Alex RKIn NHS NW London ICB [2024] EWCOP 35, the Vice-President of the Court of Protection, Theis J, gave a careful and considered judgment about the continuation of clinically assisted nutrition and hydration (‘CANH’) of Z, a 70 year old man in a prolonged disorder of consciousness. Of enormous importance to the family, the majority of the issues in the case will be familiar to those working in the field, and I do not set them out here. A novel point raised, though, was raised by the man’s sister, given the evidence before the court that death following the withdrawal of CANH would usually take 1-3 weeks. Z’s sister was clear that he would not wish to be in his current state, but that:
32. In her view Z would, like most of us, want ‘a quick painless passing, knowing how [Z] was also very practical and pragmatic I believe that given all the aspects of this tragic situation and available options now he would not see a managed withdrawal of the CANH as the worst thing and that he would consent to this.’
At paragraph 70, Theis J noted:
As Mr Patel observed when the time comes for us all everyone would want what W says Z would want; a quick and dignified death. That is not an option in this case. What I have to do is look at the wide canvas of evidence and consider what is in Z’s best interests as between the available options.
At paragraph 71(1), she noted, in this context, that one of the benefits of continuing treatment could be said that could be said to:
the hope that Z would die quickly through some other cause, such as a cardiac arrest. Whilst that is a consideration, the reality of the medical evidence is that this is not more than a hope if CANH is continued. Even if such an event does take place, it may and probably will involve other complications.
She noted at paragraph 71(9):
In seeking to understand Z’s wishes and feelings, beliefs and values there is unanimity that he would not want to live in his current condition. I agree. There are then differing views about what his wishes would be if he could not die swiftly. No one suggests Z had this discussion with them. W relies on the fact that he searched dying with dignity after his diagnosis. What W says is that Z would find it difficult to accept the changes to his body brought about if CANH was discontinued. Even accepting that some changes may take place it has to be balanced with the alternative which is for him to remain living, possibly for a number of years, in a way that everyone accepts he would not want. As Dr H described he did not believe that Z would wish to be ‘remaining alive at all costs in a state of permanent unconsciousness from which all semblance of a treasured identity has since departed’.
Comment
For those who want to understand more about the dying process following the withdrawal of CANH, I would recommend this article by Lynne Turner-Stokes and others. As the Royal College of Physician’s guidance on PDOC makes clear (see section 5B), there are steps that can lawfully be taken to seek to palliate any distress that may be suffered by the patient in the period after withdrawal. The doctrine of double effect makes clear that it is lawful for such steps to be taken, even if they have the incidental effect of shortening the person’s life. However, Z’s sister, and Theis J, were undoubtedly right that the law as it stands does not allow for active steps to be taken to bring about the end of a person’s life after life-sustaining treatment that been withdrawn. And, even if were assisted dying to be made legal under the political proposals that are regularly put forward, they would not change the position in cases such as Z, because they have always been predicated on a current, capacitous, request by the individual; in a case such as Z’s, there would be no such possibility of a request being made. This article provides a fascinating and provoking thought experiment which teases out some of the implications of the fact that it is lawful to stop life-sustaining treatment in a case such as that of Z’s, but not lawful then to take steps actively to bring about their death.
