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Human rights solicitor Anna Moore considers a recent ruling on withdrawing medical treatment

The Supreme Court decision of An NHS Trust and others v Y (by his litigation friend the Official Solicitor) [2018] UKSC 46 was handed down on 30th July 2018, Anna Moore considers its implications

Image of a hospital drip
Human rights solicitor Anna Moore has a particular interest in cases involving mental health and deprivation of liberty matters. She acts for a number of vulnerable clients
Yesterday the Supreme Court handed down an important judgement that confirms how decisions can be made to withdraw medical treatment for patients who are in a persistent vegetative state or minimally conscious state. The Supreme Court clarified that where there is agreement between the treating team and the family of the patient (patients in these states are unable to make decisions about treatment themselves), treatment can be withdrawn without the need for court order. 

Prior to this decision, even where all involved agreed that the withdrawal of treatment would be in the patient’s best interests, it was widely accepted that an order of the court was required to withdraw treatment.

The Official Solicitor, who acts for people who do not have capacity to make decision for themselves and acted for Y in this case, argued that every case should come before the court to ensure that that the position of the patient was properly safeguarded. However, the court confirmed that the involvement of the court is no longer required in every case.

In its judgment the court set out how these decisions should be taken and concluded that when the decision is finely balanced or there are differing medical opinions, an application to the court is still required. A court application is also still required if there is disagreement from anybody involved.

This judgment has served to clarify the position, which for a number of years has been unclear.  

Clarifying the position benefits all involved in these difficult decisions. In many cases, having to go through court proceedings only served to increase the distress families were facing during this intensely difficult time. Sometimes these cases can take a number of weeks (if not months) to determine, and spending the last days of a family member’s life in court instead of by their bedside, could increase the distress families are put through immeasurably.  

However, it will be essential that NHS Trusts work to ensure that the decision making process as set out in this judgment is properly and strictly adhered to. The court clarified that a second opinion from a senior doctor not previously involved in the case is ‘crucial’ and this second opinion should, if possible, be sought from a doctor from a different organisation to the one treating the patient.  I hope that Trusts will be proactive in issuing guidance and training to its practitioners dealing with these issues.

It will also be essential that there is good communication with family members to ensure their views are properly sought and considered. The Judgment is clear that if there isn’t agreement between all involved an application to the court is still needed to resolve these issues.

I await with interest the guidance currently being prepared by the BMA , GMC and RCP as to how these decisions will be made.

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