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The recent Supreme Court judgment given by Lady Black1 removed the requirement to obtain legal sanction for every decision to withdraw clinically assisted nutrition and hydration from people who lack capacity through “prolonged disorders of consciousness” (PDOC). This represents the culmination of a paradigm shift over the past six years, moving from a focus on a patient’s diagnosis and level of awareness to a focus on the patient’s best interests. It returns clinical decision making to the clinical team, including families.2 It removes the exceptionalism that has grown around this decision.
The judgment confirms that there is “no requirement in domestic law for an application to the court” and that “the combined effect of the MCA 2005 [Mental Capacity Act 2005], the Mental Capacity Act Code, and the professional guidance, particularly that emanating from the GMC [General Medical Council]” provides a sound, protective regulatory framework. Black concludes that existing law and guidance34 are sufficient to ensure good practice, primarily through using the best interests process.5
Turning to the previous emphasis on categorising a patient’s clinical state, Black also expressed “difficulty in accepting that there are readily apparent and watertight categories of patient, with PDOC patients clearly differentiated from, say, patients with a degenerative neurological condition or critically ill patients, in such a way as to justify judicial involvement being required for PDOC patients but not for others.”
Clinical teams can thus be reassured that there are no clinical features that distinguish between, and allow rational categorisation of, patients on the basis of cognitive dysfunction or causation2; nor are there any clinical, legal, or moral features that distinguish decisions made for patients with PDOC from those made in the best interests of patients with other conditions. Furthermore, there are no features that distinguish decisions about hydration from all other similar decisions that may lead to the death of a patient, such as stopping ventilation or not treating severe infection. The process should be identical in all situations.
Black highlighted that any exceptional and separate process for one group of patients may inadvertently harm patients through delaying decisions...