Acute Care 2 (End of life, ADs, LPA) Flashcards
Significance of the Tracey Ruling?
If a patient has capacity to engage in the discussion, then there is a presumption of involvement of the patient in any discussion about DNACPR.
If NOT done: would breach the patient’s right to have their private life respected (Article 8).
o Duty to consult pt in relation to DNACPR unless think that patient will be distressed by being consulted and this distress might cause the patient physical or psychological harm; even if doctors decide there is no medical indication anymore for CPR, this still needs to be
o Judge went on to say that if a professional failed to address end-of-life issues for someone with a terminal illness, and they ended up being inappropriately resuscitated, this too could breach their human rights!
Significance of the Winspear Ruling?
If patient lacks capacity, presumption of involvement of their designated family member / carer. This does not mean there is an obligation to provide CPR.
Who instigates a DNACPR?
Why might it be considered?
Requested by patient or made by most senior member of team or GP after discussion with patient where appropriate and potentially also with their relatives. Must be signed by responsible senior officer / clinician, often GP / consultant / senior nurse if training. Kept in medical records usually on special recognisable form.
- Good practice accompany pt + consult them before coming to a decision, always if pt has capacity (lower likelihood of causing distress to adults)
- If don’t have capacity to decide , and haven’t made an AD to refuse treatment, healthcare team may consult with next of kin about what they know of your wishes to make a decision in your best interest
- Not permanent, can change your mind and your DNACPR status at any time
Usually multifactorial: blanket decisions should not be made e.g. >80 years. Some examples of when a decision is appropriate: CPR is unlikely to restart the patient’s heart, patient is in terminal stages of illness and believed that quality of life is such that the benefit of CPR would not improve their quality of life – review date should also be added in case patient’s circumstances improve and DNACPR then re-evaluated.
Many patients may never have been asked how and where they would like to die, so where possible, time should to be given to allow the patient a chance to reflect on these decisions and discuss them with their loved ones before they are put in place. Explaining what is meant by CPR (some think it equates to stopping medical treatment!) – detail what Tx they would or would not want at end of life and counter this with what would and would not be clinically effective or appropriate.
How to deal with disagreement about DNACPR?
Even a patient with capacity cannot insist on CPR if medical professional feels not in best interests (futile treatment) – Tracey ruling (Court of Appeal) imposes obligation on clinicians to DISCUSS decisions with patients (presumption in favour of patient involvement) unless would cause physical / psychological harm.
Where DNACPR decision made on grounds that CPR will not work, and patient or relatives do not accept decision, second opinion should be offered! In reality, if patient and relatives were adamant that the patient wanted to be resuscitated, it is likely that the medical professional would agree to this, as enforcing a DNACPR against someone’s wishes would inevitably lead to a breakdown in the doctor-patient relationship.
Resuscitation Council: guidelines for recording CPR decisions? (2015)
- Effective recording of decisions about CPR in a form that is recognised and accepted by all those involved in the care of the pt
- Effective communication with and explanation of decisions about CPR to patient, or clear documentation of reasons why that was impossible or inappropriate
- Effective communication with and explanations of decision about CPR to family / friends / carers / reps, or clear documentation of why this was not possible/ appropriate
- Effective communication of decisions about CPR among all healthcare workers and organisations involved with the care of the patient
What is an advance decision?
Statement of general wishes?
Advance decision: a statement which sets out what treatment a person would not want to receive or have continued at such a time when they no longer have capacity. (Sometimes known as ADRT or living will).
Statement of general wishes: could include what treatment a person would like to receive, the food they like / don’t like, what they want to happen to their cat etc. when they no longer have capacity
Advance decisions were developed in response to fears that medical profession may want to keep people alive or not withdraw treatment in circumstances that person themselves would not want. Enabling patients themselves to say what they would want when they still have the capacity to do so – patient’s autonomous decision making vs paternalism.
When is an AD legally binding?
Legally binding (under MCA) if:
- > 18 and had capacity when being made
- Specifies (in lay terms if necessary), specific treatment or medical procedure + circumstances in which it applies (must be explicitly stated)
- Person making decision has not subsequently withdrawn decision
- Person has not subsequently done anything clearly inconsistent with the decision
- Can be oral or written, BUT for life-sustaining treatment, AD must be in writing, signed and witnessed, and state the decision will apply ‘even if my life is at risk’
If legally binding, takes precedence over best interests decisions made by other people
When may an advance decision NOT be valid?
