Clinical Discretion in End of Life Decision Making

With reference to English case law, discuss whether the law grants the medical profession an appropriate level of clinical discretion in end of life decision making.

Doctors and other healthcare professionals (HCPs) are being held increasingly liable for not achieving what is expected of them, both through private litigation and in the public eye. Medical professionals are granted privileged access to the most private and personal parts of their patients’ lives. Access and influence come with great responsibility – to not make mistakes, listen to patients’ needs and ensure they benefit from treatment. Medical law has developed to protect patients from clinical harm and maintain HCPs’ professional integrity. Over the last three decades, the law on end of life (EoL) decision making has progressed significantly through new legislation. Statute has been guided by public interest and has been clarified and developed by case law. The law still proves immensely challenging and controversial. It is clear that, as it stands, it does not grant absolute freedoms to patients in their EoL decision making. It also restricts the options available to HCPs in terms of the assistance they can offer dying patients. In this essay, significant cases will be examined in the context of statute to determine if HCPs are granted a reasonable and appropriate level of clinical discretion in EoL decisions.

If the law were different, HCPs could have many more options to legally assist dying patients. Patients nearing death could be permitted the so-called “right to death” and doctors could act on their own clinical judgement to achieve patients’ wishes without risk of prosecution. They could, for example, be granted permission to administer or assist patients with lethal treatment. However, the present law in England and Wales is clear. HCPs are not granted any clinical discretion in these examples. Such acts, motivated by a desire to bring about the death of a patient, would constitute murder and carry a mandatory life sentence. There are some specific situations where the clinical judgement of HCPs is granted greater discretion by the law, such as in withdrawal and withholding of life sustaining treatment (LST). In its current form, the law liberates HCPs to act in these matters without fear of prosecution.

The legal implications of withdrawing artificial nutrition and hydration (ANH) were explored in depth in Airedale NHS Trust v Bland (1993). As a young persistent vegetative state (PVS) patient with no advanced direction, no means of communication and – critically – no competence, Bland’s medical team were keen to confirm that they would not be prosecuted should they remove his life-sustaining treatments. ANH was dismissed as futile and Bland’s family had expressed their wish for him to be allowed to die. These facts, along with the Bolam principle of best interests (Bolam v Friern Hospital Management Committee, 1957) were investigated by the courts who came to the conclusion, contradicting Official Solicitor Munby, that to withdraw treatment would not be unlawful. Four key safeguards, defining PVS and how decisions had to take into account the views of independent doctors and family members, were stipulated but ultimately the case confirmed that, in future similar cases, HCPs could follow their own clinical judgement.

The judges appreciated that the BMA had submitted guidance on the medical ethics of treatment withdrawal, demonstrating support that to act in such a way was considered to be within “normal professional standards” (Bland, 1993). The duty of doctors was discussed – it was agreed that where patients lacked mental capacity to express their own wishes, HCPs could give or withhold treatment according to their best interests and within the confines of “good medical practice”. Munby stated concerns that allowing HCPs to make decisions that were not based on the premise of preserving life would cause them to make judgements as to how valuable their patients’ lives were. However, the statements of judges and HCPs in Bland clarified that if HCPs’ decisions to withdraw LST had value judgements, these were not relating to the value of the patient in his state but to his quality of life. The judges’ consensus was that, for some time after Bland, HCPs should consult with the Family Division to ratify any EoL decisions made in regard to PVS patients. It was generally agreed – for the sake of practicality and legal resources – that such consultations would not be required indefinitely but only until a sufficient level of knowledge and experience was built up. Ultimately, it was judged that HCPs’ clinical experience outweighed the knowledge of the courts and they were given great freedom to act on their own clinical judgements without fearing legal implications. Furthermore, in later cases, subsequent weakening of the four safeguards indicated the huge influence medical opinion has on application of the law (Bland, 1993).

The more recent case of Re R (R (on the application of Burke) v General Medical Council, 2005) further endorsed HCPs’ clinical judgement in situations regarding treatment withdrawal. Burke, a competent patient with increasingly degenerative cerebellar ataxia wished to confirm the GMC guidance on ANH. Conscious that his condition would have little effect on his cognitive ability as he neared the end of his life, Burke was concerned that HCPs would opt to remove ANH prematurely leading to a prolonged and painful death. He argued such acts would contravene Articles 2, 3 and 8 of the European Convention of Human Rights (ECHR, 1950). Once more acting as Official Solicitor, Munby supported these claims but was criticised by the Court of Appeal for being too prescriptive in his declarations, especially when he suggested that HCPs had a legal requirement to follow patients’ treatment demands. Burke lost his case; it was clarified that patients could not request LST. As in Bland, the onus was once more placed on HCPs to use their own clinical judgements to determine when ANH should be withdrawn, taking into account the best interests and previous wishes expressed by the patient.

Since Bland, the inclusion of the Mental Capacity Act (2005) has somewhat flipped the best interests process, questioning whether it is in the patient’s best interests to continue with LST, as opposed to whether it is in his best interests to withdraw. This was seen in Aintree v James (2013), which added another layer of subtlety to previous precedents by placing greater emphasis on the patient having some semblance of quality of life (e.g. the ability to feel pleasure) instead of whether they would achieve a full recovery. While the case did not remove clinical judgement from the arena in deciding whether to withdraw LST, it could be argued that it decreased the margin of liberty for HCPs who may have previously made best interests decisions based on a judgement of whether the patient’s life was “worth living” from an external perspective. This, according to Lady Hale, was inappropriate – “it is not for others to say that a life which the patient would regard as worthwhile is not worth living” (Aintree, 2013).

