BLB were recently asked for advice by a Muslim family whose elderly relative had suffered a severe stroke and had been hospitalised for 4 months. As a result of the stroke the relative was unable to speak or swallow and had difficulties moving the right side of her body. Following a chest infection compromising her lung function a decision was taken by the clinicians to stop feeding the lady (via her gastric tube), withdraw continued drug therapy and cease routine observations. Having cared for their relative whilst in hospital and due to their religious beliefs the family wanted the hospital to continue treatment so as to prolong her life rather than have her pass away. Fortunately after meeting with the clinicians concerned the family were able to persuade the hospital to review their decision and allow their relative to return home with the benefit of care in the community.
This case is similar in a number of respects to the case of R (on the application of Tracey) v Cambridge University Hospitals NHS Foundation Trust which was heard by the Court of Appeal on the 17th June 2014. This case concerned the issue of consulting patients when taking decisions involving life sustaining treatment (in this case whether to attempt cardiopulmonary resuscitation or CPR) and Article 8 of the European Convention on Human Rights which requires respect for private and family life. The leading judgment said :-
“A decision as to how to pass the closing days and moments of one’s life and how one manages one’s death touches in the most immediate and obvious way a patient’s personal autonomy, integrity, dignity and quality of life.”
The Court rejected the argument that there is no need to involve the patient if CPR is considered to be futile, it is important for patients to know such an important clinical decision has been made and, further, the patient may want to have a second opinion.
This decision imposes an obligation on clinicians to seek to discuss “Do not attempt CPR” decisions with patients unless to do so would cause the patient physical or psychological harm. Doctors cannot avoid raising the matter with patients just because the doctor thinks the patient would find it distressing.
The Judgment does not directly deal with the position of patients who lack capacity. The Mental Capacity Act 2005 requires decisions for those who lack capacity to make the decision for themselves to be made in the individual’s best interests. When deciding best interests, a clinician is required to take account “if practicable and appropriate to consult them” the views of anyone, amongst others, engaged in caring for the individual or interested in their welfare. In other words, if clinicians cannot talk to the patient then they should talk to the family. Confidentiality may, occasionally, be an issue but it should not become an artificial barrier to discussion or, even worse, an excuse.
For further advice on this subject contact David Gazzard on 01793 615011.
Image by Deb under a Creative Commons Licence