- Person withdrew the decision when they had capacity
- Had given authority to someone to give or refuse consent to the Tx to which the advance decision relates AFTER the advance decision was made
- They have done something which is inconsistent with the AD which would cast a doubt over the decision’s validity
- There are reasonable grounds for believing that circumstances exist which the person did not anticipate at the time of the advance decision and which would have affected their decision had they anticipated them
Judge ruling: where there is ‘alerting background’ of previous mental illness, rather than relying on the presumption of capacity at that time, the person making an ADRT should demonstrate that they had capacity at the time of making it; MCA Code of Practice states that if the person making an ADRT is clearly suicidal, may raise questions about their capacity to make it at that time.
Ethical issues surrounding AD?
- Did they have capacity at time of writing
- Can we be sure they really thought about ALL circumstances
- Did they really mean ALL treatment – did they think about AHN? New treatment they didn’t know about the time – might offer some recovery?
- Did they change their mind after they made the AD?
- What to do in an emergency?
• Can person in Time1 really predict that they want in Time2? Are they even the same person? Is their continuity in identity? Would they have different interests? If so, which interests should take priority? Should T2 be bound by previous choices?
‘If little or no psychological connectedness + continuity exists between the individual at the two points in time, then there is no particular reason why the past person, as opposed to any other person, should determine the present person’s fate’ – Dresser 1986
• Can we / should we, apply the principle of respect for autonomy to individuals who lack capacity?
What is an LPA?
Legal document: person (>18) gives another (>18) authority to act on his / her behalf: personal welfare (including health) and property + financial affairs. Only applicable if registered with the Office of the Public Guardian. Person appointed MUST act in person’s best interests – not just power to consent on the pt behalf.
Power only extends to decisions about life sustaining treatment (receiving or continuing to receive) if the documents clearly state this.
Life-sustaining treatment = any Tx doctor considered necessary to keep you alive, if don’t allow attorneys to give or refuse consent on your behalf, doctors will make the decision. Attorneys can only make decisions about life-sustaining treatment if you don’t have mental capacity. Sign and date option (A or B) on printed LPA doc, signature must be witnessed.
LPA - what must be done before acting
Before acting under an LPA, attorneys must make sure the LPA has been registered with the Public Guardian and take all practical / appropriate steps to help the donor make the particular decision for themselves. When acting under an LPA – must ensure MCA acts 5 statutory principles are followed – if person has capacity personal welfare LPA cannot be used, but a property and affairs LPA can be used even if they have capacity.
Anything done under authority of LPA must be in person’s best interest, anyone acting as an attorney must have regard to guidance in Code of Practice that is relevant to the decision to be made, and they must fulfil their duties and responsibilities to person who lacks capacity.
Role of Court of Protection for LPAs?
Decides if someone has capacity, makes declarations / decisions / orders on financial / welfare matters for those lacking capacity, appoint deputies to make these decisions, decide whether LPA or EPA is valid, and remove deputies or attorneys who fail to carry out their duties.
History of LPA
Prior to enactment of MCA (2007), power of attorney was restricted to financial affairs (Enduring Power of Attorney - EPA).
The attorney or done under a power of attorney can make decisions that are as valid as those made by the donor, before EPA Act (1985) every power of attorney became invalid as soon as donor lacked capacity, but the EPA act allowed the attorney to make decisions about property + financial affairs even if donor lacks capacity. The MCA replaced EPA with LPA, and increased the range of decisions people can authorise others to make on their behalf: can now cover personal welfare (including healthcare and consent to medical treatment). Donor can choose one person or several to make different kinds of decisions.
What are issues surrounding use of LPA?
- Responsibility that might not have predicted
- Disagreements between attorney and HCPs over best interest of patient
- What really is the role of the attorney? Is the attorney really just an advisor in a best interest assessment rather than someone with authority to make decisions on behalf of others?
Wrigley A (2007): Proxy consent: moral authority misconceived
While the intentions are to increase the autonomous decision making powers of those unable to consent, author argues that the whole notion of proxy consent collapses into a paternalistic judgement regarding the other person’s best interests, and that the new legislation introduces only an advisor, not a proxy with the moral authority to make treatment decisions on behalf of another.
