Read this article to:

• Discover more details about a recent ruling on seeking Court approval for withdrawing treatment from patients in a permanent vegetative state
• Find out how the Mental Capacity Act (2005) played a part in this judgment
• Learn how to communicate effectively with a patients and their families when making end of life decisions

The Supreme Court recently ruled that healthcare professionals across the UK will no longer need to seek legal permission to withdraw treatment from patients in a permanent vegetative state.

When families and doctors are in agreement and believe it is in the patient’s best interests, medical staff will be able to remove feeding tubes without applying to the Court of Protection.

The judgment

The judgment ruled that Court approval is no longer required before withdrawing clinically assisted nutrition and hydration (CANH) in a patient with a prolonged disorder of consciousness (such as persistent vegetative state or minimally conscious state) even though the withdrawal will result in the death of the patient.

The Supreme Court referred to the principles of the Mental Capacity Act 2005 (MCA) that provides for decisions to be taken on behalf of those who lack capacity based on their best interests.

When a patient lacks the capacity to consent to, or refuse, medical treatment, the doctor concerned will have to decide what is in the patient’s best interests. The Mental Capacity Act Code of Practice outlines the best interests test which includes consulting with those close to the patient.

In its judgment, the Supreme Court placed emphasis on the importance of referring to relevant professional guidance when making decisions regarding life sustaining treatment, singling out the guidance provided by the GMC.

The Court referred to the guidance that a second opinion should be sought from an independent clinician who should reach their own conclusion on whether CANH should be withheld.

The GMC’s Treatment and Care Towards the End of Life says: “You must seek advice or a second opinion from a colleague with relevant experience (who may be from another specialty, such as palliative care, or another discipline, such as nursing) if it is decided that clinically assisted nutrition or hydration should be withdrawn or not started.”¹

During this judgment, the wider question of when it is necessary to go to court before withdrawing or withholding any form of life-sustaining treatment from a person lacking the capacity to consent to or refuse such treatment was answered.

Communicating with patients and their families during end of life treatment

When treating a patient who has reached the end of life, clear communication and collective decision making are important.

The GMC’s Treatment and Care Towards the End of Life says: “It is important that you and other members of the healthcare team acknowledge the role and responsibilities of people close to the patient. You should make sure, as far as possible, that their needs for support are met and their feelings respected, although the focus of care must remain on the patient.”²

It can be hard for healthcare professionals to have the difficult conversations with patients and their families that are necessary at the end of life. In the space of what is unsaid, confusion, uncertainty, and, ultimately, complaints about care can reside. But a patient’s death, if handled well, can be a rewarding experience for doctors and families are often very appreciative.

Dr Nicky King, a Medical Protection medicolegal consultant advisory lead and former consultant in palliative medicine, says: “The major issue is always communication.

“When a complaint might come in related to end of life care, you can often look back and see that this particular family has had a bad journey; from the outset, they felt that no-one communicated with them properly.”

A doctor may believe they have communicated essential information, but patients and their families may not have not heard it, particularly if they are feeling distressed or vulnerable. Families may sometimes have unrealistic expectations of what can be achieved; not hearing may be a means of coping. It is important to be aware of this, and to repeat information and check understanding.

You should always make sure to document that such discussions have taken place in the patient’s notes.   

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