The withdrawal of clinically assisted nutrition and hydration (CANH) or medical treatment is often an unsurprisingly highly emotive and contested issue. Any situation which involves providing, withdrawing or withholding CANH or medical treatment can have potentially very serious consequences.
The balance to be struck between weighing up the benefits, burdens and risks where a proposed course of action may have serious consequences for a patient is a very difficult one to strike.
The question is how can a proposed withdrawal of CANH or medical treatment be challenged by a patient’s family and when is it appropriate to do so?
When can life-sustaining treatment be withdrawn without court approval?
The general rule is that life-sustaining treatment can be withdrawn without court approval if:
- The principles of the Mental Capacity Act 2005 are followed (for further information view our article on the “5 Key Principles of the Mental Capacity Act 2005“); and
- Relevant guidance is observed; and
- The question of what is in the patient’s best interests is agreed.
‘Relevant guidance’ is principally the guidance issued by the British Medical Association and Royal College of Physicians. A copy of the full guidance, along with a quick reference guidance can be found by visiting the British Medical Association’s website.
When is Court approval required to withdraw CANH or medical treatment?
If at the end of the assessment and best interests decision-making process:
- The way forward is finely balanced, or
- There is a difference of medical opinion, or
- The proposed medical treatment is being regarded as being experimental, or
- There is a disagreement with regard to whether a proposed course of action is in the best interests of the patient between family members and clinicians, then court approval may be required.
What steps should clinicians take when the withdrawal of life-sustaining treatment is in question?
- The patient’s capacity to make a decision about the medical treatment or CANH in question must be established.The fundamental principle is that a person should be assumed to have capacity, unless it is established otherwise.
Practicable steps must be taken to encourage and establish if it is possible for a patient to make their own decision.
If, after taking all practicable steps to support a person to make a decision there is a concern that the patient may lack the capacity to make the specific decision, their capacity must be assessed in accordance with the legal, not medical test, contained within Section 2 of the Mental Capacity Act 2005.
- Once a lack of capacity has been established, any decisions should be made in the patient’s best interests.The concept of ‘best interests’ is not defined in the Mental Capacity Act 2005, however Section 4 sets out a checklist of factors which must be considered when determining what is in P’s best interests.
- Clinicians should investigate how serious an injury or illness is.
- Family members should be provided with unbiased, honest and realistic information about the patient’s condition and expected level of recovery.Understanding what the patient’s prognosis is likely to be if a recovery is possible will be crucial to consider as part of the decision-making process.
- If, having completed investigations, clinicians take the view that it would not be in the patient’s best interests to continue treatment, a second opinion should be obtained from a senior clinician.A second opinion may not always be routinely offered. However if a patient’s family disagree with the clinical view provided, it is always best to request a second opinion be sought.
- If the second opinion agrees with the first, the evidence suggests it is not in the patient’s best interests to continue treatment, and the family agree, treatment should be stopped. The focus should then become end of life care.
- If the investigations indicate the way forward is finely balanced, or there is a difference of medical opinion, an application to the Court should be made.
When and how should decisions to withdraw life-sustaining medical treatment be challenged?
If family members disagree with the clinical opinion(s) provided, the starting point is to raise concerns with the treating clinicians directly.
Families should make it very clear if they disagree with the clinical opinion(s) provided and the reasons why.
The reasons need to be factual and linked with what the family believe to be the patient’s past and present wishes, feelings and values.
If concerns cannot be resolved with the immediate clinical team, families can request a further medical opinion and a case conference to review the evidence available and discuss the decision.
Case conferences are likely to be more productive if the patient’s family is represented by an advocate because an advocate can ensure family views are presented in a factual, structured and reasoned manner.
If agreement cannot be reached at the case conference, the treatment provider should make an application to the Court of Protection.
If the treatment provider refuses to make the application, it may be possible for a family member to bring an application on the patient’s behalf.
Read more about Advance Decisions and refusing Medical Treatment
What is the Court’s role in a medical treatment case?
Once an application to the Court of Protection has been made, the Court’s role is to consider whether or not a proposed course of action by the treating clinical team is lawful. The Court’s decision and reasoning will be confirmed in a declaration.
It is important to note that the Court cannot compel a treating clinician to provide a particular form of treatment to the patient that is not being offered. The Court can only consider whether it would be in the patient’s best interests for the proposed course of action or treatment to proceed. The fact that a patient lacks capacity does not mean that they would be necessarily entitled to treatment they wouldn’t ordinarily receive if they had capacity.
What if I need advice about the withdrawal of treatment or feeding?
An explanation of the Mental Capacity Act
The Mental Capacity Act can be downloaded in pdf format:
This article has been written by James Pantling-Skeet, Chartered Legal Executive, Community Care Team, Lester Aldridge
James specialises in advice and assistance for individuals, their representatives and professionals in the field of community care law which includes the provision of education, health and social care services. His expertise includes a wide range of education, health and social care and mental capacity law matters.
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