Bland-style judgements on withdrawal and withholding of treatment do seem to be the EoL decision making area that HCPs are granted the greatest clinical discretion. The case of Ms B (Ms B v An NHS Hospital Trust, 2002) emphasises that HCPs’ clinical judgement and treatment decisions do not stand when they conflict with the wishes expressed by competent patients. Ms B became quadriplegic after a spinal stroke and was unable to breath without mechanical assistance. She was able to communicate with her team and was eventually deemed to have competence. Appreciating the lethal consequences, she requested that her ventilation be withdrawn multiple times. However, her right to refuse treatment (as supported by Articles 3 and 8 of ECHR and MCA 2005) was denied by those caring for her. They were uncomfortable carrying out her wishes due to the attachment they had formed to her and their lack of experience in such discussions.

Baroness Butler-Sloss quoted Lord Donaldson, agreeing with his sentiments that “the patient’s right to choose exists whether the reasons for making that choice are rational, irrational, unknown or even non-existent” (Ms B, 2002). The law was clear: Ms B’s HCPs had been acting unlawfully. However, despite the fact that Ms B could have had clear reason to litigate for the crime of battery, limited penalties were placed on the HCPs involved in her care. They were given the “highest praise” (Ms B, 2002) for their conduct. It was also recognised that despite absolutely falling within her rights, Ms B’s wishes could only be carried out at the discretion of a willing hospital and medical team. Despite the law being explicitly in favour of the patient’s rights and the potential for prosecution it appears the court still supported, to some extent, the HCPs’ clinical judgement in the case.

It could be argued that the situations which restrict HCPs’ freedom of clinical judgement outweigh those that provide them with clinical discretion. R v Ministry of Justice (2014) is useful for illustrating the many barriers that come in the way of patients and HCPs seeking to hasten the EoL. The case called on previous statutes (e.g. Suicide Act 1961) and the precedents set by other cases such as Pretty (R (Pretty) v Director of Public Prosecutions, 2001) and Purdy (R (Purdy) v Director of Public Prosecutions, 2010). Nicklinson, a competent patient with locked-in syndrome sought confirmation that a physician could assist his suicide by outlining a series of potential defences, including his own consent, necessity and the doctrine of double effect. Each potential defence was deemed to be not legally binding. Fundamentally, the case confirmed that, despite one’s competent wishes, the ECHR’s “right to life” did not “confer the diametrically opposite right” – the so-called “right to die” (ECHR, 1950). Any HCP acting to promote Nicklinson’s wishes, by either providing him with lethal treatment or assisting his suicide would be at risk of prosecution. In this way, even if HCPs were to sympathise with Nicklinson, and made a clinical judgement to assist him in EoL treatment, they would not be treated with discretion in the eyes of the law.

The great irony of a case like Nicklinson and previous cases such as Cox and Adams, is that, according to Lord Mustill in Bland, “prosecutions of doctors who are suspected of having killed their patients are extremely rare” (Bland, 1993). After the case of Harold Shipman, the authorities are on alert for HCPs who appear to be actively killing their patients, but the number of cases brought to court remains small (Wheeler, 2016). The doctrine of double effect is still a valid defence if it appears that terminally ill patients have had their lives shortened in some way. More common than murder charges are charges of involuntary manslaughter, for example through gross negligence (Wheeler, 2016). The formulaic methods used to prosecute HCPs commonly result in acquittal. Therefore, even though there have been multiple high-profile cases which have an outcome suggesting that HCPs have limited freedoms to exercise their clinical judgements in EoL decision making, in reality it is likely that the authorities turn a blind eye. Whether this is fair for the HCPs who do face prosecution for getting involved in EoL decisions is a matter for debate.

In conclusion, there is no clear way of defining to what extent clinicians are granted discretion by the courts. Only in certain situations, specifically withdrawal and withholding of LST, are HCPs free to exercise their clinical judgement without legal risks. Otherwise, the law is clear: any HCP who assists their patient to commit suicide or performs euthanasia – no matter how positive their intentions – is committing a criminal act and can risk the consequences. However, as shown through the statistics for manslaughter and acquittal, very few HCPs are prosecuted – it is highly unlikely that cases will be brought against them. This suggests a discrepancy between statute and reality, and that HCPs are being granted greater discretion than legislation dictates. Yet the deterrence posed by statute is undeniable. For as long as the risks of prosecution outweigh the support of the courts, many HCPs will take the view that their professional integrity is not worth the risk of acting out of compassion to shorten their patients’ lives.

References

Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67

Airedale NHS Trust v Bland [1993] AC 789

Bolam v Friern Hospital Management Committee [1957]1 WLR 582

Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) (ECHR) Arts. 2, 3, 8, 1950

Mental Capacity Act, 2005

Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam)

R (on the application of Burke) v General Medical Council [2005] EWHC 1879

R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice [2014] UKSC 38

R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 [2002] 1 AC 800

R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345

Wheeler, R. (2016) Manslaughter by doctors. Available from: https://www.uhs.nhs.uk/HealthProfessionals/Clinical-law-updates/Manslaughter-by-doctors.aspx [Accessed 20/1/20]