– Thomas Yeon, Notes Editor (Public Law)
Case note: Y v An NHS Trust and others [2018] UKSC 46 [1]
The question over the necessity of obtaining court order for terminating clinically assisted nutrition and hydration (“CANH”) for patients with minimal prospects of recovery reflects two competing concerns: (i) the right to respect the private and family life of the patient and his/her family, [2] and (ii) the necessity to ensure that the decision to terminate life support is one which is thoroughly considered by all relevant stakeholders. The Supreme Court decision in Y v An NHS Trust and others [3] has provided an insightful analysis of the non-necessity of obtaining a court order and the logic behind this. This note will analyse the decision from a human rights perspective on two levels. Firstly, it will examine Lady Black’s observations on English and Strasbourg jurisprudence. Secondly, it will examine the decision’s broader impact on the law’s respect for the concerns of the patient and family’s decisions in treatment withdrawal decisions, and the doctor’s role therein. It will come to the conclusion that the commendable decision has offered a desirable degree of autonomy for patients and their families in making decisions to terminate medical treatment.
Facts and appellate history
The patient, Mr Y, had a prolonged disorder of consciousness (“PDOC”). Medical examinations suggest that he was unlikely to regain consciousness. He had neither executed any advance refusals nor appointed a lasting power of attorney under section 9 of the Mental Capacity Act 2005 (“MCA 2005”). The clinical team and Y’s family agreed that it would be in his best interests for CANH to be withdrawn, with the consequence that he would die within a period of two to three weeks. At first instance, O’Farrell J held that “it is not mandatory to bring before the court the withdrawal of CANH...in circumstances where the clinical team and Mr Y’s family have agreed that it is not in his best interests that he continues to receive that treatment.” [4]
Mr Y died on 22 December 2017. Nevertheless, the Supreme Court decided to hear the leapfrog appeal because of the general importance of the issues raised. It held that there is no legal requirement for parties to go to court in circumstances where the patient’s family and the clinical team agreed that it would be in the patient’s best interests to terminate CANH treatments. Neither the common law nor the ECHR gives rise to such mandatory requirements. [5]
Lady Black’s observations of (i) English jurisprudence and (ii) the ECtHR’s stance
English jurisprudence
The pertinent issue to consider here is how the legal requirement engages a patient’s Article 6 rights. By making court hearings a mandatory requirement, it is arguable that such hearing allows the patient to have a final chance of defence in relation to the proposed termination of treatment. However, for unconsciousness patients, it is questionable whether such defence is necessary or helpful if the patient’s family and the clinical team are of the same opinion that any continuation of treatment would not be in his best interests. Lady Black correctly observed [6] that previous landmark decisions of Airedale NHS Trust v Bland, [7] In re F (Medical Patient: Sterilisation) [8] and R (Burke) v General Medical Council [9] did not lay down any common law requirements for doctors, upon agreement with family members, to obtain a court declaration before CANH can be terminated. Seeking declaration was merely “recommended” “as a matter of good practice.” [10] While the illness concerned in the present case (PDOC) is different from the aforementioned cases, [11] the final outcome is similar: withdrawal of treatment according to the patient’s best interests. When the patient has lost consciousness, it would yield no practical results (not to mention benefits) to require a court hearing, when the available opinions suggest that the termination would be in his best interests. For patients who have lost consciousness at least, the argument of engagement of Article 6 is at best artificial. Lady Black aptly dismisses it.
The implementation of the MCA 2005 and its Code of Practice aims to ensure that decisions to terminate treatment will be made in the patient’s best interests. Confusingly, the Code states that the court “has to make” or “must be asked to make” a decision about withdrawing treatment for a patient in PVS. [12] In clarifying the law post-MCA 2005, Lady Black stated the Code “in...plainly attempting to convey what the cases have so far decided, cannot extend the duty of the medical team beyond what the cases do in fact decide is incumbent upon them….” [13] This is consistent with previous decisions holding that there is no common law requirement for medical teams to apply for the court for a formal declaration. It also illustrates the law’s appropriately permissive approach in cases where the best interests of the patient are not contested between the medical team and the patient. Given the court’s role as a last resort for parties to plead a case in favour of continuing medical treatment, if the views on best interests point unanimously towards termination of treatment, no question of erosion of the right to life arise.
