Decisions about CANH: court says patients’ wishes and feelings prior to incapacitation should prevail over the strong presumption in favour of preserving life

Decisions relating to the withdrawal of clinically assisted nutrition and hydration (CANH) for an adult who lacks capacity can now be taken without the need for Court of Protection approval. However, an application is required where there is disagreement about whether it is in the patient’s best interests to withdraw CANH or where the approach is finely balanced. The Supreme Court’s decision in An NHS Trust v Y confirmed the position.

Latest case serves as a reminder of the process

P was the subject of an application brought by the CCG, with support from P’s family and the Official Solicitor that CANH should be withdrawn from P. She had suffered a drug overdose in 2014 and this left her with traumatic brain injury. Since then she had been in a minimally conscious state and placed on life support and CANH. Following initial treatment, P was discharged from hospital to a nursing home unit.

Previously, P had been in a relationship with a man who had sustained a brain injury and was involved in decision-making around the withdrawal of care for him. Within that process, P had indicated that she would not want to be left in such condition if anything happened to her – a view she had expressed to different family members. 

P’s family wished to have CANH withdrawn. However nursing staff at the unit did not agree to CANH being withdrawn. They felt P showed signs of awareness. The staff at the unit made clear, within the context of P’s proceedings, that they had a “strong pro-life (their term) ethos”. P’s neurologist maintained a neutral position; both he and P’s GP declined to act as a decision-makers in relation to the withdrawal of CANH.

The decision

Last month the CoP granted the CCG’s application.

The court made it clear it needed to look at P’s best interests in the widest sense, beyond her medical condition. Acknowledging its profound respect for the sanctity of life, the court focused on P’s diagnosis, prognosis and her wishes and feelings. It was satisfied that P lacked capacity to make decisions about her treatment and that it was in her best interests for treatment to be withdrawn. 

P did not have an advance decision, nor any other written document setting out her wishes in these circumstances. However the court was satisfied that “when speaking of the termination of her former partner’s life support P did make clear that she would not want to be left in such a condition, if anything happened to her and that she commented that ‘if it ever happened to me I would not want to be a cabbage’.”

Within this context, the court was “satisfied that on the balance of probabilities that prior to becoming incapacitated, P expressed a clear and firmly held view that she would not want to be kept alive” in these circumstances.

The judgment very clearly expresses the need for thorough assessment in line with the professional guidance from the British Medical Association and Royal College of Physicians on CANH before decisions are taken. It also emphasised the need for a proper plan around end of life care for P.

You can read the full judgment here.

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