New guidance on decision about clinically assisted nutrition and hydration and adults who lack capacity in England and Wales

The British Medical Association (BMA) and Royal College of Physicians have published new guidance, endorsed by the General Medical Council, on decision-making about clinically assisted nutrition and hydration (CANH) and adults who lack capacity to consent.

The development of the guidance follows a series of legal cases which has created confusion about the precise circumstances in which an application to the court is required before CANH is withdrawn which has culminated with the decision of the Supreme Court in National Health Service (NHS) Trust versus Y. 1 This confirmed that there is no requirement to go to court, providing there is agreement as to the patient’s best interests, the provisions of the Mental Capacity Act 2005 have been observed, and the relevant professional guidance has been followed.

The new guidance covers all decisions to start, restart, continue, or stop providing CANH in patients who are not imminently dying, in circumstances where CANH is the primary life-sustaining treatment being provided. It goes beyond the category of patients in permanent vegetative state or minimally conscious state who have previously been the subject of court applications, and also covers decisions for patients with neurodegenerative conditions and patients who have suffered a sudden onset brain injury in addition to having multiple comorbidities or general frailty which is likely to impact on life expectancy.

It provides a clear statement of doctors’ legal responsibilities, covers the importance of robust best interests’ assessments and sets out the process to be followed for sufficient independent scrutiny of decisions (provided through a second clinical opinion and various audit and review processes). In light of some of the identified problems with decisions about CANH, a particular focus of the guidance is on the importance of regular best interests’ assessments, and it provides detailed practical guidance about how to approach these.

The development of …