In Re Y EWHC 2866 (QB), handed down this morning (13 November), O’Farrell J has declared that it is not mandatory to bring before the Court of Protection the withdrawal of CANH in the case of Mr Y, who has prolonged disorder of consciousness, in circumstances where the clinical team and Mr Y’s family are agreed that it is not in his best interests to receive that treatment. The judgment is important because it is a judgment from the High Court, rather than the Court of Protection, making a declaration as to the legal requirements. It is also important because the Official Solicitor was formally involved (as Mr Y’s litigation friend). There is, in the circumstances, no question that the conclusions of the judge – which would apply in other, similar, cases – are obiter, unlike the question mark that has been placed by some over the conclusions of Peter Jackson J in Re M.
The court has granted permission to the Official Solicitor to appeal, and certified it as fit for “leapfrog” to the Supreme Court, as well as for expedition. If the Supreme Court grants permission, it is likely, therefore, that the issue of whether, when and why cases of CANH withdrawal need to come to court will be considered by the highest court in the land in the very near future.