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Withdrawal of treatment

 

Briggs v Briggs (By His Litigation Friend, The Official Solicitor) and Others [2016] EWCOP 53; [2017 Med LR 88

 

Minimally conscious state – Withdrawal of clinically assisted nutrition and hydration –Consent to treatment – Best interests – Preservation of life – Self-determination – Wishes and feelings of incapacitated person – Mental Capacity Act 2005.

 

The case raises some potentially interesting ethical questions about whether a person who has suffered life-altering, permanent brain injury should be seen as being the same person as they were prior to that injury. If, post-rehabilitation, a person might lead a life which to them may be of value, should they be enabled to live and to develop into their new sense of personal identity: or can an ethical decision to withdraw treatment be made on the basis of the reported wishes of their pre-accident self? In the Briggs case, the pre-accident self wins out. Of potential concern is that this conclusion was reached in a judgment that paid no apparent attention to the wishes and feelings of the post-accident Mr Briggs – the profoundly changed person, living in his altered set of conditions, and his potential, post-rehabilitation, future self. When the pre-accident Mr Briggs had on all accounts ceased to exist, how relevant really were his former wishes – does the decision not uphold the autonomy of a person who, at the time of the decision, had departed, over and above the autonomy and potential of the one who had taken his place?

 

 

Assisted suicide/euthanasia

 

R (on the application of AM) v General Medical Council [2015] EWHC 2096 (Admin); [2015] Med LR 453

 

Assisting suicide – GMC guidance – Lawfulness of discouraging doctors to assist suicide.

 

In this case a man trapped in a “locked in syndrome” complained that the GMC's guidance in this sensitive area was not compatible with article 8 of the ECHR, and was Wednesbury unreasonable. He wanted to obtain a medical report from a doctor for the purpose of providing the evidence required by the Dignitas organisation in Zurich before it would assist him to die. It was common ground that such a step would in theory contravene the prohibition on assisting suicide in section 2 of the Suicide Act 1961. He argued that the GMC guidance would not provide assurance to a doctor that production of such a report would not trigger a fitness to practice proceedings. The judgment clearly and succinctly demonstrates that the GMC cannot be compelled to provide such assurance, even if the DPP's guidance has offered at least some comfort to those who comply with the conditions set out in it that they would not be prosecuted. It seems unlikely that the controversy around this subject will be stilled by this judgment.

 

Nicklinson v Ministry of Justice [2012] EWHC 304 (QB); [2012] LS Law Med 383

 

Locked in syndrome — Application for declarations permitting voluntary active euthanasia — Application to strike out — Whether voluntary active euthanasia might be deemed not unlawful on grounds of necessity — Whether criminalisation of voluntary active euthanasia and assisted suicide compatible with article 8 of ECHR — Whether current law and practice regulating active euthanasia compatible with article 2 of ECHR.

 

The claimant applied to the court for declarations which would allow for his life to be ended without the threat of criminal sanction and/or would compel a review of the existing criminal law which regulated voluntary and involuntary euthanasia. Specifically, he argued (a) that given the circumstances of his case and the unbearable suffering which he wished to be rid of, that the act of terminating, or assisting in the termination of, his life should be declared not unlawful on the grounds of necessity; (b) that the current law criminalising voluntary active euthanasia should be declared incompatible with his right to respect for private life under article 8 of the ECHR; and (c) that the current law regulating active euthanasia was in breach of the right to life protected by article 2 of the ECHR. The defendant applied to have the claimant's action struck out on the grounds that there was no realistic prospect of the court granting any of the declarations being sought. The defendant's application was supported by arguments that necessity did not afford a defence to a charge of murder or assisted suicide (unless the accused was being forced to choose between two deaths), that the claimant's right to respect for a private life was not inconsistent with the criminal law of murder and assisted suicide, that there were no grounds for alleging a breach of article 2 of the ECHR and that this was not a case in which a civil court should entertain and application for declaratory relief. Permission was granted to the claimant to pursue two of his declarations striking out the other.

 

R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin); [2012] LS Law Med 544

 

Judicial review — Voluntary euthanasia — Assisted suicide — Suicide Act 1961, section 2 — Defence of necessity — European Convention on Human Rights, article 8 — Whether further clarification of DPP policy on assisted suicide required.

 

In this case Mr Nicklinson sought a declaration that (provided certain procedural safeguards were complied with first) it would not be unlawful, on the grounds of necessity, for Mr Nicklinson's GP, or another doctor, to terminate or to assist the termination of Mr Nicklinson's life. In the alternative he sought a declaration that the legislation under which murder carries a mandatory sentence of life imprisonment was incompatible with the European Convention in a case of genuinely compassionate voluntary active euthanasia. The request for declarations was refused.

 

 

Best interests

 

Re A (A Child) [2016] EWCA Civ 759; [2016] Med LR 427

 

Children – Best interests – Right to life – Life-sustaining treatment – Withdrawal of treatment – Balance sheet exercise – Pain – Wider best interests – Over-emphasis of one factor in best interest decision.

 

This case sounds a second cautionary note from the Court of Appeal against the mechanistic use of balance sheet exercises and the failure to apply the appropriate weight to more important factors when assessing best interests. In this case the Court of Appeal, which again included McFarlane LJ, approved his caveat in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882. The difficulty encountered in this case was not, however, that all factors had assumed an equal value akin to a flat map, but that the issue of whether A was capable of experiencing pain or discomfort had assumed a disproportionate focus in the proceedings. The analogy here may be more akin to a map with misleading contours rather than none at all. A balance sheet exercise encourages all relevant options, risks and benefits, for and against a decision to be set out in detail, and in contentious proceedings those areas within the balance sheet that prove to be controversial or in dispute may receive undue emphasis. Indeed, the Court of Appeal noted that almost all of the oral evidence and a substantial part of the judgment dealt with the issue of pain, which, it considered, did not in reality go to the heart of the decision. Practitioners may wish to take note that it is the weight or importance of any particular factor rather than its controversy that should be paramount in any best interests assessment.

