Withdrawing and Withholding Medical Treatment at the End of Life Simon Mills Legalities In End Of Life Care Conference October 2015

Overview Key Distinctions The legal basis for withholding & withdrawing medical treat ment near the end of life Leading cases In re a Ward of Court "Best interests” at the end of life In Re SR Considerations when it comes to minors: futile treatment PP v HSE The pregnant patient

Underpinning Distinctions Courts have drawn a line between ending life and allowing life to end Rooted in ideas of: Active steps versus passive steps Intention versus foreseeability Akin to the philosophical Doctrine of Double Effect

Underpinning Distinctions - II Hamilton CJ in In Re A Ward, citing Taylor L.J. in  Re J. (A Minor) (Wardship: Medical Treatment  ) [1991] Fam. 33 “That [“terminating life”] would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life.”

Underpinning Distinctions – III Three essential categories of individual at the end of life: Those who undoubtedly have capacity Those whose capacity is in doubt Those who undoubtedly lack capacity (and/or where consent is withheld by those with decision making power) In this talk we discuss the case law: other mechanisms (capacity legislation; advance statements; EPA) are also part of any rounded consideration.

Patients with Capacity - I A person with capacity is entirely free to refuse lifesaving or life-sustaining treatment, assuming: They are acting voluntarily (JM case [2003] 1 IR 321) They have the requisite capacity (age and mental capacity) (FK case: [2009] 2 IR 7) They have the requisite information (Re T [1992] 4 All ER)

Patients with Capacity - II Essential legal position is as follows: Medical treatment may not be given to an adult person of full capacity without his or her consent…This right arises out of civil, criminal and constitutional law... The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons. – Re a Ward of Court, Denham J, p. 156

Patients with Doubtful Capacity In such cases, a Court application may be necessary Following FK case, any application should – ideally – have the following characteristics: On notice to patient Patient represented Clear medical evidence in relation to underlying condition and lack of capacity (ideally independent capacity opinion) The capacity assessment may circumvent an application This category possibly also includes those cases where guidance provided by existing law is uncertain

Where no consent… Consent to the withholding or withdrawal of treatment at the end of life may be put in issue in the case of the patient with lack of capacity because: No consent can be obtained due to lack of capacity Consent can be obtained but there is a dispute about how the case should be managed: Between clinicians and those with power to consent; Among those with power to consent

In Re A Ward – I Background Issue In 1970s, the Ward - who was then 22 years old - underwent a minor operation under anaesthetic. During the procedure she suffered three cardiac arrests. Since that catastrophe the ward has been completely dependent on others, requiring total nursing care. Diagnosis seems to have been a “near” persistent vegetative state. Issue Whether artificial feeding could be withdrawn, inevitably resulting in death

In Re A Ward – I I Decision in the High Court I take the view that the proper and most satisfactory test to be applied by the Court in this case is the best interests test, i.e., whether it is in the best interests of the ward that her life, such as it is at present, should be prolonged by the continuation of the abnormal artificial means of nourishment… At all times, the right to life is treated as a pre-eminent right, where rights need to be balanced

In Re a Ward – III Inescapable that there may be role for the wishes of the family: “considerable weight” This is not a “right” though: At issue in this case are the personal rights of the ward: not the rights of the fundamental unit group of the State [i.e., the Family]. Thus, it is a matter which falls to be decided as a matter of personal rights rather than under Article 41. Per Denham J at 164-5

In Re a Ward – IV Relevant factors, expressly articulated by Hamilton CJ: [The High Court judge] had regard to the condition of the ward, to the fact that the treatment was intrusive and burdensome and of no curative effect, to the fact that the ward had only minimal cognitive function, had been in that condition for twenty three years, to the wishes of the mother and other members of the family, to the medical evidence and to the submissions by all the parties to the proceedings. A similar – but not identical – list provided by Denham J

In Re SR [2012] 1 IR 305 SR dealt with new issues: A minor Treatment at issue not chronic in nature, but recurrent and lifesaving (as opposed to life preserving) Arguably a more pressing question of futility

In Re SR - II S.R. was a minor and a ward of court. He had suffered extensive irreversible brain damage as a result of a near drowning incident. He was completely dependent for all his care needs. No prospect of recovery and medical evidence was that artificial ventilation would not be in his best interests.

In Re SR – III A strong presumption in favour of authorising life saving treatment but this presumption was not irrebuttable and could be deviated from in exceptional circumstances. The court would in exceptional circumstances authorise steps not being taken to prolong life but could never authorise a course of action which would accelerate death or terminate life. That, while the views of the parents and doctors must necessarily be taken into consideration in determining the correct course of action, the decision was solely one for the court: to some extent, this is at odds with In Re A Ward of Court (note, though, the obiter observation of Kearns P)

In Re SR - IV In determining whether life saving treatment should be withheld, the paramount and principal consideration was the best interests of the child. That, in balancing all the circumstances, account should be taken of (a) expected pain and suffering if child survived, the longevity and (b) quality of life if he survived, (c) inherent pain and suffering involved in the proposed treatment and the (d) views of the child's parents and doctors. Futility of the treatment was a clear element of

In Re SR - V Decision not based on whether the quality of life which the child would enjoy would be intolerable but should determine the best interests of the child subjectively from the child's point of view. Recognises a criticism of In Re A Ward? Obiter: The court could not conceive of any circumstance where it would be appropriate to require a medical practitioner to adopt a course of treatment which in the bona fide clinical judgment of the practitioner was not in the best interests of the patient

PP v HSE [2014] IEHC 622 – I NP collapsed while pregnant on 29 November 2014 On life support, but brain stem death confirmed on 3 December 2014: at that time, 15 weeks pregnant at most. Maintained in ICU “because unborn child still had a heartbeat” with a view to preserving pregnancy Tracheostomy inserted 17 December 2014

PP v HSE - II Evidence NP and partner intended to carry pregnancy to term Medical condition of NP very poor and getting worse That deterioration in mother’s condition was clearly injurious to the unborn Limited medical evidence from other cases that foetus of this gestation likely to survive to term “No reasonable prospect…”

PP v HSE – III Court factored in the wishes of the mother in relation to her pregnancy (at 17): From such evidence as was available, the Court believes that N.P. would have fought long and hard to bring her unborn child to term. However, that intention, if such it was, falls well short of any expression by her that her present predicament and that of her unborn child should continue in the direction in which it is presently heading.

PP v HSE – IV Article 40.3.3 was “engaged” by the case (although there is some confusion on this point), but, in vindicating the right to life of the unborn: [A Court] should not make orders which are futile, impractical or ineffective Relied heavily on In re a Ward of Court The unborn (like the incompetent adult and the child) has “best interests” that fall to be considered when treatment is to be withdrawn.

PP v HSE - Unanswered Questions Cases with different facts? The Court is satisfied that a necessary part of vindicating that right is to enquire as to the practicality and utility of continuing life support measures. Examples Where child (unlike in PP) could be delivered now (with chance of disabilities) or later. Refusal of treatment by mother, where that treatment is for her and not for the unborn child and where that treatment would allow her to live long enough to deliver a viable child.

Conclusions The key question is always one of “best interests” Primarily determined by medical evidence Role (but only a guiding role) for Family Wishes of individual? Courts will inevitably have to determine hard cases in the future, but legislative developments may help.

Questions/Comments: smills@lawlibrary.ie