An investment banker who sustained severe brain damage after a cardiac arrest is being kept alive against the wishes of his family and doctors because the official solicitor has intervened to prevent his death.
The unusual case, which is likely to be referred to the supreme court for an emergency hearing, tests whether relatives and medical staff must seek judicial permission before life-support treatment is withdrawn.
On Monday, Mrs Justice O’Farrell ruled in the high court that the court of protection does not need to be consulted in cases, such as that of “Mr Y”, where clinicians and the patient’s family agree that it is not in the best interests of the patient to be kept alive in a coma.
However the judge anticipated that the official solicitor would appeal against her decision. It is normal practice in such cases for treatment to continue until the legal disputes are resolved.
Mr Y, 52, is said to be unaware of either himself or his environment. Before his cardiac arrest in June, he was very active despite working long hours in a stressful profession. He ran and skiied, regularly went to the gym and was said to have loved music and rock concerts. He had not left a living will or any instructions on what should happen to him in the case of sudden illness.
His wife, their two children, and his brother and sister, the court was told, all accepted that Mr Y would not want to live in a vegetative or minimally conscious state with profound disabilities.
“He would hate to be helpless and dependent on other people for his daily needs,” the judgment said. “He would not want to live in a care home.”
The judge concluded there was no legal obligation “that all cases concerning the withdrawal of CANH [clinically assisted nutrition and hydration] from a person who lacks capacity must be sanctioned by the court”.
O’Farrell cited a landmark judgment in another case, saying it had clearly established that principle. Where doctors had obeyed the Mental Capacity Act and good medical practice, where there was no dispute with the family or others close to the patient, and there were no other doubts or concerns, there was no need to bring the matter before the court, she said.
The earlier ruling, by Mr Justice Jackson, marked a significant change in how end of life cases are handled and sought to do away with unnecessary litigation for families at times of emotional strain.
It was thought that the official solicitor, who provides legal representation in cases for those unable to participate, would appeal against Jackson’s decision in September but this did not happen.
The legal dispute was now expected to be fought over Mr Y’s case, which was initiated by Vikram Sachdeva QC on behalf of the unnamed NHS trust that is treating him. The 39 Essex Chambers barrister applied to the high court for a declaration that it is not mandatory to seek judicial permission to end life-supporting treatment in such cases.
It is thought that the official solicitor is applying to the supreme court for an emergency hearing, skipping the court of appeal because of the importance of the case. It likely to trigger interventions by right to life campaigners.
If treatment was withdrawn by the NHS hospital treating Y, O’Farrell said, he would probably die within two to three weeks.
As long ago as 1993, n the case of Anthony Bland, a Hillsborough survivor who was left in a persistent vegetative state, the courts established that it was legal to stop providing treatment – including food and water – if it was deemed to be in the patient’s best interests.
Citing the Bland case, O’Farrell observed in Y’s case that “the right to life is not absolute. As a matter of principle the withdrawal of CANH from a person who lacks capacity, resulting in death, may be lawful where it is not in his best interests to continue such treatment.”
According to recent estimates there are 4,000 to 16,000 patients in a vegetative state in the UK, with many more in what is described as a minimally conscious state.
The Ministry of Justice, which handles inquiries on behalf of the official solicitor, did not immediately comment on the case.