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Making difficult decisions – end-of-life guidance

The General Medical Council (GMC) has launched a consultation process in order to draft new guidance on end of life care, asking doctors and patients for their views on how some of these difficult decisions should be made.

Since the GMC last published guidance on this area in 2002, there have been significant developments and understanding in the area of human rights law, following the incorporation of the European Convention of Human Rights into domestic law almost 9 years ago. It is clear that under this legislation NHS bodies fall within the definition of a public authority, placing an obligation on doctors to respect the human rights of their patients in this context.

The most obvious rights in this context are the right to life (Article 2) and the right to respect for private life including personal autonomy (Article 8). Despite the clear, fundamental right expressed in Article 2, its role in medical treatment is fairly limited. The obligations on the NHS are high level obligations insofar as they are required to have appropriate measures and safeguards in place to protect patient lives and also undertake investigations into patient deaths; holding those accountable where necessary. Over recent years additional obligations have been established concerning patients who are at risk of suicide.

The decision taken in the Bland case in 1993 established that in certain circumstances it is lawful to withdraw life sustaining treatments (including artificial nutrition, ventilation and hydration) where it established this is in the best interests of the patient. A clear distinction was drawn between these actions and those where positive acts are taken with a view to ending the patient’s life so they don’t suffer any more.

The Fitness to Practise Panel case of GMV v Dr Ian Kerr highlighted to both the GMC and the public, the variance in attitudes and practices within the profession itself. Dr Kerr was accused of supplying a suicidal pensioner with sleeping pills to enable her to take her own life. Prior to the GMC investigation, Dr Kerr, in an interview with Strathclyde Police stated:

“If people expressed anxiety about how the end would be, whether it would be painful or distressing, I would tell them I was a member of the Euthanasia Society, or had been, and leave it at that. If they decided that’s good news, fine; and if they ignored it I would say that’s fine as well.”

He also told detectives that during his annual appraisal in May 2004 he admitted that he was “in favour of assisted suicide and had some experience of it in the practice”. He also said that he had prescribed sodium amytal and would continue to prescribe it for the purpose of patients ending their own lives under the right circumstances. The Committee on Safety of Medicines clearly state that sodium amytal tablets should only be used to treat “severe and intractable insomnia”.

Dr Kerr was suspended by the Panel for 6 months for his actions which were deemed by the GMC as “inappropriate, irresponsible, liable to bring the profession into disrepute and not in your patient’s best interest”.

In their new draft guidance ‘End of life treatment and care: good practice in decision making,’ the GMC aims to provide assistance so that doctors are able to deliver high standards of care by responding to individual’s clinical, emotional and psychological needs. This includes the emotively difficult decisions that need to be made in cases where treatments may become too burdensome of the patient in relation to the benefits they bring.

The draft considers the wider ethical principles surrounding good practice in the care of patients at the end of their life. It includes guidance on:

  • when to discuss the issues of cardiopulmonary resuscitation (CPR) with patients at the end of their life
  • clinically assisted nutrition and hydration
  • how to identify the best interests of children and young people who are dying.

It is clear that this is a difficult undertaking that seeks to provide doctors with assistance in this area while respecting the principle of self determination. It is clear that where issues concerning dignity, freedom of choice and life/death are involved, there are bound to be disagreements between patients, relatives and between factions of the medical profession itself.

Other new sections include advance care planning in accordance with the Mental Capacity Act 2005 (England and Wales) and the National Action Plan in Scotland.

The current consultation is scheduled to run until 13 July 2009, with finalised guidance anticipated towards the middle of 2010.

By Deborah Nicholson, Richard Nelson Solicitors