Life at Any Cost? Clinically-Assisted Nutrition and Hydration (CANH)

Clinically Assisted Nutrition and Hydration (CANH) is a means of feeding a patient through a tube. It is classified as a form of medical treatment. The patient must consent to it; just like any other type of medical treatment. In end-of-life situations, someone other than the patient may have to consent to CANH being withdrawn.

All decisions about Clinically Assisted Nutrition and Hydration made on behalf of a mentally incapacitated person must be made in accordance with the Mental Capacity Act 2005. Decisions about CANH must be made in the best interests of the patient. It’s notoriously difficult to make decisions on behalf of a patient to withdraw treatment if they are seriously ill or injured and lack mental capacity. Sometimes the only way to resolve the issue is to apply to the Court of Protection for a decision.

Best interests decisions about Clinically Assisted Nutrition and Hydration (CANH)

The legal starting point is that it’s presumed to be in a person’s best interests to provide them with life-sustaining treatment. That presumption can be rebutted if there is enough evidence that it wouldn’t be in the best interests of the patient.

What evidence is needed to withdraw Clinically Assisted Nutrition and Hydration (CANH)?

In a case heard by the Court of Protection (May 2019)* a decision had to be made about withdrawing Clinically Assisted Nutrition and Hydration from a patient. The patient was considered to be in a minimally conscious state with no prospect of recovery. The case is particularly interesting because of the weight the judge placed on evidence that was presented about the patient’s own views on end of life care.

The patient had previously expressed a firmly held opinion

There was evidence that she had previously said she would not want to be kept alive artificially if there was little or no hope of recovery. She had expressed her opinions very clearly after experiencing a  similar situation with her own partner whose life-support was withdrawn.

The judge heard her view was consistent with the patient’s general outlook on life. Her family gave evidence about the patient’s lively and sociable lifestyle. The judge concluded the patient would not want to be kept alive in her current condition. It was therefore in her best interests for CANH to be withdrawn.

Conclusions

What this case demonstrates is that the Court of Protection is continuing to uphold previous decisions in cases that have supported the individual’s right to choose a dignified death rather than life at any cost. It also demonstrates the court’s willingness to accept evidence about the views of patients on end-of-life treatment.

The court heard evidence from family and friends of the patient about the views she had expressed and her previous experiences of similar situations. It is clear that a person’s wishes about end of life care will be taken into account even though their views may have been expressed at a time when their own life is not at stake.

The situation in respect of decisions to withdraw treatment in relation to children is especially complex and distressing. Even children who do have or previously had the capacity to consent to treatment do not automatically have the capacity to consent to refuse treatment. Where children are concerned the ‘doctrine of necessity’ will apply in situations where treatment is required to avoid an immediate and irreversible threat to life or health. This allows treatment to be given to a child without consent.

What should you do?

• Make sure your family or friends know your views on end of life care including the withdrawal of CANH.
• Preferably record your wishes either in the form of an Advance Decision or in a Lasting Power of Attorney for Health and Welfare.

* A Clinical Commissioning Group v P (Withdrawal of CANH) [2019] EWCOP 18

You can read more about the Mental Capacity Act 2005 and medical treatment here.

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