Articulating best interests

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

We are all well aware that adults with capacity make their own treatment decisions. There is no call to determine the best interests of such patients, since they can (by definition) decide these matters for themselves. Accordingly, their ‘best interests’ are never explored.

Naturally, clinicians will on occasion disagree with a patient’s decision, and they are at liberty to try and persuade the patient to change her mind…but the patient with capacity has the last word. This is starkly exemplified by the adult with capacity who chooses to refuse the blood that would otherwise have saved his life. Or the woman with capacity who refuses the caesarean section that alone would allow her child to be born alive.

But for those who lack capacity to make decisions relating to their treatment, clinicians have become accustomed to acting in the patient’s best interests. Meetings devoted to this subject are a ubiquitous daily occurrence in hospitals across the country. Again, we are all well aware of the general principles standing behind ‘best interests’; that the incapacitated patient’s welfare must be scrutinised in its widest terms not simply in the sense of medical but also social and psychological interests. This will involve consideration of the proposed medical treatment, the prospects of success, and the likely outcome…. That is all very well; how should we achieve this?

A case decided last month provided us with clear specific guidance. It concerned Mrs P, who was 72 when she suffered the intracranial bleed that left her in a minimally conscious state. It was agreed that there was no prospect of her regaining the capacity to make decisions relating to her health; it was speculated that her potential life expectancy was in the region of three to five years. Nonetheless, she was otherwise relatively healthy and the hospital wished to insert a gastrostomy for hydration and nourishment. She would not tolerate a nasogastric tube, the presence (and frequent replacement) of which distressed her. Mrs P’s daughters disagreed with this proposal, explaining that their mother had previously expressed a wish not to be kept alive if severely handicapped, especially if her mental function was severely affected.

Because of this disagreement, the court was approached, the hospital seeking a declaration that the proposed treatment was lawful. The judgement was centred on the notion that when considering best interests, decision-makers must try and put themselves in the place of the individual patient and ask what her attitude to the proposed treatment is likely to be. And they must consult those who befriend or look after the patient, in particular to obtain a view on what her attitude to the treatment might be. Factors that should be taken into account would include the views of those who had a close relationship with the patient when she had capacity, and the impact of the patient’s fate on those who were closest to her.

The court nevertheless made it crystal clear that what the patient would have done in the circumstances (if their capacity had been preserved) would not automatically be regarded as to be in her best interests. Whilst courts (and clinical decision-makers) will strive hard to recognise and comply with what the patient is likely to have wanted, acting in her best interests remains the paramount objective.

As an example, if a patient’s history reveals a series of damaging lifestyle decisions; and it is concluded that she would, if she could, continue this lifestyle, the decision-maker would likely conclude that allowing the patient to sustain further damage would be contrary to her best interests.

Equally, in a patient who would have wished to persist with hourly cardiopulmonary resuscitation despite being told correctly that there was no prospect of a sustainable cardiac rhythm, those subsequently taking decisions on his behalf might well conclude that the burden of pain and loss of dignity outweighed the benefit, and that contrary to his capacitious wish, his best interests lay in cessation of resuscitation.

It was therefore by no means clear at the start of the case that the court would regard Mrs P’s expressed wish for non-treatment as compatible with her best interests.

Hearing all the evidence, the judge concluded that for Mrs P, her high level of dependency on clinical services combined with her minimal awareness would be a ‘travesty of life; and that she was entitled to her view. The hearing (and the inquiries necessitated by it) allowed her voice to be heard. The hospital’s application was refused.

Robert Wheeler
Department of clinical law, November 2017