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Ethics briefing – December 2021
  1. Dominic Norcliffe-Brown1,
  2. Sophie Brannan2,
  3. Martin Davies2,
  4. Veronica English2,
  5. Caroline Ann Harrison3,
  6. Julian C Sheather2
  1. 1 Medical Ethics & Human Rights, British Medical Association, London, UK
  2. 2 Medical Ethics, British Medical Association, London, UK
  3. 3 Ethics, BMA, London, UK
  1. Correspondence to Mr Dominic Norcliffe-Brown, British Medical Association, London, UK; dnorcliffe-brown{at}bma.org.uk

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Delay in resolving disagreement in relation to CANH

In a recent judgment1 the Court of Protection was highly critical of health professionals for continuing to provide clinically-assisted nutrition and hydration (CANH) in the face of disagreement about the patient’s best interests, without seeking to resolve the issue. This hearing had been set up specifically to consider whether GU’s dignity had been properly protected, and if not why not, given concerns raised by the Official Solicitor about what she considered to be “a complete abrogation of responsibility to consider properly or at all, and to determine whether it was in GU’s best interests and therefore lawful to continue to give him an invasive medical treatment, CANH.” (para 38)

In April 2014, at 63 years old and living in Thailand, GU sustained severe injuries after suffering from an electrocution accident. He sustained a cardiorespiratory arrest with a significant delay before cardiopulmonary resuscitation was started and was unconscious and unresponsive. In September 2014 he was transferred to the UK. In August 2018, GU’s brother made a request for a best interests decision concerning the continuation of CANH. The family met to discuss this and all except GU’s son, agreed that continuing CANH was not in GU’s best interests. In view of the fact that there was not unanimity among the family, a decision was made that CANH should continue.

Commenting on this decision, Mr Justice Hayden said ‘the apparent assumption that in the face of family disagreement ‘therefore (GU) will continue to be cared for by nursing staff” is a troubling non sequitur’ and stressed that ‘family dissent to a medical consensus should never stand in the way of an incapacitated patients’ best interests being properly identified’ (para 4).

He also made clear that the responsibility for ensuring that a best interests assessment is undertaken rests with the …

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Footnotes

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Provenance and peer review Not commissioned; internally peer reviewed.

  • In the UK, the legal obligation for confidentiality is one of common law. The common law duty of confidentiality has been established by decisions made by the courts which create binding legal precedents – rather than statutory acts of parliament. In practice, within the health and care system, the common law duty of confidentiality means that when information is given in circumstances where it is expected that a duty of confidence applies (for example between a doctor and patient), that information cannot be disclosed without consent unless there is another valid legal basis.

  • The role of the National Data Guardian is to advise and challenge the health and care system in England to help ensure that citizens’ personal confidential information is safeguarded securely and used properly.

  • The General Medical Council is the regulatory body for doctors in the UK. It sets professional and ethical standards of practice which doctors must follow.

  • General Medical Council (2021) Confidentiality: Good practice in handling patient information, paras 63–70

  • For BMA guidance on disclosures in the public interest see British Medical Association (2021) Confidentiality and health records toolkit, pp 14–17 https://www.bma.org.uk/media/4283/bma-confidentiality-and-health-records-toolkit-july-2021.pdf

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