Medico-legal: Decisions in end of life care

Medical Protection Society medico-legal adviser Dr Jo Galvin outlines the key steps to take.

Sensitive communication should take place between doctor and patient (iStock)
Sensitive communication should take place between doctor and patient (iStock)

Scenarios involving end of life care are challenging and raise a number of questions which require careful consideration.

The GMC guidance, Treatment and care towards the end of life: good practice in decision making, provides detailed advice about patients who are likely to die in the next 12 months, or whose death is imminent (expected within the next few hours or days).

Mental capacity

The most fundamental question is the patient’s mental capacity. Legally, the presumption is that patients aged 16 years and over have capacity.

If there is any concern that the patient lacks capacity, an assessment must be made.

Capacity is specific to particular decision, so the assessment should be focused on the decisions which need to be made at the time and should take into account the patient’s wishes in respect of their care, the involvement of those close to them and their views on CPR. If the patient has the capacity to make these decisions, it is important and in accordance with the GMC guidance to:

  • Assess the medical situation with the patient, taking into account their history, views, experience and knowledge 
  • When discussing treatment and care options, allow the patient to consider the risks and benefits and come to a final decision
  • Recommend an option but not force this recommendation on the patient  
  • Should they ask for treatment that would not be clinically appropriate, discuss this with them and explore their reasons. You do not have to provide inappropriate treatment

If the patient lacks capacity, it is important to:

  • Be clear about what decisions have to be made
  • Check whether there are legally binding advance decisions to refuse treatment, or whether anybody holds legal authority to make decisions on the patient’s behalf. A lasting power of attorney for property and affairs does not confer any powers to make decisions about a patient’s care and treatment
  • Take responsibility for deciding which treatment would be in the patient’s best interests. If no legal proxy exists and you are the doctor with responsibility for the patient’s care, you must consult those close to the patient and members of the healthcare team to help you to make your decisions about the patient’s care
  • Make sure all of your decisions, and the reasoning used to reach them, are thoroughly documented in the patient’s medical records

Decisions about CPR

Decisions about the appropriateness of CPR are based on the circumstances of individual cases.

Making and recording such decisions may be useful in ensuring that the patient can die in a peaceful and dignified way.

Discussion of such decisions is a sensitive and emotive matter. However, this is not a reason to avoid discussions with the patient and/or those close to them.

The recent judgment in the case of Tracey versus Cambridge University Hospitals NHS Foundation Trust emphasised the importance of discussing such matters with the patient before making a final decision, as long as the patient is willing and able to engage in discussion.

There is nothing in the judgment that requires a doctor to force a discussion on a patient who is not
willing to engage in it.

The judgment confirmed that Article 8 of the Human Rights Act (respect for private and family
life) is engaged whenever a ‘Do not attempt CPR’ (DNACPR) order is contemplated.

The following points are therefore important:

  • Clinicians should discuss DNACPR with patients before making a final decision
  • Patients should be informed of the final decision and an offer made of a second opinion if the patient disagrees with the decision that has been made
  • Subject to the patient’s agreement, family members should be informed and the matter should be discussed with them
  • If the patient lacks the capacity to be involved, the decision is based on their best interests and this involves consulting with those close to the patient. If there is nobody with whom you can consult, an independent mental capacity advocate should be appointed
  • Discussions and decisions should be clearly and comprehensively recorded in the medical records 

End of life care

If it is decided that the patient requires end of life care, it is important to be aware that the Liverpool Care Pathway is no longer used in England.

Developed in the late 1990s to provide uniform care for those approaching the end of life, it has more recently been the subject of concerns and criticism. This led to an independent review, published in 2013.

Following the review, the Leadership Alliance for Care of Dying People identified five priorities for care
of the dying. Its purpose is to provide a more individualised approach, based on the patient’s needs and wishes. The priorities include:

  • The possibility that a person may die within the next few days or hours is recognised and communicated clearly. Decisions made and actions taken in accordance with the person’s needs and wishes should be regularly reviewed and decisions revised accordingly
  • Sensitive communication takes place between staff and the dying person, and those identified as important to them 
  • The dying person and those identified as important to them are involved in decisions about treatment and care to the extent that the dying person wants 
  • The need for families and others identified as important to the dying person are actively explored, respected and met as far as possible 
  • An individual care plan, which includes food and drink, symptom control and psychological, social and spiritual support, is agreed, co-ordinated and delivered with compassion

The priorities are based on the principle that individual care must be provided according to the wishes and needs of the person and each of the priorities is equally important.

  • Dr Galvin is a medico-legal adviser at the Medical Protection Society

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