It is never lawful or ethical to withdraw life-sustaining treatment from patients with prolonged disorders of consciousness

Charles Foster

doi:10.1136/medethics-2018-105250

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It is never lawful or ethical to withdraw life-sustaining treatment from patients with prolonged disorders of consciousness

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Re: It is never lawful or ethical to withdraw life-sustaining treatment from patients with prolonged disorders of consciousness
Richard W K Brocklesby, Charlotte Caves and Emily Boother
Published on: 19 March 2019

Published on: 19 March 2019
Re: It is never lawful or ethical to withdraw life-sustaining treatment from patients with prolonged disorders of consciousness
- Richard W K Brocklesby, Medical Student Imperial College London
- Other Contributors:
  Charlotte Caves, Medical Student
  
  Emily Boother, Medical Student
Abstract

Foster considers that is it not ethically nor lawfully acceptable to withdraw life-sustaining treatment from patients with Permanent Disorder of Consciousness(1) (PDOC). Though we agree the proposition has strong grounds to be made, we conclude that stating this to be the case “under any circumstances” may be oversimplifying the issue. We look at the case of W v M 2011 where withdrawal of life-sustaining treatment was denied and compare it to the cases of Airedale NHS Trust v Bland 1993 and Briggs v Briggs 2016 in which it was deemed legal to withdraw life-sustaining treatment from PDOC patients on the grounds of best interests. We also discuss some points in which Beauchamp and Childress’s ethical principles regarding ‘non-maleficience’ and ‘respect for autonomy’ do not align with Foster’s view, such as advanced directives and treatment side effects.

Withdrawal of life-sustaining treatment is unlawful

Foster makes a strong argument regarding the ambiguity surrounding the issues of removing life-sustaining treatment. Cases such as W v M 2011(2) exemplify how this uncertainty has affected the legal stance on this issue. M had suffered from a non-traumatic brain injury resulting in a ‘minimally conscious state’ (MCS), with intermittent periods of awareness. Though M was still left with the ability to have joyful experiences, she also had to endure periods of significant pain. Previously, M had expressed her wishes to never be wholly dependent o...
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Abstract

Foster considers that is it not ethically nor lawfully acceptable to withdraw life-sustaining treatment from patients with Permanent Disorder of Consciousness(1) (PDOC). Though we agree the proposition has strong grounds to be made, we conclude that stating this to be the case “under any circumstances” may be oversimplifying the issue. We look at the case of W v M 2011 where withdrawal of life-sustaining treatment was denied and compare it to the cases of Airedale NHS Trust v Bland 1993 and Briggs v Briggs 2016 in which it was deemed legal to withdraw life-sustaining treatment from PDOC patients on the grounds of best interests. We also discuss some points in which Beauchamp and Childress’s ethical principles regarding ‘non-maleficience’ and ‘respect for autonomy’ do not align with Foster’s view, such as advanced directives and treatment side effects.

Withdrawal of life-sustaining treatment is unlawful

Foster makes a strong argument regarding the ambiguity surrounding the issues of removing life-sustaining treatment. Cases such as W v M 2011(2) exemplify how this uncertainty has affected the legal stance on this issue. M had suffered from a non-traumatic brain injury resulting in a ‘minimally conscious state’ (MCS), with intermittent periods of awareness. Though M was still left with the ability to have joyful experiences, she also had to endure periods of significant pain. Previously, M had expressed her wishes to never be wholly dependent on anyone. Consequently, her family sought a declaration under the Mental Capacity Act 2005, stating that it was in M’s best interests to withdraw clinically assisted nutrition and hydration (CANH). Baker J argued, however, that despite M’s wish to withdraw CANH, she had the capacity for experiential interests that included significantly positive aspects. The ruling therefore supported the notion that CANH should persist, overriding her wishes. There is a medical and societal interest to preserve life and we acknowledge that in some situations it is illegal to withdraw life-sustaining treatment.

Lawful withdrawal of life-sustaining treatment

However, reflecting on the case of Airedale NHS Trust v Bland 1993(3), highlights situations where the omission of life-sustaining treatment can be lawful. Bland, a victim of the Hillsborough disaster, had been left in a persistent vegetative state (PVS) with no previously expressed wishes. Although Foster argues that the uncertainties surrounding PDOC mean that best interests can never be concluded, in the case of Bland, it was argued that a person in a PVS could not have best interests. Furthermore, the Mental Capacity Act 2005(4) states that is legal to provide a treatment when it is in the patient’s best interests. Thus, if it is no longer in the patient’s best interests to receive the treatment, it can legally be withdrawn. If the treatment were not in the patient’s best interests, this law means continuation would constitute a crime of battery and trespass against the person. Removing CANH not in the patient’s best interests would therefore be legal and consistent with duty of care.

