Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.
- clinical ethics
- end of life care
Statistics from Altmetric.com
If you wish to reuse any or all of this article please use the link below which will take you to the Copyright Clearance Center’s RightsLink service. You will be able to get a quick price and instant permission to reuse the content in many different ways.
Read the full text or download the PDF:
Other content recommended for you
- It is never lawful or ethical to withdraw life-sustaining treatment from patients with prolonged disorders of consciousness
- Withdrawing clinically assisted nutrition and hydration (CANH) in patients with prolonged disorders of consciousness: is there still a role for the courts?
- Withdrawing life-sustaining treatment: a stock-take of the legal and ethical position
- Causes and consequences of delays in treatment-withdrawal from PVS patients: a case study of Cumbria NHS Clinical Commissioning Group v Miss S and Ors  EWCOP 32
- Not so new directions in the law of consent? Examining Montgomery v Lanarkshire Health Board
- When ‘Sanctity of Life’ and ‘Self-Determination’ clash: Briggs versus Briggs  EWCOP 53 – implications for policy and practice
- Grounded ethical analysis
- ‘Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘patient-centred care’
- Withdrawing treatment from patients with prolonged disorders of consciousness: the presumption in favour of the maintenance of life is legally robust
- Commentary on Charles Foster’s ‘The rebirth of medical paternalism: an NHS Trust v Y’