5 protects clinicians acting reasonably in the patient’s best interests. The Act does not single out any sub-class of decisions requiring court approval, despite the Law Commission having recommended such a provision.

The Code of Practice and Practice Direction 9E

The Code was held to be contradictory but, even taking its strongest formulation, could not extend duties beyond what the case law required. Practice Direction 9E (which had stated such cases should be brought to court) was revoked when the 2017 Court of Protection Rules came into force, and in any event a practice direction cannot create a legal obligation where none exists.

ECHR

The Court relied heavily on Lambert v France, the Grand Chamber’s landmark decision approving the French “collective procedure” which permits doctors to take such decisions without court involvement. The combination of the MCA 2005, the Code of Practice, and professional guidance (particularly from the GMC, BMA and RCP) constitutes a sufficient regulatory framework compatible with article 2. Burke v United Kingdom had already rejected the suggestion that insufficient protection arose from the absence of mandatory court approval. Article 6 was not engaged absent a genuine dispute, and article 14 did not assist as there was no proper analogy with assisted dying or with capacitous patients.

Wider Considerations

The Court noted that CANH is properly characterised as medical treatment (per Bland) and there was no principled reason to treat PDOC patients differently from patients with degenerative conditions or critically ill patients in intensive care, where similar decisions are routinely made without court involvement. Mandatory court applications would impose burdens on NHS resources, cause distress to families, risk delay and might deter true best interests decision-making.

Implications

The Court concluded that where the provisions of the MCA 2005 are followed, relevant professional guidance is observed, and there is agreement on the patient’s best interests, CANH may be withdrawn without court application. However, Lady Black emphasised that an application will be required (or desirable) where:

• the way forward is finely balanced;
• there is a difference of medical opinion; or
• there is a lack of agreement among those with an interest in the patient’s welfare.

The judgment underlines the crucial role of professional guidance, particularly the requirement of an independent second opinion from a senior clinician external to the patient’s treating organisation. The decision aligns English law with the Strasbourg jurisprudence in Lambert and recognises that PDOC patients should not be artificially distinguished from other categories of incapacitated patients facing end-of-life decisions.

Practically, the decision matters to NHS Trusts, clinicians, families of incapacitated patients, and patients themselves. It removes a procedural barrier in uncontested cases, sparing families the additional burden of litigation while preserving access to the Court of Protection where genuine doubts or disputes arise. The judgment is grounded in the specific statutory and professional regulatory framework now in place and assumes proper compliance with that framework, particularly the obtaining of independent second opinions and full consultation with those close to the patient.

Verdict: The appeal was dismissed. The Supreme Court held that there is no mandatory requirement under common law or the ECHR for a court application to be made before clinically assisted nutrition and hydration is withdrawn from a patient with a prolonged disorder of consciousness, provided that the provisions of the Mental Capacity Act 2005 are followed, relevant professional guidance is observed, and there is agreement that withdrawal is in the patient’s best interests. Court applications remain necessary where there is doubt, dispute, or where the decision is finely balanced.

Source: An NHS Trust & Ors v Y & Anor [2018] UKSC 46