Life’s final months

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.

Few dispute that life is cherished. But it is unusual to encounter a judgment identifying the final months of life as particularly treasured. In this case, that notion supported an interesting decision.

CD was sixty-six, with end-stage renal disease, alongside his diabetes, ischaemic heart disease, recurrent strokes, and vascular dementia. For twice-weekly haemodialysis he was brought to hospital from his nursing home. Family members attended each dialysis session to provide him with reassurance and reduce his agitation. They regularly visit his care home with home-cooked food. Following his strokes, CD is no longer able to speak English but continues to converse in the language and dialect he learnt as a child. His family noted his continuing enjoyment of life; smiling at his daughter, singing frequently.

CD’s venous haemodialysis catheter is tunnelled, and he usually required a general anaesthetic for its insertion. He had pulled the line out several times. Three weeks prior to the hearing, the Trust had concluded that further insertions of tunnelled lines were no longer in his interest; the clinical conclusion was that he lacked capacity to make decisions in relation to his care and medical treatment. One aspect of the application to court was to seek a declaration that CD lacked mental capacity in this context. This declaration was not opposed either by the Official Solicitor, acting on CD’s behalf; nor by his family.

The second limb of the Trust’s application asked for the judge to decide that (i) it was not in CD’s best interests to have further haemodialysis and (ii) that it was in his interests to receive palliative care and treatment.

The judge reminded himself that a ‘…profound respect for the sanctity of human life is embedded in our law and our moral philosophy…nevertheless, this is… not an absolute’. Although the family agreed with the hospital’s conclusions on the medical evidence, they strongly disagreed with the conclusions on where CD’s best interests lay. The consultant nephrologist looking after CD acknowledged that his colleagues considered restoring CD’s haemodialysis catheter unethical. He ‘…personally did not believe it to be in CD’s best interest, (but) he would carry it out if the Court declared that the procedure was in CD’s interests’.

The evidence provided by the hospital was that haemodialysis was preserving CD’s life; if stopped, death would be expected within 2 weeks. If dialysis were continued, on the basis of co-morbidities, the prognosis for his life expectancy was 3-6 months.

These prognoses were considered by the Court to be of a ‘material difference.’ The burdens of CD’s continued life, both related to twice weekly haemodialysis and his other co-morbidities were considered, but then contrasted with CD’s ‘joy in the company of his family…. enjoyment of Bangladeshi food…singing and smiling’. The ‘very real risk that the proposed catheter insertion would be rendered ineffective if he pulled it out again was considered highly relevant’…and that the steps to prevent this from happening, such as mittens and strapping would be an additional burden that CD would have to endure.

But in conclusion, the judge did not accept that continued haemodialysis through a new tunnelled catheter was contrary to CD’s best interests, despite being invited to do so by the hospital. The significant risks did ’…not outweigh the benefits to CD of preserving his life…a life that brings him times of considerable pleasure….Preservation of life may only be for a few months at most but at the end of a life, that period of time can be particularly precious.

Re CD (Treatment: Haemodialysis) [2024] EWCOP 55

Mr Robert Wheeler
Department of clinical law
November 2024