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No court application needed to withdraw nutrition if agreed to be in patient’s best interests

Peter Jackson J agrees that absence of funding when such cases are necessary is 'alarming'

The High Court has handed down judgment in a case concerning withdrawal of clinically assisted nutrition and hydration (CANH) from a 50-year-old woman, referred to as M, with end stage Huntington's Disease.

In M v A Hospital [2017] EWCOP 19 the woman's mother and litigation friend applied to the Court of Protection requesting, in effect, that the court 'if required' determine that it would be in M's best interests not to continue to receive clinically assisted nutrition and hydration, with the consequence that she would die. On 22 June 2017 Peter Jackson J made the orders requested, giving short reasons and reserving fuller judgment. On 24 July, CANH was withdrawn from M, who then received palliative care, and on 4 August she died.

The court was asked to determine whether the application had been necessary, since the family and doctors were in agreement that withdrawal was in the woman's best interests. The Official Solicitor argued that every case where withdrawal of CANH is requested should come before the court. 

Peter Jackson J concluded that no court application was required. He said:

"The decision about what was in M's best interests is one that could lawfully have been taken by her treating doctors, having fully consulted her family and having acted in accordance with the [Mental Capacity Act] and with recognised medical standards."

Peter Jackson J also addressed the issue of funding cases in which families do need specialist legal representation to enable serious medical treatment issues to be resolved and in which there is at stake a right to life. In this cases the proceedings had been brought as a deprivation of liberty challenge. Peter Jackson J said:

"I strongly support the observations of Baker J in W v M [2011] EWHC 2443 (Fam) at [260], where he described the absence of funding for families as 'alarming'. Whether the state is obliged to provide funding to ensure that a fair hearing is possible in those cases that do have to come to court may need to be determined in a future case."

Caroline Barrett, of Irwin Mitchell, who acted for M, said:

"This judgment has great legal significance in that if relatives and doctors are in agreement, and after following the medical guidelines issued by the Royal College of Physicians it is agreed that withdrawal of treatment is in the patient's best interests, the court has confirmed that there is no legal requirement for a court order before the treatment can be withdrawn. Doctors and patients will be acting in accordance with the law, set down by the Mental Capacity Act 2005. This will allow those suffering with terrible diseases such as Huntington's, or other terminal or life limiting illnesses, to pass away with dignity, easing the suffering and pain for all involved."

For the judgment, click here.

22/9/17