GMC AND BMA GUIDANCE ON WITHHOLDING AND WITHDRAWING LIFE PROLONGING TREATMENT

 

O P I N I O N

BACKGROUND

1.    I am instructed to advise on behalf of ALERT, an anti-euthanasia society in respect of the legality in terms of the European Convention on Human Rights of certain parts of GMC  and BMA Guidance on withholding and withdrawing life prolonging medical treatment.

2.    The aspects of the Guidance on which I am asked to advise is as follows:

(a)   the role of the doctor in making a clinical decision to withdraw life prolonging medical treatment.

(b)  The guidance for making decisions to withdraw such treatment.

(c)   Protection under the Guidance for incapacitated persons.

ROLE OF THE DOCTOR IN MAKING RELEVANT CLINICAL DECISIONS

3.    I am concerned that the GMC Guidance on these matters is seriously incomplete. The relevant paragraphs – taken at face value – seem to be paragraphs 32 and the paragraphs there referred to being paragraphs 41-48 and 53-57. Paragraph 32 provides (materially) thus:

‘If you are the consultant or general practitioner in charge of a patient’s care, it is your responsibility to make the decision about whether to withhold or withdraw a life-prolonging treatment, taking account of the views of the patient or those close to the patients as set out in paragraphs 41-48 and 53-57...’

4.    Read in isolation this paragraph suggests that a clinician holds ultimate power of life and death over even a patient possessing full legal capacity to make decisions for himself/herself. This is, of course, entirely wrong and is, effectively, disavowed in certain other paragraphs referred to in paragraph 32 (see, especially, paras 41-42). The real difficulty with the GMC Guidance in respect of persons possessing legal capacity to make decisions for themselves is that paragraph 32 does not distinguish between those persons (whose treatment decisions must be respected) and those persons lacking legal capacity to make decisions for themselves where slightly different considerations may apply (see below). In the case of persons with capacity their views are not (as paragraph 32 on its fact suggests) merely to be taken into account with the doctor empowered to make the final decision.

5.    In respect of persons lacking legal capacity to make treatment decisions for themselves this addressed in paras 53-57 of the GMC Guidance. This Guidance is also incomplete in that no guidance is given as to how the question of incapacity is determined. Reference is made to advance directives but no guidance is given as to the procedure to be adopted in order to ascertain whether the (formerly competent) patient has changed his or her mind in the meantime. There is no guidance whatever as to the Convention implications (and case-law) of or in respect of (especially) Articles 6 (access to a court for the determination of civil rights and obligations), 2 (the right to life, 3 (the right to freedom from degrading treatment), 8 (the right to respect for private and family life) or 14 (right to non discrimination in the enjoyment of Convention rights).

6.    Each of these matters is likely to be crucially important before Convention compliant decisions may be taken which have the effect of terminating a patient’s life.

7.    Although there is insufficient time for me to explore these aspects in detail I should make reference to an earlier Opinion that I have provided to ALERT on the legality of certain provisions of the Mental Incapacity Bill with the European Convention on Human Rights (‘ECHR’). In particular (developed in more detail in that Opinion):

(a)    Whilst there is not an absolute obligation under Article 2 to give life sustaining treatment if such treatment would be futile, there is such an obligation where – according to responsible medical opinion – such treatment is in the best interests of the patient (see para 52(a) of the Opinion and the decision of the Court of Appeal in NHS Trust A V. M, NHS Trust B v. H [2001] 2 W.L.R. 942). Ex hypothesi, therefore, the clinical decision of a doctor that went against a body of responsible medical opinion might well – even on the court of Appeal’s analysis – be contrary to Article 2. One finds no suggestion of this in paragraph 32 (or anywhere else) in the GMC Guidance.(1)

(b)   The right to protection of life under Article 2 is a ‘civil right’ under Article 6 of the ECHR. This protection is required to be both practical and effective. Yet the GMC Guidance makes no reference to the importance of the Court’s role in determining such important decisions. It implies, rather, that this is entirely a clinical decision for the doctor. The obvious danger is that access to the Court is, thereby, denied. Neither the patient nor the patient’s carers may know of their rights to go to court to challenge a clinical decision on best interests and unless the clinicians (through the hospital managers) seek declaratory relief so as to ensure that the patient’s Article 6 rights are respected there is, to my mind, a real danger of Convention violation.

