Challenges to ‘best interests’ decisions – case update
We continue to see ‘best interests’ decisions being challenged around the withdrawal of clinically assisted nutrition and hydration (CANH): Re RW  EWCA 1067.
In this case, before September 2017, RW had been cared for at home by PW, one of his four sons. On 14 September 2017 RW was admitted to hospital and a nasogastric tube (NG tube) was inserted – he was acutely ill.
His sons were not happy with his care and moved him to a second hospital on 28 September 2017 and then to a third hospital and all the while the NG tube was in situ. RW has end stage dementia which often necessitates artificial feeding – there were numerous instances when the NG tube came out and had to be re-sited.
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Various options for RW continued treatment were discussed with the family from 23 November 2017 onwards including the withdrawal of CANH.
The family were asked to keep to no more than 30 minute visits individually during normal visiting hours but not permitted to remain while personal care was being provided largely due to their confrontational behaviour.
RW is ready to be discharged into community but there is disagreement between his doctors and the family – the doctors and the expert doctor agree that RW’s medical condition was such that he should have the NG tube removed before discharge.
The expert doctor gave evidence that long term NG tube feeding in the community for adults with dementia is unusual and very rare. Due to the risks associated with continual dislodgement it was not in RW’s best interests to be discharged home with an NG tube in place – ‘his existence is undignified’ said the expert doctor.
The family’s view was that RW should be discharged into their care with the NG tube – PW has extensive experience of the siting of such tubes as his daughter had one.
Evidence was given by the family of RW’s pathological hatred of hospitals – he had always said he did not want to die in hospital.
The legal approach
The checklist of factors which must be taken into account when determining ‘best interests’ of a person who lacks capacity is in s.4 Mental Capacity Act 2005 (MCA 2005). In Aintree v James  UKSC 67 Baroness Hale said that the purpose of the ‘best interests’ test is to consider matters from the patient’s point of view.
It was important to also take into account P’s wishes & feelings if ascertainable – even if these sit badly against the very strong presumption of preserving life.
The Code of Practice to the MCA 2005 says at para 5.31:
“All reasonable steps which are in a person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or whether there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life sustaining treatment, even if this may result in the person’s death.”
In this case there was no evidence of RW’s wishes and feelings about CANH and the medical evidence showed only risks and pain and no benefit to continuing with the NG tube on discharge from hospital. So the Court approved its withdrawal.
There was another issue in the case about whether there should be privacy or public accessibility to know who was involved – the family wanted their father’s name to be publicised because he had enjoyed a high profile life and they felt he would wish to highlight his treatment. The court did not approve this as the doctors had the right not to be revealed.
The withdrawal of CAHN was also at the heart of the leading case of NHS Trust v Y  UKSC 46. The Supreme Court has handed down their judgement in the case involving Y, a man who was suffering from a prolonged disorder of consciousness (PDOC) who required CAHN to stay alive.
The issue was whether or not it was mandatory before the legitimate withdrawal of CAHN to obtain a court order. Legitimate withdrawal of CAHN had to be based on whether that act was in P’s best interests.
The Supreme Court held that if the provisions of the Mental Capacity Act 2005 were followed and the relevant guidance observed and if there was agreement on what was in the best interests of the patient the patient could be treated in accordance with that agreement without application to court.
- Airedale NHS Trusts v Bland  AC 789
- Re Briggs  EWCA 1169
- Re M (withdrawal of treatment need for proceedings)  EWCOP 19
- ECHR – Lambert v France – 46043/14 (2016) 62 EHRR 2
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