When non-treatment is last resort

Doctors hacve won the backing of the courts to not forcibly treat a patient in need of kidney dialysis, reports Roger Pearson.

A judgment by High Court Family Division President Sir Stephen Brown has added a further dimension to the so-called “right to die” cases in which courts are asked by doctors to consent to the withholding of, or the withdrawal of, life-sustaining treatment.

A series of cases, starting with that of Hillsborough disaster victim Tony Bland, who was on life support and regarded as being in a permanent vegetative state as a result of his injuries, has established that, given certain circumstances, doctors and health authorities can seek authority to withdraw treatment which keeps a patient alive.

In the case of Bland, the ground for granting leave to cease treatment was one of futility – namely, that life-sustaining treatment would serve only to keep him in a permanent vegetative state and would have no therapeutic benefit leading to improvement of his quality of life.

The other basis for withdrawing life-saving treatment that has been established is that continued treatment would lead to an intolerable result – namely, that it would serve only to extend the life of the patient, causing intolerable pain, but could not be regarded as a cure. Such treatment would also, almost certainly, cause further and unnecessary distress, pain and suffering. This was the ground on which consent to stop treatment was recently given in the case of an 18-month-old child suffering from a terminal illness.

Now a third basis has been added under which doctors can be given the right not to go-ahead with life-sustaining treatment – that of impracticability. The case which led to this ruling involved a 49-year-old beggar – a chronic schizophrenic – who needed regular kidney dialysis to keep him alive. However, he refused dialysis and it was impracticable to give it against his wishes. It would have entailed sedating him for hours at a time, which would pose a serious health risk.

The health trust responsible sought and was given leave by Sir Stephen, notwithstanding the patient’s inability to give or refuse consent to treatment, not to continue with treatment.

He said that it would be lawful for the health trust not to impose dialysis on the patient and that such a move was “in the best interests” of the man. He stressed in his judgment, however, that the move was not to be seen as one in which the doctors were giving up, but merely a last resort. Doctors would still continue to attempt to persuade the man to undergo dialysis.

The health trust in the case was represented by Capsticks’ Frances Clift, a specialist in this field, who was formerly with the Official Solicitor’s office. She agrees that the latest judgment has added a new element to such cases.

“The president has essentially defined the scope of the doctors duty towards an incompetent patient. He has made it clear that the doctor is only expected to deliver treatment which, in his or her clinical judgment, is reasonably practicable,” explained Clift.

“In the past it has been held to be lawful to withhold or withdraw life-saving treatment which is futile or which would be intolerable and produce no real benefit to the patient. In this case the treatment was impracticable.

“The patient would have had to be sedated, probably to the extent of being given a general anaesthetic, itself an extremely risky procedure. The prospect of it having to be done three times a week made it impracticable, on the medical evidence.”