#1699 - Applying The Law To Difficult Cases - Medical Law

Applying the Law to difficult cases

The administration of pain-relieving drugs

• The general principles

  • If D gives P drugs knowing and in order to kill P, and death results, then this can be murder

    • Bland

      • Lord Goff:

        • It is not lawful for a doctor to administer a drug to his patient to bring about his death

          • Even if that course of treatment is prompted by a humanitarian desire to end suffering, however great that might be.

  • How about where D gives P drugs knowing they will likely kill P, but with the intention to relieve P’s pain, not to kill

    • Bland

      • Lord Goff

        • It is an established rule that a doctor may, when caring a for P who is dying from a terminal disease

          • lawfully administer painkilling drugs despite that fact that he knows the incidental effect of that application will be to abbreviate the patient’s life

        • Such a decision may properly be made as part of the care of the living patient and his best interests

          • And on this basis, the treatment is lawful.

    • R v Cox: D injected a lethal amount of potassium chloride in order to kill P who was suffering from intense pain. P had repeatedly asked D to kill him, and eventually D relented. The drug itself only shortened P’s life, and otherwise had no analgesic value so could not be classed as pain relief.

      • Foster: He was only charged with attempted murder, which was a tactical move by the prosecution,

        • as juries will very often acquit in full murder prosecutions owing to the mandatory life sentence.

Persistent vegetative state

• Definition

  • PVS patients cannot be kept alive unaided and without the use of a life support machine

    • However, they are not always completely immobile, and can retain some auditory or visual stimuli – although the amount depends on the degree suffered

  • They cannot eat or drink unaided, and while it can never be certain that the condition is irrecoverable

    • Most will not recover and only stay alive until some natural disease gets them, or treatment is withdrawn.

• The Law

  • Doctors must comply with any advance directives issued by the patient which state he does not want any life-sustaining treatment

    • Or else the test is whether it is in the best interests of P to require the treatment to be offered

    • Judicial permission is normally needed before hydration and nutrition are withdrawn from a patient in a PVS.

  • Airedale NHS Trust v Bland [1993]: B crushed on terraces of Hillsborough, in a persistent vegetative state. He went on for a number of years, and his family wished to withdraw treatment believing B had died on the Terraces.

  • An NHS Trust v J

    • Sir Mark Potter:

      • Although P was in PVS, a new drug offers a slim chance of recovery

        • Therefore, P should be treated with this drug first before the withdrawal of treatment is permitted

          • Even though both the family and doctors support a withdrawal of treatment.

• Can this law apply beyond PVS cases?

  • BMA Guidance 2007: Withdrawing Life-Prolonging Medical Treatment:

    • Diagnostic guidelines are not statutory provisions, and a precise label may not be important

      • The court’s concern is whether there is any awareness whatsoever or any possibility of change

      • There has as yet been no decided case dealing the discontinuance of artificial feeding and hydration for an adult patient with any (however minimal) self awareness.

Severely disabled patients

• Adults

  • Arguably the situation is worse for those not in PVS, but having some awareness of their condition

  • The MCA 2005 governs these situations, and the key question, absence any advance directives and capacity to decide/communicate = what is in their best interests?

    • Killing a person not permitted

    • How about withdrawing treatment?

      • Re R (Adult: Mental Treatment)

        • Taylor J

          • The correct approach is to judge the quality of life P would have to endure if given treatment

            • And decide whether in all the circumstance such a life would be so afflicted as to be intolerable.

      • Foster: By forcing clinicians to prove that life would otherwise be intolerable

        • There is a presumption in favour of life if there is any confusion as to this matter.

        • This does place a large burden on clinicians, and it weighs heavily in favour of life

          • However, for clinicians, this presumption may be useful as it provides a guidance through the best interests test.

  • The Balance sheet

    • In most of these cases, the Judge send counsel away in order to create a balance sheet

      • Giving all the reasons to live on one side

      • And all the reasons to allow death on the other

    • Each reason is then given the appropriate weighting and then all weighed against each other

      • If there is any doubt between life and death, then the Re R presumption to maintain life is followed

• Children

  • Re J (A Minor) (Wardship: Medical Treatment)

    • Taylor LJ

      • I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment

        • And decide whether in all the circumstances such a life would be so afflicted as to be intolerable for the child

      • I say “to the child” as the test is not whether life would be intolerable to the defender

        • The test must be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable or not

  • Where the doctors wish to stop treatment but the parents do not

    • Herring: courts very reluctant to overrule doctor assessments of best interests

      • Re J – court will never order a doctor to act in a way which they think is inappropriate

  • Where the parents wish to stop treatment, but the doctors do not

    • Re T

      • Butler Sloss LJ

        • The welfare of this child...