Decisions to withhold or withdraw treatment in the terminally ill are often highly complex. Dr Gerard Panting explains the current legal position
The question of whether to withdraw or withhold medical treatment gives rise to a number of moral and legal dilemmas. These are made even more complex by advances in medical technology, limited NHS resources and conflicts between relatives and healthcare professionals over what constitutes the best interests of the patient.
These issues have provoked intense public debate, with newspaper reports of patients being left to starve to death on geriatric wards, at least one high profile criminal prosecution and the introduction by Ann Winterton MP of a private member's Bill – The Medical Treatment (Prevention of Euthanasia) Bill, which failed to become law.
The GMC has consulted widely on this difficult aspect of care but has not yet published definitive guidance on the subject.
What the law says
The basic legal principles relating to these issues are quite straightforward, but their application in practice creates difficulties.
The first principle is that any act or omission intended to cause or hasten death is a criminal act amounting to murder or attempted murder.
In the Cox case, a consultant rheumatologist was charged with attempted murder.1 The prosecution alleged that Dr Cox injected potassium chloride intravenously with the intention of ending the life of his patient. In his summing up to the jury, Mr Justice Ognall said:
'If he injected her with potassium chloride for the primary purpose of killing her, or hastening her death, he is guilty of the offence charged.'
He went on to explain to the jury:
'Proof of murder would require proof that the doctor's conduct actually caused her death. The prosecution have told you that, having regard to Mrs Boyse's condition on that morning, they cannot exclude the possibility that, in fact, she died of natural causes between the actual injection of potassium chloride and her death. That is, before the potassium chloride took its effect. It is for this reason, because they cannot exclude that possibility, however remote, that the charge is not one of murder, but of attempted murder.'1
Providing assistance to an individual intending to commit suicide is also a criminal act. Section 2 of the Suicide Act 1961 states:
'A person who aids, abets, counsels or procures the suicide of another or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.'
However, the law does not require doctors to provide treatment that is futile or burdensome and does allow the provision of symptomatic relief even where a side-effect of that treatment may be the shortening of life.
The law also allows the withholding or withdrawal of medical treatment that is not in the patient's best interests even where the result of withholding treatment is death. Artificial feeding and hydration constitute medical treatment.
Withholding treatment that may prolong life
In the Bland case,2 Lord Goff first confirmed the fundamental principle of the sanctity of life recognised in Article 2 of the European Convention on Human Rights and Article 6 of the International Covenant on Civil and Political Rights.
Tony Bland was in a permanent vegetative state, having been crushed in the Hillsborough Stadium tragedy in 1989. Lord Goff stated:
'But this principle, fundamental though it is, is not absolute. We are not, however, concerned with cases such as these. We are concerned with circumstances in which it may be lawful to withhold from a patient medical treatment or care by means of which his life may be prolonged. But here too there is no absolute rule that the patient's life must be prolonged by such treatment or care, if available, regardless of the circumstances.'
Later, Lord Goff said:
'I am of the opinion that there is, nevertheless, no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist. It is scarcely consistent with the primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent that the law should provide no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate if that was his wish that he did not consent to it.'
Patients who are competent
The treatment of patients who are competent is governed by their consent or refusal of treatment – a principle recently confirmed in the case of Miss B. Furthermore, patients who are incompetent but who have made an advance directive, in effect refusing in advance certain forms of medical treatment, should have their wishes respected provided they were competent at the time the advance directive was signed.
This point again emerged in the Bland case. Lord Goff stated:
' It is established that the principle of self-determination requires that respect be given to the wishes of the patient, so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for the care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. To this extent, the principle of the sanctity of human life must yield to the principle of self-determination and, for present purposes perhaps more important, the doctor's duty to act in the best interests of the patient must likewise be qualified. On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued.'
Lord Goff then considered the effect of advance directives, also known as living wills or advance refusals:
'Moreover, the same principle applies where the patient's refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances, especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred.'
With reference to suicide, Lord Goff then stated:
'I wish to add, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so.'
Patients who are not competent
Incompetent patients should be treated according to their best interests, as opposed to their best medical interests. This poses a particular dilemma when decisions are, in effect, being made for a patient who may not have been known to the healthcare team before he or she became incompetent.
This raises the difficult issue of the status of relatives. In England, Wales and Northern Ireland, no one can provide consent on behalf of an incompetent adult. However, relatives and others close to the patient should be able to provide an insight into the patient's preferences, which will inform discussions on what does or does not promote his or her best interests.
Where possible, a consensus should be reached, but inevitably, from time to time, disagreements will occur, perhaps necessitating further clinical and legal advice. However, ultimately, any decision to withdraw or withhold life-prolonging treatment is the responsibility of the senior clinician in charge of the patient's care once he or she has taken into account all available views and insights into the patient's wishes.
Determining what amounts to a patient's best interests is made by referring to a responsible body of medical opinion.3 However, in particularly testing situations including persistent vegetative state cases, the matter should be referred to the High Court for a judge's declaration that to withdraw treatment would not be unlawful.
The Adults with Incapacity (Scotland) Act 2000
The situation is different in Scotland. The introduction of the Adults with Incapacity (Scotland) Act 2000 allows a welfare attorney to be appointed. He or she is empowered, subject to certain safeguards, to make treatment decisions on behalf of the patient.
The purpose of the Act is to allow decisions to be made on behalf of adults who lack the capacity to consent themselves due to mental disorder or inability to communicate.
The decisions concerned may be about the adult's property or finances or about personal welfare, including medical treatment.
Part 2 of the Act, which deals with welfare attorneys came into force on 2 April 2001.
Attorneys, exercising their powers under the Act, must observe five principles:
- Minimum intervention
- Taking account of the wishes of the adult
- Consultation with relevant others
- Encouraging the adult to exercise whatever skills he or she has.
Codes of practice have now been published under the Act offering guidance on the legislation itself and further practical information.
Although similar legislation has been mooted in England, there are no imminent proposals for a Bill to be placed before Parliament.
End of life decisions and the law governing medical care for patients near death are complex. In cases where there is any doubt, clinicians should always seek advice.
- R v Cox . 12 BMLR, 38.
- Airedale NHS Trust v Bland . 12 BMLR, 64.
- Re F v West Berkshire Health Authority . 2 AC 1.