Strasbourg jurisprudence
After observing that domestic law does not impose any legal requirements for making an application, Lady Black turned to ECHR jurisprudence. She began with Lambert v France and the relevant French regulatory framework. Elaborating on ECtHR’s stance on the non-necessity of mandatory legal requirements together with the aforementioned observations, she concluded the English provisions under MCA 2005 and its Code is a “regulatory framework” as required by the European Court. They were designed to “protect the human rights of patients and their families.” [14] The Lambert decision, arguably the most important Strasbourg decision in this respect, “does not regard it as problematic...that a decision to withhold or withdraw CANH...should be made by a doctor, without obligatory court involvement.” [15]
Lady Black identified three features in the European Court’s assessment: “the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2,” [16] “whether account has been taking of the previously expressed wishes and those of people close to him, as well as the opinions of other medical personnel,” [17] and “the possibility of approaching the courts in the vent of doubts as to the best decision to take in the patient’s interest.” [18] Of particular relevance to the present analysis is the final factor. Lady Black placed reliance in the ECtHR’s observation in the adminissibility decision in Burke v United Kingdom [19] that a “more stringent legal duty” would be “prescriptively burdensome” for the parties involved. Apart from considerations of principle, the practical aspects of such court involvement cannot be neglected in passing.
It is interesting to note that the ECHR’s focus is on a possibility to approach, instead of a requirement to approach. So long as it is possible for parties to seek judicial assistance, it is not necessary to impose any further requirements. This is not only a question of epistemology. It is, more importantly, a crucial finesse of the State’s role in protecting people’s right to life and fair trial, whilst simultaneously offering the possible maximum respect for the clinical team’s expertise and the grieving families. Although Article 2 is an absolute (non-derogable) right, this does not mean the State should be required to interpret expansively such requirement and impose unnecessary restraints on treatment decisions, which better reflects the best interests of the patient.
Reflections on the decision’s impact: a full respect for patient and family’s human rights?
In examining the nature of court involvement, Lady Black noted that it is “necessary to exercise the restraint that is required of a court when it ventures into areas of social and ethical uncertainty, and especially when it does so in the abstract, setting out views which will be of general application…” [20] While judges have experience in adjudicating life and death decisions, it is “a different sort from that of the medical team which actually treats the patient...this limitation must be recognised and taken into account.” [21] Judges are not necessarily always in the best position to adjudicate on clinical decisions and the best interests of the patient. The obligation of the State to secure the patient’s right to life cannot reasonably be seen as an omnipotent requirement to intervene in the private affairs of the family. Given the unique insights the clinical team has pertaining to patient care, courts should limit their involvement to a reasonable minimum.
In examining the patient’s best interests, doctors must follow the guidelines as set out under section 4 MCA 2005. [22] It is a holistic judgement, which, inter alia, requires consideration of the patient’s values and family members concerned of the patient’s welfare. [23] In extending considerations to family members, it can also be said that the right to private and family life for grieving family members can be better respected. Determinations over best interests must necessarily have regard to the views of family members. When the clinical team have reached the proposal of terminating treatment (e.g. CANH) after a comprehensive examination of the patient’s best interests, it would be unnecessary to force them to go to court again to obtain a declaratory relief to which they would agree to regardless whether court process is involved. Moreover, declaratory relief may carry potential emotional burdens for families. For some relatives, the prospect of declaratory relief may be distressing because they feel that the court is an illegitimate forum for such decisions to be made. The requirement to go to court may also be seen as an unwelcome legal intrusion into the family’s domain. [24]
The general purpose of medical treatment is to allow patients to recover. If the patient has minimal or zero prospects of recovery, regardless of the type of treatment administered, it would not be of any practical benefit of it to prolong his suffering. Lady Black noted that “if, at the end of the medical process, it is apparent that the way forward is finely balanced...or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare, a court application can and should be made.” [25] This neatly sums up the court’s role in questions of terminating medical treatment: it should only intervene when disputes arise. If an agreement is reached between grieving family members and the medical team, the court should accordingly defer to the views of the medical team and respect the private spheres of family life.
Conclusion
In questions of withholding and withdrawing medical treatments, courts act as a last-resort platform for resolving disputes between family members and the medical team. The sensitivity of such matters, together with the expertise of the medical team, makes it unnecessary for courts to examine every single decision before the medical team can proceed. By confirming the court’s limited role in such medical decisions, Y v An NHS Trust provides a commendable and resounding confirmation in the law’s respect for the private spheres and human rights concerns for the patient and his family members.
