The latest on withdrawal of treatment: new interim guidance published

New interim guidance was published on 11 December 2017 on withdrawal of clinically assisted nutrition and hydration (CANH). Prepared jointly by the General Medical Council (GMC), Royal College of Physicians (RCP) and the British Medical Association (BMA), it follows removal of the Court of Protection’s Practice Direction 9E relating to serious medical treatment cases.  Full guidance is expected in May 2018.
Practice Direction 9E previously indicated that withdrawal of CANH from patients in a persistent vegetative state (PVS) or a minimally conscious state (MCS) ‘should’ be brought before the Court.  That Practice Direction ceased to apply on 1 December 2017.

The new guidance reflects the current case law. It states that there is no obligation to seek court approval before withdrawing CANH from a patient in a PVS or MCS - if there is agreement that withdrawal of treatment is in the patient’s best interests. 

A question of agreement

The 1993 case of Tony Bland, who was in a PVS, established that CANH was a form of medical treatment that could be withdrawn in certain circumstances but only with court approval.

More recently, the High Court softened the requirement for court approval (NHS Trust v Mr Y and Mrs Y [2017]). This was a case where (as in Bland) both the treating clinicians and the family were in agreement that CANH should be withdrawn.  The court held the Trust did not need to bring the application before the court because there was no dispute as to best interests (and because all requirements of the Mental Capacity Act (MCA) had been followed). The court duly granted that declaration.

This ‘softened’ approach was already advocated in cases with similar facts – including the  Court of Appeal decision in Director of Legal Aid Casework and Others v Briggs [2017] and the Court of Protection decision in M v A Hospital [2017]: if medical treatment proposed is not in dispute, then regardless of whether it involved the withdrawal of treatment from a person who is in a MCS or in a PVS,  the decision of whether it is appropriate to withdraw CANH comes down to a best interests decision. If there is no dispute – withdrawal does not require a declaration from the Court. 

NHS Trust v Mr Y and Mrs Y may be heard by the Supreme Court on appeal. However, for now, the interim guidance provides a framework for the decision making process.

What does the guidance say?

The new guidance makes it clear that the first question to establish is whether or not there is a need to make a “best interest decision”. It confirms that such a decision cannot be taken in the following circumstances:

If the patient has an applicable advanced decision to refuse treatment covering CANH. In such cases the patient’s decision to decline treatment should be respected.
If there is an appropriately appointed and registered health and welfare attorney under a lasting power of attorney with specific power to consent to or refuse life sustaining treatment, the decision rests with them. The treating clinicians should respect that decision (unless overruled by a court).
If there is a disagreement and the decision is finely balanced, an application should still be made to the court.
In all other cases the guidance states that the patient’s clinical team can lawfully withdraw or not provide CANH where they determine, after proper consultation, that this is in the patient’s best interests.  The guidance provides 15 recommendations that doctors should follow when seeking to make such a decision. 

The salient recommendations are:

• Ensure that all existing guidance from the MCA Code of Practice as well as that from BMA, RCP and GMC about best interests are followed appropriately and that patients are assessed by those with appropriate training in these conditions.
• Ensure that formal meetings are held with all relevant parties and that these are fully documented.
• Ensure that appropriate attempts are made to identify all relevant people to be consulted about best interest decisions.  This may not just be ‘next of kin’ - a term which has no legal meaning in the context of best interest decision making. Relevant people includes other family members and possibly friends and colleagues who know the patient well, as well as other care staff.
• If the patient has no known family, or it is felt the family members are not able to properly represent the patients’ views, consult an independent mental capacity advocate (IMCA).
• It is important that the level of awareness and any trajectory for improvement is assessed in accordance with RCP Guidelines (Prolonged disorders of consciousness:  national clinical guidelines 2013) and is carefully documented in the notes.
• Find out as much as possible about the patient’s values, wishes, feelings and beliefs and the type of person they were before becoming ill. Ensure that all of this relevant information forms part of the assessment.  Try to establish what this person would wish to be done if they had capacity to tell those caring for them.
  Seek a second clinical opinion from a consultant with experience in prolonged disorders of consciousness who has not been involved in the patient’s care.  Ideally this should be from someone external to the Trust involved in the care.

Ensure detailed clinical notes are kept. This should include details of:

• the nature, cause and severity of the injury
• what assessments have been undertaken
• treatment provided
• results of tests and interpretation of these to assess level of awareness
• all of the patients abilities – including their ability to feel pain/pleasure/enjoyment
• an assessment of best, worst and most likely prognosis (including life expectancy if CAHN is continued)
• all evidence and discussions gathered – including the best interests meeting, as well as discussions regarding any known preferences of the patient and also details of the second opinion obtained.

Comment

This interim guidance provides welcome clarity to health professionals involved in making the very difficult and clinically sensitive decisions regarding withdrawal of clinically assisted nutrition and hydration in patients suffering from prolonged disorders of consciousness. The interim guidance will hopefully help to significantly reduce the stress on grieving families and busy health professionals by avoiding unnecessary court involvement when making a best interest decision on withdrawal of such treatment from those types of patient.

We recommend that the guidance is read in full.