(c)    For the same reason there is the correlative danger of a breach of Article 8 ECHR.

(d)   Finally, the GMC Guidance fails adequately to address the problems posed by advance directives. There are no obvious safeguards set out in the Guidance (see paras 71 et seq of the Opinion) for protecting Article 2 rights by requiring clinicians to identify clearly whether the person making an advance directive possessed the requisite capacity at the time and has not changed his or her mind since.

8.     It has to be said that the BMA Guidance is a considerable improvement on that of the GMC in all respects. Despite this, however, it contains some of the same relevant omissions. In particular, as demonstrated below, the BMA Guidance fails adequately, in my view, to ensure that incapacitated patients are provided with practical and effective rights of access to a Court under Articles 6 and 14 ECHR.

GUIDANCE OF WITHDRAWAL OF TREATMENT

9.     The relevant paragraphs of the GMC Guidance on which this Opinion is sought are paragraphs 38 and 81.

10.   Paragraph 38 provides materially as follows:

‘Always consult a clinician with relevant experience ... in cases where ... you are considering withholding or withdrawing artificial nutrition or hydration from a patient who is not imminently dying, although in a very serious condition, and whose views cannot be determined (see paragraph 81 below).’

11.  Paragraph 81 provides that:

‘Where death is not imminent, it usually will be appropriate to provide artificial nutrition or hydration. However, circumstances may arise where you judge that a patient’s condition is so severe, and the prognosis so poor that providing artificial nutrition or hydration may cause suffering, or be too burdensome in relation to the possible benefits.’

12.  So, the GMC Guidance envisages situations in which although a patient’s death is not imminent life prolonging treatment my be withdrawn. There is no suggestion in the guidance that this may violate Articles 6, 2, 3 or 8 (see above). Further, even the existing domestic ECHR case-law does not go so far. The Guidance is, therefore, materially misleading. In particular, NHS Trust A v. M, NHS Trust B v. H. (a case relied on by the GMC) does not seem to me to go as far as this. For example, the fact that dehydration may cause suffering does not necessarily mean that treatment is futile. Yet the existence of suffering seems to be a potential trigger for withdrawal of treatment.

13.  I consider that the provision of hydration in such cases is likely to fall within the scope of the State’s positive obligations under Article 2 ECHR. Failure even to advise clinicians of the important of compliance with the principles set out in existing case law and with the separate obligations under Articles 6, 3 and 8 ECHR renders, in my opinion, this Guidance – in this respect – unlawful.

14.  Again, the BMA Guidance is a significant improvement on the GMC Guidance. Note, for example, paragraph 17.4 of that Guidance which is ostensibly in direct conflict with paragraphs 38 and 81 of the GMC Guidance providing (materially) as it does that:

‘Except where the patient’s imminent death is inevitable, a decision to withhold or withdraw all treatment is likely to be inappropriate and potentially unlawful ...’.

PROTECTION OF THE INCAPACITATED

15.  I have already outlined those parts of the GMC Guidance on which my views are sought which provide wholly inadequate protection (in Convention terms) for persons without capacity to make decisions for themselves.

16.  In summary:

(a)   There is no reference to any Convention principles as espoused in the case-law.

(b)   Given the existence of those principles and that case-law much of the GMC Guidance is seriously misleading in terms of the role of the clinician in making life or death decisions and in terms of the guidance as to when such decisions can be made. In particular, the notion that in cases where death is not imminent treatment can be withdrawn because it may produce suffering is entirely in conflict with the likely content of the State’s positive obligations to ensure life under Article 2 ECHR and the right to be protected from degrading treatment under Article 3 ECHR.

