Abstract:
In 2018 the United Kingdom Supreme Court decided in An NHS Trust v
Y [2018] 3 WLR 751; [2018] UKSC 46 that the time had come to move on from
the “good practice” requirement in Airedale NHS Trust v Bland [1993] AC
789 for hospitals and doctors to obtain court approval before life-prolonging
treatment can be withheld or withdrawn from a patient in a permanent
vegetative state (PVS). It held that it is no longer necessary to involve the court
in every case before life-sustaining clinically assisted nutrition and hydration
(CANH) can be withdrawn. Provided the provisions of the Mental Capacity
Act 2005 (England and Wales) and relevant professional guidance are
followed, and there is no difference of medical opinion or lack of agreement
from interested parties, in particular family members, with the proposed
course of action, legal permission is not required. The ruling applies to PVS
patients, as well as, more controversially, those in a minimally conscious
state (MCS), the newer diagnosis identified post-Bland. This commentary
summarises the Supreme Court’s decision, and considers some implications
for England and Wales, as well as for Australia and New Zealand, where
there is no recommended practice of, much less any legal requirement for
hospitals to seek court approval, even in disputed cases.