_________________
[1] Many thanks to Mythili Mishra for her research assistance.
[2] Article 8, European Convention on Human Rights (“ECHR”).
[3] [2018] UKSC 46, [8].
[4] [2017] EWHC 2866, [52].
[5] Y (n 3) [126].
[6] ibid, [93]-[94].
[7] [1993] 1 All ER 281.
[8] [1990] 2 AC 1.
[9] [2005] EWCA Civ 1003.
[10] Y (n 3) [94].
[11] Bland concerned a patient in a persistent vegetative state (“PVS”); Re F concerned a patient with mental disability; Burke concerned a patient with a degenerative condition which would ultimately deprive him of the ability to swallow.
[12] Code of Practice to the Mental Capacity Act 2005, [6.18].
[13] Y (n 3) [97].
[14] ibid [105].
[15] ibid [110].
[16] ibid.
[17] ibid [108].
[18] ibid [109].
[19] App No 19807/06 (ECHR, 11 July 2006).
[20] Y (n 3) [115].
[21] ibid.
[22] Section 4 should not be applied unless it is established that the patient in question lacks capacity.
[23] As noted by Wade in his criticism in D Wade, “Commentary on Charles Foster’s ’The rebirth of medical paternalism: An NHS Trust v Y” (Journal of Medical Ethics, 31 October 2018) <https://jme-bmj-com.gate3.library.lse.ac.uk/content/early/2018/10/31/medethics-2018-105200> accessed 30 November 2018. This is a comment against Charles Foster’s claim that the case represents a resurgence of medical paternalism (C Foster, “The rebirth of medical paternalism: An NHS Trust v Y” (Journal of Medical Ethics, 9 October 2018) <https://jme-bmj-com.gate3.library.lse.ac.uk/content/early/2018/10/09/medethics-2018-105098> accessed 30 November 2018.
[24] S Halliday, A Formby and R Cookson, “An Assessment of the Court’s Role in the Withdrawal of Clinically Assisted Nutrition and Hydration from Patients in the Permanent Vegetative State” (2015) 23(4) Medical Law Review 556, 577.
[25] (n 3) §125.
Case note: Y v An NHS Trust and others [2018] UKSC 46 [1]
The question over the necessity of obtaining court order for terminating clinically assisted nutrition and hydration (“CANH”) for patients with minimal prospects of recovery reflects two competing concerns: (i) the right to respect the private and family life of the patient and his/her family, [2] and (ii) the necessity to ensure that the decision to terminate life support is one which is thoroughly considered by all relevant stakeholders. The Supreme Court decision in Y v An NHS Trust and others [3] has provided an insightful analysis of the non-necessity of obtaining a court order and the logic behind this. This note will analyse the decision from a human rights perspective on two levels. Firstly, it will examine Lady Black’s observations on English and Strasbourg jurisprudence. Secondly, it will examine the decision’s broader impact on the law’s respect for the concerns of the patient and family’s decisions in treatment withdrawal decisions, and the doctor’s role therein. It will come to the conclusion that the commendable decision has offered a desirable degree of autonomy for patients and their families in making decisions to terminate medical treatment.
Facts and appellate history
The patient, Mr Y, had a prolonged disorder of consciousness (“PDOC”). Medical examinations suggest that he was unlikely to regain consciousness. He had neither executed any advance refusals nor appointed a lasting power of attorney under section 9 of the Mental Capacity Act 2005 (“MCA 2005”). The clinical team and Y’s family agreed that it would be in his best interests for CANH to be withdrawn, with the consequence that he would die within a period of two to three weeks. At first instance, O’Farrell J held that “it is not mandatory to bring before the court the withdrawal of CANH...in circumstances where the clinical team and Mr Y’s family have agreed that it is not in his best interests that he continues to receive that treatment.” [4]
Mr Y died on 22 December 2017. Nevertheless, the Supreme Court decided to hear the leapfrog appeal because of the general importance of the issues raised. It held that there is no legal requirement for parties to go to court in circumstances where the patient’s family and the clinical team agreed that it would be in the patient’s best interests to terminate CANH treatments. Neither the common law nor the ECHR gives rise to such mandatory requirements. [5]
Lady Black’s observations of (i) English jurisprudence and (ii) the ECtHR’s stance
English jurisprudence
The pertinent issue to consider here is how the legal requirement engages a patient’s Article 6 rights. By making court hearings a mandatory requirement, it is arguable that such hearing allows the patient to have a final chance of defence in relation to the proposed termination of treatment. However, for unconsciousness patients, it is questionable whether such defence is necessary or helpful if the patient’s family and the clinical team are of the same opinion that any continuation of treatment would not be in his best interests. Lady Black correctly observed [6] that previous landmark decisions of Airedale NHS Trust v Bland, [7] In re F (Medical Patient: Sterilisation) [8] and R (Burke) v General Medical Council [9] did not lay down any common law requirements for doctors, upon agreement with family members, to obtain a court declaration before CANH can be terminated. Seeking declaration was merely “recommended” “as a matter of good practice.” [10] While the illness concerned in the present case (PDOC) is different from the aforementioned cases, [11] the final outcome is similar: withdrawal of treatment according to the patient’s best interests. When the patient has lost consciousness, it would yield no practical results (not to mention benefits) to require a court hearing, when the available opinions suggest that the termination would be in his best interests. For patients who have lost consciousness at least, the argument of engagement of Article 6 is at best artificial. Lady Black aptly dismisses it.
