UK court rules that doctors and families can decide in some cases

The UK’s Supreme Court has ruled that court orders are not necessarily needed before withdrawing hydration and nutrition from a comatose patient. If doctors and the patient’s family agree that on-going treatment is not in his best interests, it may be stopped without applying for a court order.

Lady Black, a Supreme Court justice, said:

“Having looked at the issue in its wider context as well as from a narrower legal perspective, I do not consider that it has been established that the common law or the ECHR (European Convention on Human Rights), in combination or separately, give rise to the mandatory requirement, for which the official solicitor contends, to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn.

“If the provisions of the MCA 2005 (Mental Capacity Act) are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court.”

The judgement was welcomed by Compassion in Dying, a sister organisation to the assisted-dying campaign group Dignity in Dying*. “Sometimes, sadly, it is in someone’s best interests to withdraw treatment, said a spokesperson. “[The judgement] will allow those closest to a person – their loved ones and medical team – to feel supported and empowered to make the right decision for the person, even when it is a difficult one.”

But it was criticised by Dr Peter Saunders, of the Christian Medical Fellowship.

Once we accept that death by dehydration is in some brain-damaged people’s ‘best interests’ we are on a very slippery slope indeed. There is a clear difference between turning off a ventilator on a brain-dead patient and removing CANH from a brain-damaged patient. In the first case the patient dies from their underlying brain injury. In the second they die from dehydration and starvation.

Similarly, PVS and MCS differ from conditions with a ‘downward trajectory’ because they are not progressive and do not in themselves lead inevitably to death.

The Supreme Court has set a dangerous precedent. Taking these decisions away from the Court of Protection removes an important layer of legislative scrutiny and accountability and effectively weakens the law.

It will make it more likely that severely brain-damaged patients will be starved or dehydrated to death in their supposed ‘best interests’ and that these decisions will be more influenced by those who have ideological or financial vested interests in this course of action.

* NB –The description of Compassion in Dying has been corrected. It is not the UK's leading “assisted dying” lobby, although Dying with Dignity, its sister organisation, is.

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Michael Cook

Michael Cook edits BioEdge, a bioethics newsletter, and MercatorNet, an on-line magazine whose focus is human dignity. He writes from Sydney, Australia.

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