Withdrawing Care

Can Doctors Withdraw Artificial Nutrition and Hydration Without a Court Order?

Decisions about withdrawing life-sustaining treatment are among the most difficult faced by patients, families and medical professionals.

For many years, it was generally understood that an application to the Court of Protection was required before clinically assisted nutrition and hydration could be withdrawn from a patient in a permanent vegetative or minimally conscious state.

That position changed following the Supreme Court's decision in An NHS Trust and others v Y in 2018.

The Court confirmed that an application does not have to be made in every case where doctors and family members agree that continuing clinically assisted nutrition and hydration is not in the patient's best interests.

What Is Clinically Assisted Nutrition and Hydration?

Clinically assisted nutrition and hydration, commonly referred to as CANH, involves providing nutrition or fluids through medical means rather than ordinary eating and drinking.

It may include:

• feeding through a tube inserted into the stomach;


• feeding through a tube passing through the nose;


• nutrition delivered into a vein;


• fluids delivered intravenously; or


• another medically assisted method of providing nutrition or hydration.

Although food and water have an obvious emotional and symbolic importance, CANH is legally treated as medical treatment when it is delivered through clinical intervention.

This is different from offering a person ordinary food and drink by mouth. Basic care, comfort and appropriate symptom relief must continue even where CANH is withdrawn.

The Supreme Court Case

The case concerned a man identified as Y who suffered a severe heart attack and resulting brain damage.

He lacked the capacity to make decisions about his treatment and was diagnosed as being in a prolonged disorder of consciousness.

His family and medical team agreed that continuing CANH was not in his best interests. There was no disagreement about his diagnosis, prognosis or the appropriate course of treatment.

The issue for the Supreme Court was whether the NHS Trust was legally required to obtain a court order before CANH could be withdrawn.

The Supreme Court decided that there was no mandatory requirement to apply to the court in every such case.

When Is a Court Application Not Required?

A court application may not be required where:

• the patient lacks capacity to make the treatment decision;


• the patient's condition has been properly assessed;


• the medical team agrees that continuing CANH is not in the patient's best interests;


• the family and others interested in the patient's Welfare agree;


• the Mental Capacity Act 2005 has been followed;


• relevant professional guidance has been observed;


• appropriate medical opinions have been obtained; and


• there is no uncertainty or dispute requiring judicial resolution.

The absence of a court hearing does not mean the decision can be taken casually or by one doctor acting alone.

A detailed and properly documented best-interests process is still required.

When Must the Court Be Involved?

An application to the Court of Protection should be made where there is disagreement or significant uncertainty about what is in the patient's best interests.

Court involvement may be necessary where:

• family members disagree with the medical team;


• family members disagree with each other;


• doctors disagree about diagnosis, prognosis or treatment;


• there is uncertainty about the patient's wishes;


• there is disagreement about the meaning or validity of an advance decision;


• there are allegations of improper motives;


• the proposed decision is finely balanced;


• the patient's condition is unusual or medically uncertain;


• there are concerns about the decision-making process; or


• the treatment provider considers judicial approval necessary.

Where a dispute concerns the provision, withholding or withdrawal of life-sustaining treatment, it should not be resolved simply by allowing one side to impose its view.

The Court of Protection can hear evidence, appoint representatives and make an independent decision about the patient's best interests.

The Mental Capacity Act 2005

Decisions for adults who cannot decide for themselves are governed in England and Wales by the Mental Capacity Act 2005.

The Act starts with the presumption that a person has capacity unless it is established that they do not.

A person must not be treated as unable to make a decision merely because they make a decision that others regard as unwise.

Where the person lacks capacity, any decision made on their behalf must be made in their best interests.

What Does "Best Interests" Mean?

Best interests are not limited to whether treatment can keep the patient biologically alive.

The decision-maker must consider all relevant circumstances, including:

• the medical benefits and burdens of treatment;


• the patient’s diagnosis and prognosis;


• the likelihood of recovery or improvement;


• pain, discomfort and distress;


• the patient’s past and present wishes;


• any written statement made by the patient;


• the patient’s beliefs and values;


• what the patient would probably have considered important;


• the views of family members and others close to the patient; and


• whether the decision can be delayed in case the patient regains capacity.

There is a strong presumption in favour of preserving life, but that presumption is not absolute.

Treatment does not have to be continued merely because it can prolong life. The question is whether the treatment remains in the best interests of that particular patient.

The Patient’s Wishes Remain Central

A patient who has capacity can normally consent to or refuse medical treatment, even where refusal may result in death.

Where the patient lacks capacity, evidence of their previous wishes may be especially important.

This may include:

• a valid and applicable advance decision to refuse treatment;


• a health and Welfare lasting power of attorney;


• written statements about medical care;


• religious or ethical beliefs;


• conversations with relatives or friends; and


• previous responses to serious illness or disability.

The family does not make the decision simply because they are related to the patient, unless an authorised attorney or court-appointed deputy has the necessary legal authority.

However, relatives and others close to the patient should normally be consulted because they may provide important evidence about the patient's values and wishes.

Advance Decisions to Refuse Treatment

An adult with capacity may make an advance decision refusing specified medical treatment if they later lose capacity.

An advance decision refusing life-sustaining treatment must meet additional legal requirements. It must generally:

• be in writing;


• be signed by the person making it;


• be witnessed;


• identify the treatment being refused; and


• state that the refusal applies even if life is at risk.

