Situations where patients in an unconscious or minimally conscious state are being kept alive only because of intervention by medical technology are relatively commonplace. A recent case dealt with the issue of whether the approval of the court is necessary to turn off the machines keeping a patient alive by the use of Clinically Assisted Nutrition and Hydration (CANH).

Mr Y suffered a major heart attack, as a result of which his brain was deprived of oxygen for 10 minutes, causing major and irreparable brain damage. He has no responsiveness to his surroundings and clearly lacks capability to make a reasoned judgment about his future care. Medical staff are of the opinion that it is extremely unlikely that he will ever regain consciousness.

His family consider that in circumstances such as this he would not want to be kept alive. However, he did not make any advance care directive or give specific guidance that he wanted his life support switched off were he in a totally unresponsive state.

The consequences of ceasing CANH would be that he would die within about three weeks. The NHS trust responsible for the hospital where he is receiving treatment went to court to obtain approval to accede to the family’s request – supported by its own clinicians – that CANH be withdrawn as it is in Mr Y’s best interests. It argued that there is no statutory or common law obligation on a trust to refer the decision to the court where, as here, there is no dispute between the clinicians and the family.

On behalf of the incapacitated man, the Official Solicitor argued that there is a requirement to refer such decisions to the court, as failing to do so would infringe his rights under the European Convention on Human Rights.

After a detailed review of the circumstances and the Mental Capacity Act 2005 (MCA), the High Court concluded that there is no rule of principle or binding authority for the proposition that all cases concerning the withdrawal of CANH from a person who lacks capacity must be sanctioned by the court. In its view, ‘where the clinicians have followed the MCA and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the Court’.

For advice on the law that applies when a person is unable to make decisions for themselves, contact our expert private client solicitors.

At nearly the same time, it was announced that a hospital that had failed to follow the terms of a patient’s advance directive, which ordered that in these circumstances their life support should be switched off, was required to compensate the patient’s family.

The NHS trust concerned had lost the directive and the patient was kept alive against their wishes for two years. The family received £45,000 in damages.