Decisions involving adults who do not have the capacity to make or communicate decisions and do not have a valid advance directive and decisions involving children and young peopleAdults
People have varying levels of capacity and should be encouraged to participate in discussion and decision making about all aspects of their lives to the greatest extent possible. The graver the consequences of the decision, the commensurately greater the level of competence required to take that decision. [Section 13.2] In England, Wales and Northern Ireland no other individual has the power to give or withhold consent for the treatment of an adult who lacks decision-making capacity but treatment may be provided, without consent, if it is considered by the clinician in charge of the patient's care to be necessary and in the best interests of the patient. [Section 13.3] In Scotland a tutor dative may be able to make treatment decisions on behalf of adults who lack decision-making capacity. [Section 13.4] The same principles apply when decisions are taken in relation to a woman who is pregnant with a viable foetus and is unable to make or communicate decisions. The foetus has no legal status and the decision must be that which represents the best interests of the pregnant woman. The extent to which the woman's likely wishes about the outcome of the pregnancy may be taken into account in determining her best interests is unclear. In order that these matters may be fully explored, legal advice should be sought. [Section 13.7]
Babies, children and young people
The same moral duties are owed to babies, children and young people as to adults. [Section 14.1] Those with parental responsibility for a baby or young child are legally and morally entitled to give or withhold consent to treatment. Their decisions will usually be determinative unless they conflict seriously with the interpretation of those providing care about the child's best interests. [Section 15.1] Treatment in a young person's best interests may proceed where there is consent from somebody authorised to give it; the competent young person him or herself, somebody with parental responsibility or a Court. However, a young person's refusal may not, in law, necessarily take precedence over the consent of either parents or a Court. [Section 16.2]
Even where they are not determinative, the views and wishes of competent young people are an essential component of the assessment of their best interests and should, therefore, be given serious consideration at all stages of decision making. [Section 16.3] The process of decision making
Where relevant locally or nationally agreed guidelines exist for the diagnosis and management of the condition, these should be consulted as part of the clinical assessment. Additional advice should be sought where necessary. [Section 17.2] Where there is reasonable doubt about its potential for benefit, treatment should be provided for a trial period with a subsequent prearranged review. If, following the review, it is decided that the treatment has failed or ceased to be of benefit to the patient, consideration should be given to its withdrawal. [Section 17.7] Before a decision is made to withhold or withdraw treatment, adequate time, resources and facilities should be made available to permit a thorough and appropriate assessment of the patient's condition including, where appropriate, the patient's potential for self-awareness, awareness of others and the ability intentionally to interact with them. This should involve a multidisciplinary team with expertise in undertaking this type of assessment. [Section 17.8]
The benefits, risks and burdens of the treatment in the particular case should be assessed. [Section 17.10] Although ultimately the responsibility for treatment decisions rests with the clinician in charge of the patient's care, it is important, where non-emergency decisions are made, that account is taken of the views of other health professionals involved in the patient's care and people close to the patient, in order to ensure that the decision is as well informed as possible. [Section 18.2] Even where their views have no legal status, those close to the patient can provide important information to help ascertain whether the patient would have considered life-prolonging treatment to be beneficial. [Section 18.3] Good communication, both within the health care team and between the health team and the patient and/or those close to the patient, is an essential part of decision making. Wherever possible, consensus should be sought amongst all those consulted about whether the provision of life-prolonging treatment would benefit the patient. [Section 18.4] Decisions to withhold or withdraw conventional treatment, on the basis that it is not providing a benefit to the patient, should be made by the clinician in overall charge of the patient's care following discussion with the rest of the health care team and, where appropriate, those close to the patient. Where the clinician's view is seriously challenged and agreement cannot be reached by other means, review by a Court would be advisable. [Section 19.3] Decisions about withholding or withdrawing artificial nutrition and hydration
In England, Wales and Northern Ireland, proposals to withdraw artificial nutrition and hydration from a patient who is in persistent vegetative state, or in a state of very low awareness closely resembling pvs, currently require legal review. [Section 21.1] In Scotland the withdrawal of artificial nutrition and hydration from a patient in pvs does not require a Court declaration. [Section 21.2] The Courts have not specified that declarations should be sought before withholding or withdrawing artificial nutrition and hydration from patients who are not in persistent vegetative state. Although a body of medical opinion has developed that such action would be appropriate in some cases (such as some patients who have suffered a serious stroke or have severe dementia), UK Courts have not yet considered such a case.
This arguably leaves doctors in an area of legal uncertainty and therefore open to challenge. [Section 21.4]
The BMA believes that the following additional safeguards should be applied to decisions to withhold or withdraw artificial nutrition and hydration from patients whose death is not imminent and whose wishes are not known. [Section 22.1]
(a) All proposals to withhold or withdraw artificial nutrition and hydration whether in hospital or in the community should be subject to formal clinical review by a senior clinician who has experience of the condition from which the patient is suffering and who is not part of the treating team.
(b) In England, Wales and Northern Ireland, where it is proposed to withdraw artificial nutrition and hydration from a patient in persistent vegetative state or a state closely resembling pvs, legal advice should be sought and a Court declaration is likely to be required until such time as the Courts have stated otherwise.
(c) All cases in which artificial nutrition and hydration has been withdrawn should be available for clinical review to ensure that appropriate procedures and guidelines were followed. Anonymised information should also be available to the Secretary of State on request and, where applicable, the Commission for Health Improvement. Go to top
Once a decision has been reached to withhold or withdraw life-prolonging treatmentThe basis for the decision to withhold or withdraw life-prolonging treatment should be carefully documented in the patient's medical notes. [Section 25.1] Decisions to withhold or withdraw life-prolonging treatment should be reviewed before and after implementation to take account of any change in circumstances. [Section 25.2] Decisions to withdraw or withhold life-prolonging treatment should be subject to review and audit. [Section 25.3] Although not responsible for making the decision to withhold or withdraw treatment, those close to the patient are often left with feelings of guilt and anxiety in addition to their bereavement. It is important that the family is supported both before and after the decision has been made to withdraw or withhold life-prolonging treatment. [Section 26.1] The emotional and psychological burden on staff involved with withdrawing and withholding life-prolonging treatment should be recognised and adequate support mechanisms need to be available and easily accessible before, during and after decisions have been made. [Section 26.2] Go to top
Wednesday, June 23, 1999 Published at 09:34 GMT 10:34 UK
Background Briefings
