Withdrawal of Clinically Assisted Artificial Nutrition and Hydration (CANH): Need for proceedings – family member litigation friends

Tuesday 3 October 2017

M (by her litigation friend, Mrs B) v A Hospital [2017] EWCOP 19, 20 September 2017, Peter Jackson J

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M (by her litigation friend, Mrs B) v A Hospital [2017] EWCOP 19, 20 September 2017, Peter Jackson J

M, aged 50, suffered from Huntington’s disease. Her condition had deteriorated to the point that she showed no awareness of her surroundings at all and depended on CANH. There was medical evidence that she may be suffering distress and discomfort. Family members of M and clinicians were agreed that it was in her best interests not to continue to receive CANH.  The court made orders on 22 June that resulted in CANH being withdrawn from M who then received palliative care and within a short time she died.

The full judgment given at a later date included the following.

(i) Whether the proceedings were necessary when there was agreement that CANH was not in M’s best interests

The question was explicitly raised in the application. Observations were invited from the Official Solicitor. However the judge noted that he had not heard oral argument and the Official Solicitor had not been formally involved in the proceedings and that his judgment should be seen in that light. Article 2 did not mean that a hearing was required. Notwithstanding PD9E, a decision to withdraw CANH, taken in accordance with the prevailing professional guidance, would be lawful and clinicians would benefit from the protection of s 5 MCA 2005. The court would be available where there was disagreement or it was felt for some other reason that an application should be made, but this would only arise in rare cases, such as Aintree. The judge went on to note however that every case is intensely fact-specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them right to do so.

(ii) The appointment of M’s mother as litigation friend

The fact that M’s mother supported the withdrawal of CANH did not mean that she was not a proper person to act as litigation friend. There was no reason to believe that her ability to act on M’s behalf was compromised by her family relationship or by her considered beliefs about her daughter’s best interests. An independent specialist second opinion was available, of the kind that the Official Solicitor would normally commission. She was able to conduct the proceedings competently having the advantage of leading solicitors and counsel in the field.

(iii) The form of the application

The case had been brought under s 21A MCA 2005 but Ferreira v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 and Briggs [2017] EWCA Civ 1169 had since established that a person with no real awareness receiving life-sustaining treatment was not deprived of their liberty and s 21A MCA 2005 was not appropriate for the determination of the best interests issue.

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