Report No. 196
(iii) Is there a legal requirement to obtain Court authorization before withdrawing ANH in every one of the cases specified by Munby J?
Munby J had declared that 'in certain circumstances', this question must be answered in the affirmative. He listed five categories of cases and observed that paras 38 and 82 of the Guidance are therefore illegal. These categories are as follows:
(i) where there is any doubt or disagreement as to the capacity (competence) of the patient; or
(ii) where there is lack of unanimity amongst the attending medical professions as to either
(a) the patient's condition or prognosis; or
(b) the patient's best interests; or
(c) the likely outcome of ANH being either withheld or withdrawn; or
(d) otherwise as to whether or not ANH should be withheld or withdrawn; or
(iii) where there is evidence that the patient when competent would have wanted ANH to continue in the relevant circumstances; or
(iv) where there is evidence that the patient (even if a child or incompetent) resists or disputes the proposed withdrawal of ANH; or
(v) where persons having a reasonable claim to have their views or evidence taken into account (such as parents or close relatives, partners, close friends, long term careers) assert that withdrawal of ANH is contrary to the parents' wishes or not in the patient's best interest."
Para 38 of the Guidance requires that a clinician with relevant experience be consulted (from another discipline such as nursing) where the doctor has limited experience or is in doubt about options or the patient is not likely to die immediately or there are differences among the doctors. Para 82 says that where significant conflicts arise about whether artificial nutrition or hydration should be provided, either between doctors and other members of the health team or those close to the patient, and it is not possible to resolve the conflict, the doctor should seek legal advice.
The Court of Appeal held that even assuming that the five situations mentioned by Munby J are cases where the Court has to be approached, the Guidance paras 38 and 82 are not unlawful merely because they do not state that Court sanction is required in such cases.
The Court of Appeal learnt from the Intensive Care Society (ICS) that each year approximately 50,000 patients are admitted to ICU and out of these 30% die in ICU or in the wards before discharge. Most of these die because treatment is withdrawn or limited, where the treatment would have merely prolonged the process of dying.
But, if Munby J's directions for approaching Court in all the five contingencies, were to be accepted, the ICS said that every day 10 applications have to be made to the Court and this would be impractical. The Court of Appeal held:
"In the event, we do not consider that the Judge is right to postulate that there is a legal duty to obtain Court approval to the withdrawal of ANH in the circumstances that he identifies"
They said that it may be a matter of 'good practice' to obtain Court approval but it cannot be made mandatory in every case, even where there are differences. Munby J had however observed that after the judgment of the European Court in Glass v. UK: 2004 (1) FLR 1019 (= 2004 Lloyds Rep Med 78), what under English law was a 'rule of practice' had become a 'rule of law'.
The Court of Appeal examined this aspect by referring to the facts in Glass v. UK in detail and found that the European Court merely held that, on the facts, the doctors, who were treating a minor whose guardian (mother) did not consent to administration of diamorphine, had ample time to move Court and that the doctors failed to do so. The European Court had not laid down any rule of law. It pointed that the case was not one of emergency. The observations of Munby J were, therefore, not accepted.
Before we part with this case, we have to refer to para 71 of the judgment of the Court of Appeal which deals with the question whether the Court which is approached is indeed making lawful what is otherwise unlawful. The Court said that is not the effect of the declaration. This is only a matter of 'good practice'. It referred to Airedale as follows:
"We asked the Gordon to explain the nature of the duty to seek the authorization of the Court and he was not able to give us a coherent explanation. So far as the Criminal Law is concerned, the Court has no power to authorize that which would otherwise be unlawfu.- see for instance the observation of Lord Goff of Chievley in Bland at p. 785H. Nor can the Court render unlawful that which would otherwise be lawful. The same is true in relation to a possible infringement of Civil Law.
In Bland, the House of Lords recommended that, as a matter of good practice, reference should be made to the Family Court before withdrawing ANH from a patient in a PVS, until a body of experience and practice had built up. Plainly, there will be occasions in which it will be advisable for a doctor to seek the Court's approval before withdrawing ANH in other circumstances, but what justification is there for postulating that he will be under a legal duty to do so"
The Court of Appeal held it was not a matter of 'legal duty' but only of 'good practice'.