M (Withdrawal of Treatment: Need for Proceedings) COURT OF PROTECTION (2017 EWCOP 19)

This somewhat landmark ruling by Mr Justice Peter Jackson in the Court of Protection means that legal permission is no longer necessary in England and Wales before withdrawing treatment from patients with severe illnesses and marks a significant change in how end-of-life cases where those concerned are specifically on life-support may be handled in the future.

These proceedings, which began on 27 April 2017 and which were concluded at a final hearing on 22 June 2017, concerned M, a sufferer from Huntington’s disease. This case was brought as a challenge to a standard deprivation of liberty authorisation, but also related to a request for the court “if required” to determine that it would be in M’s best interests not to continue to receive clinically assisted nutrition and hydration (CANH), with the consequence that she would die. The application was supported by M’s family and clinicians.
Huntington’s disease is an inherited neurological condition that is progressive, incurable

and ultimately fatal. In 1994, M became permanently resident in the respondent hospital and by 2003, was no longer able to leave at all following which, she became fully dependent on CANH by PEG tube.

The main issue upon which the Court was asked to provide judgement was whether legal proceedings were necessary or not in light of the fact that there was agreement between M’s family and her clinicians that CANH was no longer in her best interests. Practice Direction 9E provides that decisions about the proposed withholding or withdrawal of CANH from a person in a permanent vegetative state (PVS) or MCS should be brought to Court and in this case, the Court were asked to decide if the rule set down by this Practice Direction should be followed in this instance.

The Court found that it was no longer in M’s interests for her life to be artificially continued by CANH and in turn accepted the evidence of both family members and the clinicians involved in M’s care. The judgement concluded that a decision to withdraw CANH, taken in accordance with the prevailing professional guidance will be lawful and the clinicians will benefit from the protection of s.5 Mental Capacity Act 2005 which has the effect “that care or treatment can lawfully be provided to a person lacking capacity if it is treatment to which she could have consented, provided that it is reasonably believed to be in her best interests.”

As to whether such an application could be deemed necessary became the subject of some very detailed written submissions when the case was heard and when Mr Justice Peter Jackson concluded that “On the facts of this case, I do not consider it to have been a legal requirement for the decision to withdraw CANH to have been taken by the Court, though it is entirely understandable that the parties sought an external decision, given the state of the law.”

The conclusion then, that such a Court application was not required follows the comments of the Court of Appeal in Briggs [2017] EWCA Civ 1169; Court applications are only required where there is a dispute, and this proves a very important contribution to the current debate about PD9E and whether Court proceedings are needed.

Pending the development of further guidance as recommended by the Court of Protection Rules Committee, matters remain in something of a state of uncertainty. Whilst this decision means that there is no requirement to make an application to Court for such cases, it remains less clear-cut when it would be good practice to do so and it will be extremely important to bear in mind the warning arising from this decision – “…every case is intensely fact-specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to be right to do so“.

The full judgment can be read here.

If you have any questions about this summary case law please contact Melanie here.