- “good empirical evidence that people are poor proxy decision makers with regards to accurately representing other people’s desires / wishes, therefore this is a pragmatically inadequate method of gaining consent”
- “philosophical theory explaining how we represent other people’s thought processes indicates that we are unlikely ever to achieve accurate simulations of others’ wishes in making a proxy decision”
- “even if we could accurately simulate other people’s beliefs and wishes, the current construction of proxy consent in the MCA means that it has no significant ethical authority to match that of autonomous decision making. Instead, it is governed by a professional, paternalistic, best-interests judgement that undermines the intended role of a proxy decision maker. Author argues in favour of clearly adopting the paternalistic best-interests option and viewing the proxy as solely an advisor to the professional medical team in helping make best-interests judgements”.
History of law surrounding withdrawal of ANH?
Withdrawal of ANH (artificial nutrition + hydration) in a PVS (persistent vegetative state i.e. >4 weeks) or minimally conscious.
- Bland case set precedent for all such cases to go to court
- Recent Supreme court judgement: now no requirement in law for withdrawal of ANH to be taken to court where there is no dispute that it is in the patient’s best interest
- Court of Protection decision still required when there is a disagreement
GMC End of Life Guidance?
(2010): ‘following established ethical + legal (including human rights) principles, decisions concerning potentially life-prolonging treatment must not be motivated by a desire to bring about the patient’s death, and must start from a PRESUMPTION in FAVOUR of prolonging life’
GMC end of life (2010): ‘for children or adults who lack capacity to decide, when reaching a view on whether a particular Tx would be more burdensome than beneficial, assessments of the likely QoL for the pt with or without that Tx may be one of the appropriate considerations’
Sometimes, not practical or appropriate for court to make single declaration or decision. In such cases, can appoint deputy to act for and make decisions for person.
If a deputy needs to be appointed, it should be limited in scope and for short as time as possible.Deputy is likely to be family member or someone who knows person well but in some cases court may decide to appoint deputy who is independent of the family (e.g. where person’s affairs or care needs are particularly complicated).
Passive vs active euthanasia?
Arguments for having this distinction?
Passive euthanasia: withholding or withdrawal life-prolonging treatment (omission)
Active euthanasia: act resulting in death (act)
Active euthanasia illegal in UK under all circumstances; passive euthanasia is permitted in certain circumstances – therefore law draws difference between acts and admission. Legal system: bridge divide between complex ethical arguments and practical real dilemmas
- Passive more morally acceptable for many as act ‘interferes’ with natural course of events
- Omission provides a safeguard against a wrong diagnosis whereas action obliterates any chance of recovery
Arguments against treating passive euthanasia different to active euthanasia?
On compassionate grounds act preferable – quick resolution / end of suffering, all interventionist medicine dealing with disease and death disrupts nature anyway.
- Autonomy seems to explain why distinction exists – where individual cannot express their own autonomy there is a need to act in their best interest. To allow active euthanasia allows action open to misuse by those who act dispassionately without patients consent
o Same argument could be applied to withdrawing, but idea that someone dies who would have died is more acceptable than ending life of someone who would have lived
o Supreme Court (2013): if not in the best interest of a patient lacking capacity to continue receiving life-prolonging Tx it would be unlawful not to withdraw it – adds weight to the idea that acting (by introducing life-prolonging treatment) not always in best interests of patient who lacks capacity to choose
o Doctrine of double effect: traditionally states that an action which has a good objective may be performed even though can only be achieved at expense of corresponding harmful effect > opioids pain relief where dose required for pain relief may inadvertently contribute to death but no intention to kill. Remains controversial and many feel that with advances in palliative care and careful prescribing – no role in ethics of end-of-life care. ‘No circumstances in which the prescription of a lethal dose of opioid is necessary to control suffering, and therefore there is no need to invoke the doctrine of double effect’.
Ethical principles when applied to decisions about QoL and withholding Tx?
If disagreement about QoL between clinicians and family – legal advice
- Avoid personal views about QoL and judgements based on assumptions about healthcare needs of particular groups e.g. older people, disabilities.