 

James v Aintree University Hospitals NHS Foundation Trust [2013] UKSC 67; [2014] Med LR 1

 

Mental Capacity Act 2005 – Adult – Best interests – Withholding of life sustaining medical treatment – Futility of medical treatment.

 

The importance of evaluating best interests in welfare in the widest sense, not just medical but social and psychological, was strongly emphasised by Lady Hale in this case, and this was subsequently a universally accepted approach to best interests assessments. This case was always destined to be notable, because it was the first case emanating from the Court of Protection under the Mental Capacity Act 2005 (“MCA”) to be heard by the Supreme Court. It is in fact especially notable because it pronounces upon a central concept in medical ethics and law, namely futility of medical treatment. It is therefore a significant judgment for all practitioners who deal with applications under the MCA for declarations that it would be in a patient's best interests to withhold potentially life-sustaining medical treatment.

 

St George's Healthcare NHS Trust v P (By His Litigation Friend, The Official Solicitor) [2015] EWCOP 42; [2015] Med LR 463

 

Mental capacity – Best interests – Withdrawal of life-sustaining treatment – Minimally conscious state – Assessment of disorder of consciousness – SMART assessment – Mental Capacity Act 2005.

 

In this application, a hospital trust asked for permission to stop giving treatment for kidney failure to one of its patients, “P”. The patient was in a prolonged unconscious state, following a heart attack. The need for the treatment for kidney failure pre-dated the heart attack. Before the heart attack, it was P's own choice whether to have the treatment for kidney failure (renal replacement therapy, “RRT”). But after the heart attack, now that he had a prolonged disorder of consciousness, he lacked the capacity to make that decision for himself. The hospital had provided RRT in his best interests under the Mental Capacity Act 2005 (“MCA”), but wished to discontinue it. The court decided that RRT should continue. The two key steps in the court's reasoning were (1) diagnosis; and (2) the best interests assessment. The judge recorded that an application to withdraw life-sustaining treatment, without the appropriate assessment of the patient's level of consciousness having been undertaken, risked “cataclysmic injustice”. The court emphasised that a structured assessment should be carried out before an application is made.

 

The case surrounding Charlie Gard and the wish to retain medical treatment has highlighted the many issues relating to this subject. The judgments from the UK Supreme Court and the European Court of Human Rights are available on the Medical Law Reports Plus series and can be found at:

 

The cases which follow have been cited in the Gard judgments to date and have been covered in the Medical Law Reports:

 

A (Children) (Conjoined Twins: Surgical Separation), Re [2000] Lloyd’s Rep Med 425

 

Conjoined twins — Proposed separation — Life prolonging treatment causing death of another — Welfare principle — Conflict of interests — Relevance of parents" views — Homicide — Defence of necessity.

 

The court was required to decide whether to authorise an operation which would lead to the certain death of one conjoined twin, but without which both were likely to die. The doctors who wished to perform the operation were opposed by the parents who wished nature to take its course and adhered to a strict view of the sanctity of life.

 

At first instance the court had authorised the operation on the grounds that so far as the weaker twin was concerned the operation would amount to an omission rather than a positive act by way of the interruption of the blood supply to her from the stronger twin and that the operation was in the best interests of the weaker as well as the stronger twin. In the Court of Appeal all the judges concluded that the operation was lawful but their reasons differed. A number of the reasons adopted by the court were radical and are unlikely to represent the final word in this difficult area.

 

In such a case, it was probably impossible to arrive at a decision which answered every issue to the satisfaction of all. In desperate and highly unusual circumstances the court was forced to search for novel solutions. It may have found them, but in doing so may have raised as many new questions as it has answered.

 

Glass v the United Kingdom (Application no 61827/00) [2003] ECHR 719; [2004] Lloyd’s Rep Med 76

 

Admissibility decision relating to complaints under Articles 2, 6, 8, 13 and 14 in connection with medical treatment of disabled child where fundamental disagreement existed between the doctors and the child's mother relating to aspects of the provision and refusal of treatment — Article 2 generally inapplicable to errors in individual clinical decisions — Article 8 arguable.

 

Only observations of a very cautious nature can be drawn from an admissibility decision. The relevant threshold question determined by the European Court of Human Rights in this case was solely whether or not the complaint was "manifestly ill founded" within the meaning of article 35 of the Convention. Nevertheless, this decision has some points worth noting.

 

HL v the United Kingdom (Application no 45508/99) [2004] ECHR 720; (2005) 40 EHRR 32; [2005] Lloyd’s Rep Med 169

 

European Convention on Human Rights article 5 — Detention of incapacitated patient — Legality of informal admission to hospital — Whether patient detained — Whether patient of unsound mind — Whether detention in accordance with a procedure prescribed by law — Whether sufficient protection against arbitrary detention — Whether judicial review and habeas corpus proceedings sufficient protection under ECHR article 5 § 4 — Mental Health Act 1983, section 131.

 

HL v the United Kingdom demonstrates the problems faced when the "wrongs-based" common law attempts to match up to the procedural safeguards required by "rights-based" Convention law. Whilst substantively the common law of necessity might well be Convention-compliant in providing a reasonable basis for depriving incapacitated patients of their liberty, procedurally it completely failed to make the Convention grade.

 

 

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