Sample problem question

Following a subarachnoid stroke, which occurred two and a half years ago, Harry (aged 56) has been in a minimally conscious state. He is totally reliant on the use of a naso-gastric tube for his nutritional needs. He breathes unaided. His doctors have decided that in the event that Harry suffers a cardio-respiratory arrest or a severe infection they would wish to withhold resuscitation or antibiotics on the basis of clinical futility. Harry’s wife has insisted in the strongest terms that because of her husband’s religious views and his belief in the sanctity of life. According to his wife, Harry had told her on several occasions that if he was ever in a coma he would want every effort to be made to preserve his life because where there is life there is always hope.

Advise the doctors.

Sample response.

This scenario concerns end-of-life decision-making. Harry is in a minimally conscious state. This means that he is in a state of prolonged disorder of consciousness. He is fed using a naso-gastric tube. He can breathe unaided. His doctors would like to withhold resuscitation and antibiotics if he has a cardiac arrest or if he gets an infection.

Competent adults can refuse even life-saving treatment (Re B). Autonomous choice is underpinned by autonomy and self-determined choice as protected by Article 8 of the ECHR (Pretty v UK). Adults who lack capacity must be treated in their best interests. This is underpinned by the ethical concept of beneficence. Edmund Pellegrino is a virtue philosopher and leading proponent of the need for doctors to adopt a beneficent attitude as part of their professionalism. According to section 1(2) of the Mental Capacity Act 2005 a person must be assumed to have capacity unless it is proved that he lacks capacity. Capacity is assessed in accordance with the provisions of the Mental Capacity Act 2005 (section 3(1)). These provisions reflect those of the previous common law (Re C) but include a need to be able to communicate the decision made. On the facts, because Harry is in a minimally conscious state he can be assumed to lack capacity to make a decision regarding his treatment options and a decision will need to be taken in his best interests.

Section 4 of the MCA 2005 gives factors to be considered when determining Harry’s best interests. Section 4(6) requires that the person’s wishes, feelings, beliefs and values are considered as part of the decision-making process. If practical and appropriate, others should be consulted and their views taken into account section 4(7)). This includes anyone named as people to be consulted, carers and others interested in their welfare. For this reason the opinion of Harry’s wife must be taken into account, although her wishes will not be determinative.

The doctors would need to apply to the Court of Protection for a declaration that withdrawal of withholding of treatment is in Harry’s best interests (Airedale Trust v Bland). On the authority of W v M, because Harry is in a minimally conscious state, it seems likely that a balance sheet approach would be used by the court to reach a decision.

Feedback

This student has made several common errors. First, there is a tendency to repeat parts of the question. This is a typical ploy that tends to be used by students in examination situations when they are thinking about what to write. Unfortunately no marks are given for repeating the question!

Second the student has clearly revised very hard and is desperate to write down everything that is known irrespective of its relevance to the question. This can be a real issue in examinations when time is of the essence – time spent discussing irrelevant issues takes away opportunities to discuss salient points. A point in principle here concerns the discussion about capacity. Although what is written is legally correct the fact that Harry lacks decision-making capacity must be taken as a given.

The student has attempted to interweave ethical points throughout the answer. This can be a useful tactic, particularly in problem questions, where law (and ethics) need to be applied to the question.

More discussion could have been given about requests for treatment in the context of case law such as Re J (a minor) and Burke v GMC. Note that doctors do not have a duty to provide treatment that is futile. At this point the controversial concept of futility could be discussed usefully with links made to the literature. A further point that could have been discussed is whether Harry’s wishes amount to an advance decision (or at least a statement of wishes). Reference and consideration of sections 24 to 26 of the Mental Capacity Act 2005 would have been relevant with particular note that advance decisions will be applicable only to refusals of treatment. Some mention of Article 8 and 9 of the ECHR would have been relevant.

Although the key case of W v M has been mentioned the Supreme Court decision of Re Y and Aintree v James and more recent case law including Re Y would have been useful. Some brief inclusion of quality of life arguments compared with sanctity of life arguments could have been given and applied to the facts.

The answer would have been strengthened further by a short conclusion summarising the key advice to be given to the doctors.