- Heavy burden on those advocating course leading to death that QoL so poor that further Tx would only prolong suffering – MCA code of practice may be best interests in limited number of cases not to receive life-sustaining treatment ‘where treatment is futile, overly burdensome to the patient or where no prospect of recovery – even if non-provision of treatment is likely to result in death.”
- Doctrine of sanctity of life: human life has intrinsic value and therefore wrong to intentionally deprive person of life even to avoid extreme suffering. Religious version of the doctrine: as life is God given, only God can take it away
- Secular version: all humans are equal therefore nobody has the authority to determine another’s life is not worth living
- Even if human life has infinite value, justice / beneficence / non-maleficence still important?
Threshold at which sanctity of life yields to quality of life difficult to assess – how to define / measure minimum quality of life? Social / emotional / physical wellbeing – carry out tasks and intellectual capacity should be taken into consideration. Acceptable QoL depends on perspective – decision maker or the patient?
What is basic care vs CANH?
The provision of food seems a ‘quintessential example of kindness and humanity that it is hard to imagine a case in which it would be morally right to withhold it’ – Airedale vs Bland
- ‘Basic care’ includes offer of food and water by mouth, should always be offered to patients
- CANH – invasive means of providing nutrition + fluids e.g. PEG, NG, IV; if capacity may refuse CANH but decision to provide it is a clinical one and pts cannot demand that doctor administers a Tx which the doctor considers adverse to patient’s clinical needs
Ethical issues surrounding whether to provide CANH?
- If lack capacity – decision maker must consider whether provision of CANH is in best interests – presumption in favour of prolonging life and will normally mean that all reasonable steps are taken to prolong a patient’s life
- CANH may prolong life but may be burdensome – benefits, burdens risks as approach end of life is not clear cut; if simply prolongs dying may not be in best interests; sanctity of life not infringed by ceasing to give invasive treatment that confers no benefit to the patient
- No obligation to provide FUTILE treatment; ethically controversial concept as Tx considered futile relative to its goal: if the goal is to prolong life then CANH achieves this and would not be considered futile, but may not return the patient to QoL they consider worthwhile
- Article 2 ECHR: positive obligation to give life-sustaining treatment in circumstances where it is in the best interests of the patient but does not impose an absolute obligation to treat if such Tx would be futile
What is futile treatment?
When is it provided / not provided?
Treatment has been considered futile if it cannot cure or palliate the disease or illness from which the patient is suffering.
Supreme Court: treatment is not futile if it provides benefit to the patient ‘even though it has no effect on the underlying disease or disability’ – Aintree Case
- Judge: he was not persuaded that Tx would be futile or overly burdensome, or that there was no prospect of recovery (criteria in the MCA Code of Practice). He took recovery to mean return to a quality of life the patient would regard as worthwhile, rather than return to full health.
- If Tx allows pt to continue living what they regard as a worthwhile life, Tx has some benefit and could not be said to be futile. Pt decides what is futile not the doctor?
- No legal obligation to provide Tx with no clinical benefit; pt decides if futile but doctor decides if clinically indicated and therefore provided to patient.
- Ethical duty for good clinical care: includes physical and psychological
Ethical issues surrounding switching off a ventilator?
What if fetus involved?
Legally permissible to switch of ventilator as continued ventilation futile
In practice agreement should be sought from next of kin – husband does not think ventilation futile; clinical uncertainty for fetus taken into account; fetus no legal status and no interests which outweigh mother in pregnancy – Case law provides that altruistic wishes of the patient can be relevant in determining best interests, even if the patient has no awareness of and no reaction to the fact that such wishes are being respected. Another court judgement: person in permanent vegetative state ‘has no best interests of any kind’ – dignity in death is key concern. (utilitarianism vs means to another’s end), utilitarianism – joy to family and baby; ITU expensive – no hope for recovery – provide resources for other patients with prospect of survival?
What is the legal position in the UK for assisted suicide and voluntary euthanasia?
Euthanasia: act of deliberately ending a person’s life to relieve suffering
Assisted Suicide: act of deliberately assisting or encouraging another person to end their life (final gesture should be made freely by the person committing suicide).
- Both illegal under the UK law
Suicide itself is not a crime but encouraging or assisting suicide is a criminal offence: up to 14 years imprisonment (Suicide act 1961)
Euthanasia regarded as ether murder or manslaughter, max. penalty is life imprisonment
