Guest Post: Jenny Kitzinger, Celia Kitzinger and Jakki Cowley

Paper:  When ‘Sanctity of Life’ and ‘Self-Determination’ clash

In a recent landmark judgment in the Court of Protection (Briggs v Briggs [2016] EWCOP 53), a judge authorised withdrawal of life-prolonging treatment from a minimally conscious patient with potential for further recovery.  Our article in the Journal of Medical Ethics addresses the implications of this judgment, highlighting its potential to strengthen compliance with the Mental Capacity Act 2005, and the delivery of person-centred care.

How this will work in practice is another question.

We have supported families (CK and JK) and represented patients (JC) in a series of cases – several of which have reached court – in which families sought treatment withdrawal and doctors refused.  We know many families who believe that their brain-injured relative would not want to receive on-going life-prolonging interventions. It usually takes years for families to come to this view and even longer to communicate it to doctors. Some health care professionals can be dismissive – or even hostile – when families speak up.   Even when doctors acknowledge that a patient will never regain consciousness, some have ethical objections to withdrawing treatment from a clinically stable patient.  It feels, they say, like ‘euthanasia’.

An ethical imperative to give treatment is experienced even more acutely, by some doctors, when the patient may make some degree of ‘progress’ – perhaps recovering consciousness and the ability to interact with others. The treating clinician in the Briggs case was firmly of the view that it would be unethical to withdraw treatment from a patient whose level of consciousness might improve over time.  This view was not supported by the Court of Protection judgment.

The judge, Charles J emphasised the importance of finding out what the patient would have wanted in their current situation and said that if this “can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life” (para. 62(ii)).   After hearing evidence provided by Mr Briggs’ family and friends, he concluded that  – although Mr Briggs had never specifically said that he would not want a feeding tube if he were to be in a minimally conscious state – it was clear from what he had said about related matters, and from the values he displayed in how he lived his life, that he would have refused this treatment. The judge therefore authorised treatment withdrawal.

In the six months since the Briggs judgment, we’ve discussed it with many clinicians and used it in training with legal and healthcare professionals – both in relation to advance decisions to refuse treatment and in relation to best interests decision-making.  We’ve found some healthcare professionals express relief that the law supports a person-centred, ethical position that accords with their own sense of how they want to work.  However we have also encountered resistance from some clinicians who do not want to give much weight to the patient’s views when these conflict with their own sense of what is right.

Several (senior) doctors have told us that they would deliver CPR in the best interests of a patient who had capacitously refused it moments before her collapse.  Others have said that they would give treatments in the best interests of a patient who had refused them via an Advance Decision (AD), at least pending legal advice as to its validity and applicability.  When we point out that giving treatment to a capacitous patient who has lawfully refused (contemporaneously or in advance) constitutes assault, battery or civil trespass, they say that the Mental Capacity Act gives sufficient ‘wiggle room’.  For example, no liability is incurred for giving treatment unless you are “satisfied” that an AD is valid and applicable (s. 26(2) Mental Capacity Act) – and they would not be ‘satisfied’ without legal advice.

Treatment refusals conveyed second-hand via families who are extrapolating what the person would want from their prior values, wishes, feelings, and beliefs – rather than reporting specifically stated refusals – stand even less chance of being respected (or even acknowledged).

We recently attended a best interests meeting at which two consultants refused even to consider stopping a treatment (the feeding tube) provided to a profoundly brain-injured patient who was showing signs of improvement. Despite acknowledging that the person would be very unlikely to recover to a quality of life he’d have considered worthwhile, they said it would be unethical not to give treatment. One consultant, who we challenged by citing the Briggs case, said it “wasn’t relevant” because Mr Briggs had been minimally conscious and so the judge’s reasoning could not be generalised to her patient who was above minimally conscious.

So, despite the clear practical and policy implications of Briggs we’re concerned that the system continues to side-line what the patient would have wanted in favour of a taken-for-granted implicit sanctity-of-life approach.   Yet, the judgment does send out a clear signal, underlining the weight that should be given to patients’ wishes; what is needed for this to work in practice is increased training and support for health care professionals in putting the patient’s values (rather than their own) at the heart of decision-making.