The implementation of the MCA 2005 and its Code of Practice aims to ensure that decisions to terminate treatment will be made in the patient’s best interests. Confusingly, the Code states that the court “has to make” or “must be asked to make” a decision about withdrawing treatment for a patient in PVS. [12] In clarifying the law post-MCA 2005, Lady Black stated the Code “in...plainly attempting to convey what the cases have so far decided, cannot extend the duty of the medical team beyond what the cases do in fact decide is incumbent upon them….” [13] This is consistent with previous decisions holding that there is no common law requirement for medical teams to apply for the court for a formal declaration. It also illustrates the law’s appropriately permissive approach in cases where the best interests of the patient are not contested between the medical team and the patient. Given the court’s role as a last resort for parties to plead a case in favour of continuing medical treatment, if the views on best interests point unanimously towards termination of treatment, no question of erosion of the right to life arise.
Strasbourg jurisprudence
After observing that domestic law does not impose any legal requirements for making an application, Lady Black turned to ECHR jurisprudence. She began with Lambert v France and the relevant French regulatory framework. Elaborating on ECtHR’s stance on the non-necessity of mandatory legal requirements together with the aforementioned observations, she concluded the English provisions under MCA 2005 and its Code is a “regulatory framework” as required by the European Court. They were designed to “protect the human rights of patients and their families.” [14] The Lambert decision, arguably the most important Strasbourg decision in this respect, “does not regard it as problematic...that a decision to withhold or withdraw CANH...should be made by a doctor, without obligatory court involvement.” [15]
Lady Black identified three features in the European Court’s assessment: “the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2,” [16] “whether account has been taking of the previously expressed wishes and those of people close to him, as well as the opinions of other medical personnel,” [17] and “the possibility of approaching the courts in the vent of doubts as to the best decision to take in the patient’s interest.” [18] Of particular relevance to the present analysis is the final factor. Lady Black placed reliance in the ECtHR’s observation in the adminissibility decision in Burke v United Kingdom [19] that a “more stringent legal duty” would be “prescriptively burdensome” for the parties involved. Apart from considerations of principle, the practical aspects of such court involvement cannot be neglected in passing.
It is interesting to note that the ECHR’s focus is on a possibility to approach, instead of a requirement to approach. So long as it is possible for parties to seek judicial assistance, it is not necessary to impose any further requirements. This is not only a question of epistemology. It is, more importantly, a crucial finesse of the State’s role in protecting people’s right to life and fair trial, whilst simultaneously offering the possible maximum respect for the clinical team’s expertise and the grieving families. Although Article 2 is an absolute (non-derogable) right, this does not mean the State should be required to interpret expansively such requirement and impose unnecessary restraints on treatment decisions, which better reflects the best interests of the patient.
Reflections on the decision’s impact: a full respect for patient and family’s human rights?
In examining the nature of court involvement, Lady Black noted that it is “necessary to exercise the restraint that is required of a court when it ventures into areas of social and ethical uncertainty, and especially when it does so in the abstract, setting out views which will be of general application…” [20] While judges have experience in adjudicating life and death decisions, it is “a different sort from that of the medical team which actually treats the patient...this limitation must be recognised and taken into account.” [21] Judges are not necessarily always in the best position to adjudicate on clinical decisions and the best interests of the patient. The obligation of the State to secure the patient’s right to life cannot reasonably be seen as an omnipotent requirement to intervene in the private affairs of the family. Given the unique insights the clinical team has pertaining to patient care, courts should limit their involvement to a reasonable minimum.
