Legal Update: BMA/RCP/GMC publish interim guidance on the withdrawal of clinically assisted nutrition and hydration (CANH)


The General Medical Council, Royal College of Physicians and the British Medical Association have jointly published interim guidance on decisions to withdraw CANH from patients in permanent vegetative state (PVS) or minimally conscious state (MCS) following sudden-onset profound brain injury. This is intended as supplementary guidance in response to recent developments in the law in England and Wales.

This link will take you to the new guidance.

This interim guidance has been published in response to a series of court judgments this year, the impact of which is that it is no longer necessary for clinicians to seek court approval before CANH can be lawfully withdrawn from patients in PVS or MCS providing existing professional clinical guidance has been followed and all relevant parties are in agreement that it is not in the patient’s best interests to continue CANH. Please refer to our legal update dated 9th October 2017 regarding the case of M v A Hospital.

The interim guidance is intended to remain in place until new, more comprehensive, guidance is published by the BMA in May 2018.

A summary of the supplementary guidance is as follows:-

  1. Clinicians must establish whether there actually needs to be a best interests decision:-
  2. Is there a valid and applicable advance decision to refuse treatment covering CANH? If so, a patient’s decision must be respected.
  3. Has the patient appointed a health and welfare attorney under an LPA enabling the attorney to consent to or refuse life-sustaining treatment? If so the attorney’s decision must be followed unless overruled by the court.
  4. Where there is disagreement about whether withdrawal of CANH is in a patient’s best interests or if the decision is finely balanced, an application should be made to the court for a determination.

On the basis of current law, in all other cases the clinical team can lawfully withdraw (or not provide) CANH where after proper consultation it is determined that it is not in the patient’s best interests.

  1. Proper consultation requires the following steps to be taken:-
  2. Ensure that RCP guidance regarding assessment of responsiveness, awareness , prognosis etc is followed.
  3. Consult and follow MCA code of practice when assessing best interests.
  4. Convene formal best interests meetings with interested parties to share clinical information and to elicit information about the patient’s values wishes feelings and beliefs in order to decide whether continuation of CANH is in their best interests.
  5. Attempt to identify and consult with all relevant people (not just ‘next of kin’) – this might include other family members, friends, colleagues & care staff who know the patient well.
  6. Appoint an IMCA if the patient has no known family (or anyone else) to represent their views or if clinicians feel that the family are not properly able to represent the patient’s views.
  7. Find out as much as possible about the patient’s values, wishes and feelings and beliefs both generally and as they relate to their current situation.
  8. Seek a second clinical opinion from a consultant with experience in prolonged disorders of consciousness who has not been involved in the patient’s care (and ideally external to the NHS Trust).
  9. Keep detailed records of all discussions, meetings, advice sought, and clinical assessments undertaken.
  10. If all parties agree that it is in the patient’s best interest to continue with CANH, this decision should be subject to regular review in line with RCP guidelines.
  11. If all parties agree that it is not in the patient’s best interest to continue with CANH, it should be discontinued as soon as is reasonably practicable in accordance with a detailed plan for withdrawal and end-of-life care. A palliative care plan should be implemented in accordance with RCP guidance.
  12. The death certificate following withdrawal of CANH should give the original brain injury as the primary cause of death. Depending on the cause of the brain injury, referral to the coroner may or may not be required.

Comment 

This interim guidance only covers withdrawal of CANH from patients in PVS or MCS. The BMA has promised more in-depth guidance next spring on good clinical and professional practice for making decisions about CANH generally.

The interim guidance emphasises the necessity for proper consultation and robust decision-making. It recognises the importance of establishing and considering the patient’s wishes, feelings, beliefs and values when making a best interests decision about withdrawing CANH and the need to follow relevant professional guidance when carrying out clinical assessments.

Where, following comprehensive clinical assessment and a robust decision-making process, there is agreement between clinicians, family and other interested parties that withdrawal (or withholding) of CANH is in the patient’s best interests, then as the law as presently stands, it is lawful for clinicians to withdraw or withhold that CANH without the need  for a court declaration.

Where, however, there is disagreement either about the patient’s prognosis, or about whether it is in their best interests withdraw/withhold CANH, or where the decision is finely balanced, then the law still requires that an application is made to the Court of Protection for a declaration as to whether the continuance of CANH is in the patient’s best interests.

This interim guidance is based on the law as it currently stands. If, as is anticipated, the Supreme Court is asked to rule on whether withdrawal of CANH from patients in PVS/MCS requires court permission then the law may change. Watch this space.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

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


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