The duty of a Physician
The Court of Protection declares itself on both welfare and financial issues for people who cannot make decisions by themselves when they ‘lack mental capacity’. The court determines whether a person has the mental capacity to make arrangements for themselves. It assigns deputies or accords, which grants those assigned permission to choose on their behalf. It also concludes on the granting / refusal of consent to authorise / continuity of treatment by a person providing healthcare to the vulnerable person; whether life-sustaining medical treatment is to be suspended, and decisions concerning complex ethical dilemmas. The deputy will discuss contentions with the family, but ultimately, he or she will make the final decision. When there is a conflict between the resident’s patient or family, the NHS Trust or the treating the nursing home, the court must regulate what is in the best interests of those people.
The general rule is that life-sustaining treatment can be ceased without court authorisation if the following conditions are met: the principles of the Mental Capacity Act 2005, the British Medical Association and the Royal College of Physicians’ guidelines are observed, and the discussion regarding what is in the best interests of the patient. If at the end of the assessment and best interests decision-making process, there is a medical opinion division or a debate as to whether a proposed course of action is in the best interests of the patient, between family members and doctors, then the court’s consent will be necessary. When a lack of capacity has been based, any plans must be made in the patient’s best interests. The concept of the best interests is not defined in the Mental Capacity Act 2005, however, Article 45 established a list of factors that must be taken into consideration to reach a verdict. The courts have also pointed out a multitude of circumstances, that ‘best interests’ is a large concept, such as in the cases of Re G (Education: Religious Upbringing), 6 Re A (A Child), and several others.
According to the British Medical Association and the Royal College of Physicians’ guidelines, if after completing the investigation, clinicians believe that it is not in the patient’s best interests to continue treatment, a second opinion should be obtained from a senior clinician. It seems that in Lilia’s case, this guidance was not suggested, in fact, it was the father who begged the court for a second opinion.
The withdrawal of life-sustaining treatment with the deliberate intention of causing death to another supports a definition of passive euthanasia. In 1989, as a result of a severe accident, Tony Bland was left in a persistent vegetative state (PVS); some months later, Bland’s doctor proposed to withdraw all treatment. The coroner and the police stated that such an action would amount to murder, but Bland’s parents agreed with the physician as they thought there was unfortunately little hope in keeping him alive. Three years later, the Airedale Hospital Trust applied to the High Court for the clinically assisted nutrition and hydration (CANH) to be stopped – Bland died nine days later. Bland’s case is the first regarding withdrawal of life-sustaining treatments, including artificial nutrition and hydration (ANH), to have been dealt with in English legal history. In the UK, medical treatment can now legally be removed if found hopeless – Bland’s case shaped the Mental Capacity Act 2005.
Nowadays, the withdrawal of treatment is still a highly controversial topic. Opponents rely on numerous arguments, such as the slippery slope that voluntary passive euthanasia could influence, to involuntary passive euthanasia becoming a natural development. There is no definitive way to measure whether a patient’s treatment is hopeless or to predict when death will occur. The withdrawal of treatment may be used for immoral reasons, therefore, when a patient lacks the mental capacity, it must be questioned whether their family have virtuous motives when advising a physician on what the patient would desire. The relatives may seek inheritance money that would follow after the patient’s death and therefore neglect the patient’s best interests. In Lilia’s case, she left a suicide note stating ‘take the money to hire a counsellor, that is the only thing I can do for you now…’
It may be reasonably assumed by some that there was a financial element in this situation. What if the patient, in a conscious state, would not have wanted his or her treatment withdrawn, yet was unable to express this? Indeed, what if Lilia would have decided to continue the treatment? The difference between brain death and a vegetative state is that it is possible to recover from a vegetative state; progress has been made and there are now many ways to reverse a disorder of consciousness. Some patients who have suffered a sudden-onset brain injury leaving them in a vegetative, or minimally conscious, state (collectively referred to as prolonged disorders of consciousness (PDOC)) are in this state for many years. The RCP guidelines recommend an assessment at 3-4 months after an initial injury, in a specific PDOC unit. Lila attempted suicide on 18 January 2020, and in my opinion, the period has not been respected, and whether the CANH should be stopped has been concluded too early. As stated by James, ‘Is a doctor’s duty to prolong life; to do whatever is in the best interests of the patient? Can we define medical treatment as futile?
Does this mean that life is futile? A doctor should do whatever is in his power to sustain life!’
I firmly believe that court leave should become mandatory, whatever the context. The Court of Protection should verify that all guidelines have been respected and intentions well-meaning. On another hand, ‘Advance Decision to Refuse Treatment’ sets out the situations in which if we want to refuse medical treatment, should we lack the capacity to make or communicate that decision in the future – advance early decisions’ should be encouraged.
https://www.bailii.org/ew/cases/EWCOP/2021/727.html
https://www.bma.org.uk/media/1161/bma-clinically-assisted-nutrition-hydration-canh-full-guidance
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