In examining the patient’s best interests, doctors must follow the guidelines as set out under section 4 MCA 2005. [22] It is a holistic judgement, which, inter alia, requires consideration of the patient’s values and family members concerned of the patient’s welfare. [23] In extending considerations to family members, it can also be said that the right to private and family life for grieving family members can be better respected. Determinations over best interests must necessarily have regard to the views of family members. When the clinical team have reached the proposal of terminating treatment (e.g. CANH) after a comprehensive examination of the patient’s best interests, it would be unnecessary to force them to go to court again to obtain a declaratory relief to which they would agree to regardless whether court process is involved. Moreover, declaratory relief may carry potential emotional burdens for families. For some relatives, the prospect of declaratory relief may be distressing because they feel that the court is an illegitimate forum for such decisions to be made. The requirement to go to court may also be seen as an unwelcome legal intrusion into the family’s domain. [24]
The general purpose of medical treatment is to allow patients to recover. If the patient has minimal or zero prospects of recovery, regardless of the type of treatment administered, it would not be of any practical benefit of it to prolong his suffering. Lady Black noted that “if, at the end of the medical process, it is apparent that the way forward is finely balanced...or a lack of agreement to a proposed course of action from those with an interest in the patient’s welfare, a court application can and should be made.” [25] This neatly sums up the court’s role in questions of terminating medical treatment: it should only intervene when disputes arise. If an agreement is reached between grieving family members and the medical team, the court should accordingly defer to the views of the medical team and respect the private spheres of family life.
Conclusion
In questions of withholding and withdrawing medical treatments, courts act as a last-resort platform for resolving disputes between family members and the medical team. The sensitivity of such matters, together with the expertise of the medical team, makes it unnecessary for courts to examine every single decision before the medical team can proceed. By confirming the court’s limited role in such medical decisions, Y v An NHS Trust provides a commendable and resounding confirmation in the law’s respect for the private spheres and human rights concerns for the patient and his family members.
_________________
[1] Many thanks to Mythili Mishra for her research assistance.
[2] Article 8, European Convention on Human Rights (“ECHR”).
[3] [2018] UKSC 46, [8].
[4] [2017] EWHC 2866, [52].
[5] Y (n 3) [126].
[6] ibid, [93]-[94].
[7] [1993] 1 All ER 281.
[8] [1990] 2 AC 1.
[9] [2005] EWCA Civ 1003.
[10] Y (n 3) [94].
[11] Bland concerned a patient in a persistent vegetative state (“PVS”); Re F concerned a patient with mental disability; Burke concerned a patient with a degenerative condition which would ultimately deprive him of the ability to swallow.
[12] Code of Practice to the Mental Capacity Act 2005, [6.18].
[13] Y (n 3) [97].
[14] ibid [105].
[15] ibid [110].
[16] ibid.
[17] ibid [108].
[18] ibid [109].
[19] App No 19807/06 (ECHR, 11 July 2006).
[20] Y (n 3) [115].
[21] ibid.
[22] Section 4 should not be applied unless it is established that the patient in question lacks capacity.
[23] As noted by Wade in his criticism in D Wade, “Commentary on Charles Foster’s ’The rebirth of medical paternalism: An NHS Trust v Y” (Journal of Medical Ethics, 31 October 2018) <https://jme-bmj-com.gate3.library.lse.ac.uk/content/early/2018/10/31/medethics-2018-105200> accessed 30 November 2018. This is a comment against Charles Foster’s claim that the case represents a resurgence of medical paternalism (C Foster, “The rebirth of medical paternalism: An NHS Trust v Y” (Journal of Medical Ethics, 9 October 2018) <https://jme-bmj-com.gate3.library.lse.ac.uk/content/early/2018/10/09/medethics-2018-105098> accessed 30 November 2018.
[24] S Halliday, A Formby and R Cookson, “An Assessment of the Court’s Role in the Withdrawal of Clinically Assisted Nutrition and Hydration from Patients in the Permanent Vegetative State” (2015) 23(4) Medical Law Review 556, 577.
[25] (n 3) §125.
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