Identifying Appropriate End-of-Life Care: Withdrawing and Withholding Medical Treatment John Lombard

Introduction Withholding and withdrawing treatment Treatment withdrawal from a person in a persistent vegetative state The withholding and withdrawal of treatment from a person in a minimally conscious state Treatment withdrawal in palliative care

Withholding and Withdrawing Treatment Treatment – mechanical ventilator dialysis machines artificial nutrition and hydration Artificial nutrition – provision of nutrition through non oral methods Artificial hydration – patient not capable of tolerating oral fluids

Withholding and Withdrawing Treatment Focus on the best interests of the patient Fear of undertreatment and/or overtreatment of the patient An obligation to act?

Persistent Vegetative State Re a Ward of Court [1996] 2 IR 79 The withdrawal of artificial nutrition and hydration High Court (Lynch J) treatment could be withdrawn Supreme Court (4:1) permitted the withdrawal of treatment Focus on the best interests test

Persistent Vegetative State Airedale NHS v Bland [1993] AC 789, [1993] 2 WLR 350 Distinction between Tony Bland and the woman in Re a Ward of Court Safeguards – declaration to be sought from the courts prior to withdrawing treatment

Persistent Vegetative State Airedale NHS v Bland [1993] AC 789, [1993] 2 WLR 350 Every effort should have been made to provide rehabilitation for at least six months; Diagnosis of irreversible PVS should not be considered confirmed until at least twelve months after the injury; Diagnosis should be agreed by two independent doctors; and Generally the views of the patient’s immediate family will be given great weight.

Persistent Vegetative State Medical Treatment ANH OR Medical Care No duty to provide futile medical treatment

Persistent Vegetative State Re a Ward of Court [1996] 2 IR 79 Best Interests The current condition of the ward, the level of bodily invasion which the medical treatment would require, the likely impact of the medical treatment, input from the family, carers and medical practitioners, and constitutional requirements that life be respected and protected.

Persistent Vegetative State Re a Ward of Court [1996] 2 IR 79 The Level of Consciousness ‘if such minimal cognition as she has includes an inkling of her catastrophic condition, then I am satisfied that that would be a terrible torment to her and her situation would be worse than if she were fully PVS’ (Lynch J, High Ct)

Persistent Vegetative State Re a Ward of Court [1996] 2 IR 79 ‘if slightly more cognitive function existed, would a right to withdraw sustenance still be claimed to be permissible? Where would the line be drawn? Cognition in a human being is something which is either present or absent and should, in my opinion, be so recognised and treated. Any effort to measure its value would be dangerous’ (Egan J, Supreme Ct)

Persistent Vegetative State Re a Ward of Court [1996] 2 IR 79 ‘As the process of dying is part, and an ultimate, inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life.’

Minimally Conscious State ‘a condition of severely altered consciousness in which minimal but definite behavioural evidence of self or environmental awareness is demonstrated.’ Giacino et al. ‘The minimally conscious state: definition and diagnostic criteria’ (2002) 58(3) Neurology 349

Minimally Conscious State W v M [2011] EWHC 2443 (COP) Opinion of the family v opinion of the carers Baker J emphasised the preservation of life there is a very strong presumption in favour of taking all steps which will prolong life and, save in exceptional circumstances, or where the person is dying, the best interests of the patient will normally require such steps to be taken

Minimally Conscious State Aintree University Hospitals NHS Foundation Trust v David James and Others [2013] UKSC 67 - The withholding of treatment but not ANH United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16 - Withholding ANH

The Legal Framework Assisted Decision-Making (Capacity) Bill 2013 Irish Medical Council There is no obligation on you to start or continue a treatment, or artificial nutrition and hydration, that is futile or disproportionately burdensome, even if such treatment may prolong life. You should carefully consider when to start and when to stop attempts to prolong life, while ensuring that patients receive appropriate pain management and relief from distress. (Section 22.2)

The Legal Framework An Bord Altranais So long as there remains a means of nutrition and hydration of this patient it is the duty of the nurse to act in accordance with the Code and to provide nutrition and hydration. In this specific case, a nurse may not participate in the withdrawal and termination of the means of nutrition and hydration by tube. In the event of the withdrawal and termination of the means of nutrition and hydration by tube the nurse's role will be to provide all nursing care.

Specialist Palliative Care Royal Dutch Medical Association, ‘Guideline for Palliative Sedation’ (Royal Dutch Medical Association 2009) Importance of the decision-making framework The committee would emphasise that two distinct decisions are involved here, which are taken together, but where the key lies in the initial decision by the patient himself. The order in which the decisions are taken and the existence of an interval between the two separate decisions are crucial.

Conclusion Importance of clear decision-making framework Need to protect and promote patient autonomy Best interests of the patient Lambert and Others v France (App No. 46043/14) 7th January 2015 Grand Chamber Hearing