Compensation paid by hospital for breach of advance decision

Prior to suffering a stroke, Brenda Grant had drawn up an advance decision (otherwise known as a ‘living will’) refusing life sustaining treatment in specified circumstances should she at some point in the future lose capacity to make decisions about her medical treatment. It was said that she feared degradation and indignity more than death having seen her own mother lose independence through dementia. Mrs Grant did not notify her family about the existence of her advanced decision but her GP was aware and her local hospital, George Eliot, was provided with a copy.

Following a catastrophic stroke in 2012, which left her unable to walk, talk or swallow, Mrs Grant was admitted to George Eliot Hospital in Nuneaton. A copy of her advance decision was contained within her hospital records but over the subsequent months it was misplaced and was consequently overlooked. After three months in hospital, Mrs Grant was fitted with a PEG to enable her to be fed directly into her stomach, before being discharged to a nursing home.

Mrs Grant’s family were unaware of the advance decision until they were alerted by Mrs Grant’s GP shortly before her readmission to hospital. The family then requested that the hospital respect Mrs Grant’s advance decision and withdraw the treatment which was artificially sustaining her life. The hospital agreed and treatment was withdrawn and Mrs Grant’s died on 4 August 2014 aged 81. By this time, Mrs Grant had been kept alive by artificial nutrition and hydration for nearly 22 months contrary to the wishes set out in her advance decision.

The family brought a claim for damages against George Eliot Hospital NHS Trust arising from their failure to follow Mrs Grant’s advance decision. The Trust issued an apology and damages were agreed in an out-of-court settlement of £45,000. Apparently, the advance decision was contained within an old volume of medical records and had therefore gone unnoticed by medical staff. Following Mrs Grant’s death the Trust have set up a new system for recording advanced decisions on the front page of patient notes.

This is thought to be the first case where a claim for negligence has been brought against medical professionals for failing to follow an advance decision.

Comment

This case highlights the importance of NHS Trusts and other health and social care providers ensuring that advance decisions are properly documented in patient records so that they are readily brought to the attention of treating health professionals. It also highlights the importance of a person who has made an advance decision bringing it to the attention of family members. Had Mrs Grant’s family been aware of the existence of the advance decision they could have ensured that the hospital acted in accordance with their mothers wishes from the outset.

What is an advance decision to refuse medical treatment?

• An advance decision is often referred to as ‘living will’.
• An advance decision enables an adult, while they still have mental capacity, to refuse specified medical treatment at a time in the future when they may lack capacity to decide and/or are unable to communicate their wishes.
• An advance decision will only take effect when the person who made it has lost capacity to consent to or refuse the specified medical treatment.
• An advance decision can be verbal or in writing. The latter is always advisable in order to avoid any future uncertainty over its validity. An advance decision to refuse life-sustaining treatment must however be in writing, signed and witnessed and must clearly state that the decision is to apply even if life is at risk.
• An advance decision can be used to refuse life-sustaining treatment including cardiopulmonary resuscitation (CPR), ventilation, antibiotics for life-threatening infection or artificial nutrition and hydration.
• A valid and applicable advance decision to refuse treatment has the same legal status as a decision to refuse treatment made by a person with capacity at the time of that treatment. It is legally binding and must be respected.
• Healthcare professionals must follow an advance decision if they are satisfied that it is exists, is valid and is applicable to the patient’s circumstances. Failure to follow an advance decision in this situation could lead to a claim for damages for battery or a criminal charge of assault.
• Healthcare professionals will be protected from liability, if prior to treating the patient, they take all practical and appropriate steps to find out if the person has made an advance decision, and do not know or are not satisfied that a valid and applicable advance decision exists, and they proceed to treat.
• Healthcare professionals should not delay emergency treatment to look for an advance decision if there is no clear indication that one exists. But, if it is clear that a person has made an advance decision that is likely to be relevant, healthcare professional should assess its validity and applicability as soon as possible – sometimes the urgency of treatment decisions will make this difficult.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk