End of life decisions
BMJ 2005; 331 doi: https://doi.org/10.1136/bmj.331.7528.1284 (Published 01 December 2005) Cite this as: BMJ 2005;331:1284All rapid responses
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Samanta and Samanta express concern over the Court of Appeal’s lost
opportunity to resolve ethicolegal issues surrounding the withdrawal of
artificial nutrition and hydration from incompetent patients.1 They
discuss the difficulty in choosing a standard to assess ‘best interests’.
They illustrate this difficulty with an example, where a sentient but
incompetent patient might be kept alive indefinitely by artificial
nutrition and hydration (ANH)
The Law Lords deliberated on that situation in Airedale NHS Trust v
Bland.2 Anthony Bland was a 21 year old man who was in a persistent
vegetative state for three and half years following the Hillsborough
disaster. In their ruling, allowing the withdrawal of ANH, which led to
Bland’s death, they stated that it would not be in Bland’s best interests
that his life be prolonged by ANH.
The ‘best interests’ test has become accepted as the gold standard
for surrogate medico-legal decision making and has been incorporated in
GMC guidance which states;
‘Where the patient’s wishes are not known it is the doctor’s
responsibility to decide what is in the patient’s best interest.’3
However there exists no framework to assess what constitutes ‘best
interests’.
In the example above it is difficult to see how a course which
inevitably leads to death can be seen as being in that persons best
interest?
This raises the question ‘Whose best interests are we considering?’
I suggest it is the medical professionals,some carers and the majority of
society. The concept of best interests is inherently paternalistic.
The new Mental Capacity Act 2005 appears to redress this imbalance by
giving consideration to the incompetent person’s previous autonomy. The
Lasting Power of Attorney set up by the act, replaces the Enduring Power
of Attorney. LPAs can extend to personal welfare decisions as well as
financial affairs. The attorney,however, must exercise his power subject
to the ‘best interests’ requirements in the Act. We are back at the
beginning.
It has been suggested that the best interest test be replaced with a
substituted judgment test in these circumstances.4 The objective
assessment could be - What would the reasonable person of a similar type
and character have decided in the prevailing circumstances?
In most situations substituted judgments and best interest
considerations would coincide.
However a substituted judgment test would not be subject to ethical
arguments such as the one raised above; ‘How can it be in a person’s best
interests to die?’
It allows greater consideration of a person’s preferences, explicit or
implicit. A complex best interest balance sheet woud not be required.
This would be a more honest approach.
Arun Chopra Senior House Officer Psychiatry
Queens Medical Centre, Nottingham NG7 2UH
1. Samanta,A Samanta, J. End of life decisions. BMJ 2005; 331:1284-
1285(3 December.)
2. In Airedale NHS Trust v Bland [1993] 1 All ER 821
3. General Medical Council. Withholding and withdrawing life-prolonging
treatments: good practice in decision-making. London: GMC, 2002.
4. Mason, JK, McCall Smith, RA, Laurie GT. 2002 Law and Medical Ethics.
6th Edition. Pg. 519. Edinburgh. LexisNexis Butterworths
Competing interests:
AKC is an MA candidate in Medical Ethics and Law,Keele University.
Competing interests: No competing interests
Duty to treat does not ground in personal autonomy
In their recent editorial1 Samanta A and Samanta J appear to have
missed a singularly important point arising out of the case of R (Burke)
v GMC2 . The Court of Appeal approved the proposition that a doctor is not
bound by a direct patient request for a treatment that the doctor feels is
not clinically indicated.
Doctors are bound by many obligations to act to benefit their
patients when there is a clinical indication. However the Court of Appeal
made clear that legal obligation to provide treatment is not grounded in
personal autonomy or the right of self-determination.
In Burke the evidence was that during the final stages of his
condition (spino-cerebellar ataxia) Mr Burke would loose his ability to
communicate before his sentience. He desired that artificial nutrition and
hydration (ANH) should be provided. The Court of Appeal distinguished life
-prolonging ANH from ANH which could not prolong life or might even
shorten it. The Court did recognise that this distinction would be
difficult to draw in practice. If the ANH was in the latter category a
conflict of views might arise between Mr Burke and those responsible for
his medical care. The principle that emerged was that ultimately a patient
could not demand a treatment which a doctor considered adverse to the
patient’s clinical needs. However on the facts of the case this scenario
was extremely unlikely to arise in practice.
This is an important result. Whilst the individual wishes of a
competent patient can operate to prevent a clinically indicated treatment
through the refusal of consent3 those same wishes can not impose an
obligation upon a doctor to deliver a treatment that the doctor believes
is not clinically indicated. This is the case even when a patient is
incompetent but sentient.
The consequence is that the relationship between patient and doctor
must operate to improve patient welfare as objectively assessed by the
doctor but only to the extent that the patient is willing to accept. This
case is not a step backwards towards medical paternalism, it is a step
forwards towards recognising that modern healthcare is a joint enterprise
with the goal of improving patient welfare.
1 Samanta A, Samanta J. End of life decisions. BMJ. 2005;331:1284-
1285.
2 R (the application of Oliver Leslie Burke) v General Medical
Council (defendant) and Ors [2005] EWCA Civ 1003.
3 St George’s Healthcare NHS Trust v S [1998] 3 All ER 673.
Competing interests:
None declared
Competing interests: No competing interests