Short note: treatment withdrawal and the courts post NHS Trust v Y

In SS v CCG & Anor, decided in October 2018, but not appearing on Bailii until March 2019, Newton J had to consider whether CANH should be withdrawn from a Muslim woman in a PVS. As Newton J noted:

There is a broad consensus that it is no longer in B’s best interests for CANH to be continued, but nonetheless, I should and will review those issues later in this judgment. The application is supported by B’s husband. It is supported by the treating doctors and the nursing staff. There has been some equivocation in respect of some family members, although that position was clarified as recently as 17 October by B’s husband. There is in fact no active objection before the court. In those circumstances, it seemed to me as a matter of kindness and dignity that I should decide the case on submissions. No-one sought for evidence to be called and none was necessary. The circumstances are desperately sad.

Decided after NHS Trust v Y, which made clear that applications are not required where a robust best interests decision-making process (following the relevant guidance5) leads to a clear agreement as to where the person’s best interests lie, this is a good example of a case in which there was not sufficient unanimity, at least the outset, warranting an application to secure P’s rights. It also shows how it is possible for such applications to be resolved on submissions alone without the need for evidence.

5 Now the BMA/RCP guidance (endorsed by the GMC) available here.

Ed. As ever, I would like to express my thanks and gratitude to specialist barristers:

Alex Ruck Keene
Victoria Butler-Cole
Neil Allen
Annabel Lee
Nicola Kohn
Katie Scott
Katherine Barnes
Simon Edwards (P&A)
Adrian Ward
Jill Stavert
for their kind permission to reproduce the case summaries above which first appeared in Mental Capacity Law Newsletter, March 2019, published by 39 Essex Chambers.

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