(c)   Further, the clinician is not alerted to the importance of ensuring adequate protection in terms of scrutiny or advance directives or allowing recourse to the Courts when such decisions are made so as to ensure compliance with (particularly) Articles 6 and 8 ECHR.

17.  There is one significant further respect in which the GMC (and BMA) Guidance falls short of ensuring ECHR safeguards. That is in respect of the current ‘twin-track’ approach to PVS and non PVS treatment.

18.  As the BMA Guidance recognises at paragraph 21.4 the Courts have not (yet) specified that declarations should be sought from the court before withholding or withdrawing artificial nutrition and hydration from non PVS patients. this is an important omission but the BMA Guidance does not obviously suggest that to ensure practical and effective compliance with Article 6 ECHR declarations should be sought in such cases. The GMC Guidance is effectively silent on the distinction (see paras 82-83) and the solicitors acting for the GMC apparently contend that because no other Convention rights are engaged Article 14 (non discrimination in the enjoyment of Convention rights) cannot be relevant either (see letter to those instructing me of November 14 2002).

19.  This approach is wrong. If and to the extent that it has been inspired by the House of Lords’ ruling in Airedale NHS Trust v. Bland [1993] 1 All ER 821 it is arguably a mis-reading of that authority. But, in any event, Bland (a pre HRA case) now falls to be revisited and interpreted in accordance with the requirements of the HRA. In my opinion it is abundantly clear that the withdrawal of fluids from a non-dying patient is at least capable of violating Article 2 ECHR. It is certainly capable of violating Article 8 (and possibly Article 3). It is, further, a decision that constitutes the determination of a civil right and a patient is, therefore, entitled to adjudication by an independent and impartial Court.

20.  I have already emphasised above the pivotal importance of court supervision as a necessary means of practical and effective compliance with Article 6 ECHR in respect of a range of matters, most notably in relation to significant treatment decisions and decisions contingent on the assumption of a valid advance directive (see above). In neither set of guidance is this problem properly or fully addressed beyond lamentation on the part of the BMA that doctors are, currently, left in a state of uncertainty.

21.  BMA and GMC Guidance is fundamentally important as a means of ensuring State compliance with the ECHR. Failure to issue lawful Guidance is susceptible to judicial review. The BMA/GMC are ‘public authorities’ within the meaning of the Human Rights Act 1998 (‘HRA’)s. 6 and under an obligation by virtue of s.6(1) to ensure the fulfilment of positive obligations (as well as negative restraints) in respect of ‘Convention rights’ (as defined). So the issuing of Guidance which is likely to result in practical and effective Convention protection not being provided may be challenged under HRA s.7.

22.  Guidance that perpetuates a legal distinction between the requirement of a Court hearing for PVS but not for non PVS patients is – in my judgment – in necessary breach of Article 14 because it effects a discrimination in the enjoyment of Convention rights (i.e. the rights under Articles 2, 3 and 8 ECHR) between PVS and non PVS patients. It should be emphasised that for Article 14 to apply it is not necessary for there to be established a specific breach of any other ECHR provision – it is sufficient if the context is one in which those other Convention provisions are capable of applying (see, eg, Van De Mussele v. Belgium (1983) 6 EHRR 163, para 43).

23.  For al these reasons I conclude and advise that – in the respects in which I have been asked to advise – the GMC and BMA Guidance are unlawful. However, the scale of Convention compliance of the BMA Guidance is considerably higher than in the case of the GMC Guidance.

                                                                                              RICHARD GORDON QC

 

                                                                                              Brick Court Chambers,

                                                                                              7-8 Essex Street,

                                                                                              London WC2

 

                                                                                              March 10 2003

 

(1) Contrast, in this respect, para 19.4 of the BMA Guidance which recognises the importance of resort to a responsible body of medical opinion.