Furthermore, in the case of Briggs v Briggs 2016(5), the Court of Protection deemed the removal of CANH to be in the best interests of a patient left in a MCS, despite knowing death was the inevitable consequence. After a road traffic accident, Briggs had been left in a MCS with no official advanced directive. However, he had previously made it known that should such a situation occur, he would not want life-sustaining treatment. Charles J argued that this was a decision that P would have made; therefore it should prevail over preservation of life. This therefore shows that continuing CANH is not the lawful course of action in every circumstance, as it may not be in the best interests of all MCS patients.

Ethical arguments

Another way to approach these issues would be to consider the ethical implications. One ethical argument, stemming from Beauchamp and Childress’s Principles of Biomedical Ethics(6) is non-maleficence, ‘do no harm’. From a legal standpoint, Bland 1993 concluded that a continuation of a treatment that was not in a patient’s best interests, without prior consent from the patient, would constitute a crime of battery. Furthermore, as CANH is a medical treatment, it also has side effects. It could be argued that if CANH is not in a patient’s best interests, then the risk of side effects outweighs the benefit of continuing. Therefore, in some situations, it is not ethically advisable to continue life-sustaining treatment.

Another of Beauchamp and Childress’s Principles of Biomedical Ethics(6) is respect for autonomy. Foster argues advanced directives cannot be applicable as it is “impossible to know whether the state in which the patient is, is in fact in anything like the state contemplated at the time the decision was made”(1). However, taking this stance would mean that advance directives for unconscious patients, whether PDOC or not, could never be followed. It could be argued that all unconscious patients are in a different state to the one they were in when they contemplated their advanced decision. Taking this view is wholly paternalistic and undermines the patient’s ability to demonstrate bodily autonomy through an advanced directive. Not only does rejecting a patient’s bodily autonomy violate the humanity of the patient, it also reduces faith in the medical profession(7).

It is worth noting that the ethics of the other two principles of Beauchamp and Childress’s biomedical ethics, justice and beneficence, are much more complicated to discuss as these pertain to resource allocation. As Foster rightfully mentions, it is expensive to maintain patients in PDOC. However, discussing resource allocation would mean having to argue that the interests of other patients override the interests of PDOC patients. Therefore, we agree that if this argument were to be made, there would need to be revision of the law regarding societal interest to preserve life.

Summary

We agree that in some scenarios it may be unethical or illegal to withdraw life-sustaining treatment, however we also believe that it is an oversimplification to say that it is “never” ethical or legal. In some legal cases, such as Airedale NHS Trust v Bland 1993 and Briggs v Briggs 2016, it has been ruled that withdrawal of CANH from a patient in a PDOC is legal. Ethically, it could be argued that in some situations, continuing life-sustaining treatment violates the principles of non-maleficence and respect for autonomy. Whilst perhaps society has a fear of death and a societal interest to preserve life, it is important that these judgments do not affect our ability to objectively act in a legal and ethical way. Withdrawal of life-sustaining treatment is a complicated issue so we believe it is important not to over-simply the matter by claiming that it is never legal or ethical.

References

[1] Foster C. It is never lawful or ethical to withdraw life-sustaining treatment from patients with prolonged disorders of consciousness. Journal of Medical Ethics. Published Online: 14 February 2019. doi: 10.1136/medethics-2018-105250

[2] Mullock A. Best interests and the sanctity of life after W v M. Journal of Medical Ethics. 2013 Sep;39(9):553-4. doi: 10.1136/medethics-2012-100907

[3] Szawarski P, Kakar V. Classic Cases Revisited: Anthony Bland and Withdrawal of Artificial Nutrition and Hydration in the UK. Journal of the Intensive Care Society. 2012;13(2):126-129. doi:10.1177/175114371201300209.

[4] Legislation.gov.uk. Mental Capacity Act 2005. Available from: http://www.legislation.gov.uk/ukpga/2005/9/contents [Accessed 19th March 2019]

[5] Kitzinger J, Kitzinger C, Cowley J. When ‘Sanctity of Life’ and ‘Self-Determination’ clash: Briggs versus Briggs [2016] EWCOP 53 – implications for policy and practice. Journal of Medical Ethics. 2017;43:446-449. doi: 10.1136/medethics-2016-104118.

[6] Beauchamp T, Childress J. Principles of biomedical ethics, 5th ed. NY: Oxford University Press; 2001.

[7] Murgic L, Hébert PC, Sovic S, Pavlekovic G. Paternalism and autonomy: views of patients and providers in a transitional (post-communist) country. BMC Med Ethics. 2015;16(1):65. doi:10.1186/s12910-015-0059-z
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Conflict of Interest:
None declared.
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