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Rapid Responses: Rapid Responses published:
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Palliative Care in the ICU
- Michael J O'Leary (29 July 2002)
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Legal considerations
- Vivien C Stern (1 August 2002)
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Legal considerations
- Vivien C Stern (1 August 2002)
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Time to clarify the nature of Capacity to Consent?
- Steve Moorhead, Douglas Turkington (10 August 2002)
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Michael J O'Leary, Staff Specialist in Intensive Care Kogarah, NSW 2217
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We in Australia were somewhat surprised by the concerns of the doctors involved in this case. Withdrawal of life sustaining treatment is practised commonly in our ICUs. In my hospital, we have found that in excess of 50% of all ICU deaths involve withdrawal of life support (and this is probably an underestimate as it relies on the Senior Registrar remembering to check a tick-box on our audit forms). In the vast majority of cases the patient themselves are unable to participate in the decision not to continue with treatment, either due to sedation, encephalopathy of illness or brain injury. The decision is thus made by the medical team in consultation with the patient's relatives or other person responsible. It may be surprising to many that we rarely have difficutly with these decisions. We believe that me manage these deaths in the ICU in a comassionate and dignified manner, and are convinced that such a death is far preferable to continuing onerous and potentially degrading therapy which is clearly destined to be futile. Perhaps the major concern, however, is the inability of the patient themselves to have input into the decision making process. How much easier it is when a patient themselves can say "no more". In this situation we have no doubts, and consensus is easily achieved. |
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Vivien C Stern, solicitor 30 Goldhurst Terrace London NW6 3HU
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Dr. Sensky's resume of the case is very clear, and I am sure clinicians will welcome his guidance. However, there are two aspects which maybe could be underlined: 1) He says that it is only after the consultation process with the patient has failed that an application to the high court should be considered. This particular application to the high court was brought by the patient, not the hospital authorities. Where a doctor is acting unlawfully (as was the case here - see below) any patient is entitled to apply to the court at any time, even immediately after the doctor has first refused to discontinue treatment. There is no obligation on the patient to stall until a process of consultation has finished. Dr. Sensky is otherwise quite right that the patient should be involved in and consulted upon management 2) The court made a finding that the continuing of treatment which Ms. B had refused was the tort of "trespass to the person"; this is a legal concept broadly similar to "assault". For this Ms. B was entitled to damages. Although she wanted the court to recognize that the tort had been committed, she did not want to drain NHS funds, and so at her own request the award of damages that was ordered was nominal, only £100. There is an important lesson here to be learnt by both the medical and nursing professions - that administering unwanted treatment is an offence which may result in large awards of damages. We do not know how much Dame Elizabeth Butler-Sloss would have awarded if she had been asked to put a figure on it, because she was not asked to do so. In future, however, other patients might seek to obtain the maximum possible compensation |
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Vivien C Stern, Solicitor 30 Goldhurst Terrace, London NW6 3HU
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Dear Editor - I would like to make one small correction to the Response I sent in to you a few hours ago. In my second paragraph I said: " 1) He says that it is only after the consultation process with the patient has failed that an application to the high court ...." Would you kindly delete the words "with the patient" It should read: "1) He says that it is only after the consultation process has failed that an application to the high court ...." |
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Steve Moorhead, Consultant in General Psychiatry and Cognitive Therapy The Grange, Grange Ave., Benton, Newcastle upon Tyne NE12 9PN, Douglas Turkington
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Editor Time to clarify the nature of Capacity to Consent? Case law does not clearly distinguish intellectual and emotional capacity. Sensky1 sensitively discussed the dilemma of treatment withdrawal but missed an opportunity to highlight the importance of emotional capacity in decision-making. The question is what constitutes a mental disorder that impairs capacity, making someone unable to understand emotionally (as opposed to intellectually) the personal relevance of information and weigh it up. The judge’s perspective cited by Sensky is this: refusal by a mentally competent person to consent is an absolute right even if the reason for this is irrational. However an irrational reason for refusal of treatment suggests that the ability to weigh evidence is impaired. Understanding of mental disorders has developed so that we now recognise value systems to lie at their heart. For example an individual may become depressed after redundancy if they believe that their only value as a person is determined by their productivity. That their depression is in keeping with their value system does not preclude our attempts to prevent suicide and help them to overcome the depression. Such is enshrined in mental health law but it also influences the determination of capacity in common law. In a case heard by of the Court of Appeal2, a needle phobia was considered enough to render an individual incapable of valid consent. In this case, it is likely that the patient held a value that the experience of being injected by needles was unbearable. This patient would not be considered mentally disordered by individuals encountering her, yet in the context of impending surgery she became so severely anxious that she was considered to be incapable of consenting to the procedure. In the case reported by Sensky1 she would similarly not be considered mentally disordered until faced with a situation that activated her value system. Her value, “continuing life (in this manner) … (is worth) less than death” has impaired her ability to weigh the objective (intellectual) evidence. She thereby expressed hopelessness of living a life that she would consider worthwhile. An alternative would be to work with her to create a value system that would enable her to consider her life worthwhile. The role of emotionally-held values and beliefs in influencing an individual’s capacity to consent should be debated directly. At a time when a new Mental Health Act is being drafted, this issue could helpfully be resolved in that process. Other patients, who are currently deemed to have capacity (presumably intellectual) despite psychosis or overpowering adjustment-related affects, deserve to have their right to life protected in keeping with the Human Rights Act3. 1 Sensky, T. Withdrawal of life sustaining treatment. BMJ 2002; 325: 175-176. 2 Re MB (Medical Treatment). 1997. 2 F.L.R. 426 3 HMSO. The Human Rights Act. 1998 |
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