A valid and applicable advance decision has the same effect as a refusal made by a patient who currently has capacity.

Disputes about whether an advance decision is valid or applies to the particular circumstances may require a court application.

Is Withdrawing CANH the Same as Euthanasia?

No. The law draws a clear distinction between withdrawing medical treatment that is no longer in the patient's best interests and deliberately administering treatment intended to end the patient's life.

When CANH is lawfully withdrawn:

• the purpose is to stop treatment that is no longer beneficial or appropriate;


• the underlying illness or injury is regarded as the cause of death;


• the patient must continue to receive nursing and palliative care; and


• medication may be given to relieve pain, distress or other symptoms.

Euthanasia involves a deliberate act intended to cause another person's death and remains unlawful in England and Wales.

The debate over assisted dying is separate from the legal rules governing refusal or withdrawal of medical treatment.

What Is a Do Not Attempt Resuscitation Decision?

A decision not to attempt cardiopulmonary resuscitation is commonly known as a DNACPR decision or, less formally, a DNR.

It relates specifically to whether CPR should be attempted if the patient's heart or breathing stops.

It does not mean that:

• all medical treatment will stop;


• food and fluids will automatically be withdrawn;


• the patient will stop receiving pain relief;


• the patient will be denied nursing care; or


• other appropriate treatment cannot be provided.

Decisions about resuscitation, ventilation, dialysis, antibiotics and CANH are separate treatment decisions, although they may form part of a wider end-of-life care plan.

Withdrawal of Dialysis or Other Treatment

The same general legal principles apply to other forms of life-sustaining treatment.

Treatment such as dialysis, artificial ventilation or medication may be withheld or withdrawn where:

• a patient with capacity refuses it;


• a valid advance decision applies;


• an authorised attorney decides within their legal powers; or


• the treatment is not in the best interests of a patient who lacks capacity.

There is no legal duty to provide treatment that offers no clinical benefit or is excessively burdensome.

Safeguards Before CANH Is Withdrawn

Professional guidance requires a careful clinical and best-interests assessment.

The process may involve:

• confirming the diagnosis;


• assessing whether the patient has decision-making capacity;


• reviewing the patient’s medical history;


• obtaining specialist medical opinions;


• assessing the prospects of recovery or improvement;


• considering rehabilitation and treatment options;


• consulting family members and others close to the patient;


• searching for an advance decision or lasting power of attorney;


• holding a formal best-inter interests meeting;


• recording the evidence and reasons for the decision;


• considering an independent second opinion; and


• applying to the court where disagreement or uncertainty remains.

A decision should not be based on assumptions that a person's life has less value because they are elderly, disabled or dependent on others.

What Happens After CANH Is Withdrawn?

Withdrawal of CANH does not mean withdrawal of care.

The clinical team should prepare an appropriate palliative-care plan addressing:

• pain relief;


• anxiety and agitation;


• mouth and lip care;


• skin care and repositioning;


• breathing difficulties;


• seizures or muscle spasms;


• support for family members;


• privacy and dignity; and


• the patient's religious and cultural needs.

The precise course and timescale will depend on the patient's condition and circumstances.

Can a Family Challenge the decision?

A family member who disagrees with the proposed withdrawal of treatment should raise the concern immediately with the consultant and healthcare organisation.

Possible steps include:

• requesting a meeting with the clinical team;


• asking for the best-interests assessment and reasons to be explained;


• requesting an independent medical opinion;


• providing evidence of the patient's wishes and values;


• contacting the hospital’s patient advice service;


• obtaining urgent specialist legal advice; and


• asking the Court of Protection to determine the issue.

Where there is a genuine disagreement about life-sustaining treatment, treatment should not normally be withdrawn before the dispute has been properly resolved.

Reducing Unnecessary Legal Costs

Before the Supreme Court ruling, even cases in which doctors and families were in complete agreement could result in lengthy proceedings and substantial legal costs.

The 2018 judgment recognised that a compulsory court application in every case could:

• cause avoidable delay;


• increase distress for families;


• consume NHS resources;


• create substantial legal costs; and


• duplicate a decision already reached through a lawful clinical process.

The ruling did not remove judicial protection. Instead, it confirmed that the court should principally be involved where there is a dispute, uncertainty or another feature requiring independent scrutiny.

How a Court of Protection Solicitor Can Help

A specialist solicitor may advise on:

• withdrawal or withholding of medical treatment;


• clinically assisted nutrition and hydration;


• disputes with an NHS Trust or care provider;


• advance decisions to refuse treatment;


• health and Welfare lasting powers of attorney;


• best-interests decisions;


• capacity assessments;


• urgent Court of Protection applications;


• representation of family members;


• appointment of an independent representative; and


• human rights and medical-treatment issues.

A Difficult Decision With Important Safeguards

The Supreme Court decision did not make it easy or routine to withdraw nutrition and hydration.

It confirmed that CANH is medical treatment and that it does not always require prior court approval where everyone involved agrees, the patient's best interests have been properly assessed, and the relevant legal and professional safeguards have been followed.

Where there is disagreement, uncertainty or concern about the process, the Court of Protection remains available to make an independent decision.

Finding a Court of Protection Solicitor

Use the search facility at the top of this page to find a Court of Protection, mental capacity or medical law solicitor who can advise on life-sustaining treatment, CANH or best-interests disputes.

This article provides general information about the law in England and Wales. It does not constitute legal or medical advice and should not replace urgent specialist advice about an individual patient.