Hillsborough part 2: advance decisions and futile treatment Richard Griffith

Key words: Best interests ■ Self-determination ■ Advance decisions to refuse treatment ■ Futile treatment

T

he 25th anniversary of the Hillsborough football stadium disaster calls to mind the 96 people who died. One of those victims, Tony Bland, did not die that day. Instead he suffered prolonged hypoxia from the crushing caused by the fatal crowd surge leaving him in a persistent vegetative state. Some 3 years after the incident, with all hope of recovery gone, his care team asked the courts for a declaration that it would be lawful to withdraw his artificial nutrition and hydration that would lead to his death. The case was eventually heard by the judicial committee of the House of Lords in Airedale NHS Trust v Bland [1993] who took the opportunity to look more widely at the principles of consent, best interests and the futility of treatment. Their opinions in the case left a lasting legacy that continues to influence nursing practice some 20 years on with much of the ruling now codified in the Mental Capacity Act 2005 and the approach to lawfully withdrawing futile treatment confirmed recently by the United Kingdom Supreme Court in Aintree University Hospitals Foundation Trust v James [2013].

Richard Griffith is Lecturer in Health Law, College of Human and Health Sciences, Swansea University, Wales

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Consent and self-determination The House of Lords in Bland emphasised the importance of consent and a patient’s right to make care and treatment decisions. Lord Mustill (at 891) held that: If the patient is capable of making a decision on whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. There is no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue. The House of Lords in Bland held that capable adult patients have the right to refuse even life-sustaining treatment and nurses are bound by that decision even if they consider it to be unwise. The issue of a best interest only arises where a person lacks capacity to make the decision. While the sanctity of life is a key ethical principle in nursing it must yield to the principle of self-determination where a person refuses treatment: The principle of self-determination requires that respect must be given to the wishes of the patient, so that

To this extent, the principle of the sanctity of human life must yield to the principle of selfdetermination. (Airedale NHS Trust v Bland [1993] (Lord Goff)) These legal principles have now been codified as part of the statutory principles underpinning the Mental Capacity Act 2005.

Advance decisions Airedale NHS Trust v Bland [1993] also gave the opportunity for the House of Lords to give approval to advance decisions or what were then referred to as ‘living wills’. Their Lordships were clear that had Tony Bland made his wishes known in advance, there would have been no need to come to court to decide on future treatment. Lord Keith (at 857) held that self-determination: Extends to the situation where the person gives clear instructions in advance that he is not to be given medical care, including artificial feeding, designed to keep him alive. Lord Goff (at 864) also held that the principle of self-determination applies where: The patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it. This common law approval of advance decisions refusing treatment has also now

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Abstract

In the second article on the impact of the Hillsborough football stadium disaster on healthcare law, Richard Griffith discusses the case of Tony Bland, who suffered prolonged hypoxia due to the crushing crowd surge, leaving him in a persistent vegetative state. Some 3 years after the incident, the judicial committee of the House of Lords was asked to rule on whether it would be lawful to withdraw his artificial nutrition and hydration, resulting in death. The opinions of the law lords in Airedale NHS Trust v Bland [1993] continue to inform health law 25 years after the disaster, shaping and developing the use of advance decisions to refuse treatment and setting out when it would be lawful to withdraw futile life-sustaining treatment.

if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, those responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so.

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LEGAL been codified in the Mental Capacity Act 2005.

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Best interests and withdrawal of life-sustaining treatment The main question for the House of Lords to decide in Bland would be whether it would be lawful to withdraw life-sustaining artificial nutrition and hydration from the patient. The approach of the Law Lords is best summed up by Lord Mustill (at 897) who held that it was a question of whether it was in Tony Bland’s best interests to continue with life-sustaining treatment. He held that as all hope of recovery had been abandoned, although the termination of his life is not in the best interests of Tony Bland, his best interests in continuing with treatment that would keep him alive have also disappeared. As a result, there was no duty to continue providing artificial nourishment and hydration as it would be futile to do so. In Airedale NHS Trust v Bland [1993] the House of Lords held that treatment is not appropriate or requisite simply to prolong a patient’s life. So in Bland, when treatment had no therapeutic purpose of any kind, it was futile and could be withdrawn. More recently, in Aintree University Hospitals Foundation Trust v James [2013] the United Kingdom Supreme Court confirmed that the approach to making decisions about whether to withdraw life-sustaining treatment in the case of persons lacking the capacity was correctly stated in Bland and continues to apply today. The Supreme Court confirmed that the focus when making decisions in such cases must be whether it was in the patient’s best interests to continue with the treatment, rather than whether it was in the patient’s best interests to withhold or withdraw treatment. If continued treatment is not in the patient’s best interests, then it would be lawful for a nurse to withhold or withdraw that treatment. The Supreme Court further confirmed that it would be unlawful to continue with the treatment and nurses who acted reasonably and without negligence in these circumstances would not be in breach of their duty towards the patient by withholding or withdrawing treatment. When considering the best interests of patients receiving continued life-sustaining treatment, nurses must continue to adopt the approach set out in Airedale NHS Trust v Bland [1993]. They are required to: ■■ Consider the patient’s welfare in the widest sense to include not just medical but social

British Journal of Nursing, 2014, Vol 23, No 12

and psychological issues as well the nature of the treatment in question, what it involved and its prospects of success ■■ Consider what the outcome of that treatment was likely to be ■■ Try to put themselves in the place of the patient and ask what the patient’s attitude to the treatment would be ■■ Consult others who were looking after the patient or interested in his or her welfare, for their view of what his or her attitude would be. When considering nature of the treatment, nurses must decide whether treatment would be futile in the sense of being ineffective or of no benefit to the patient. In this context, nurses must accept that recovery does not mean a return to full health, but the resumption of a quality of life that the patient would regard as worthwhile. Even where a nurse considers that continued treatment is a burden on the patient, that burden must be weighed against the benefits of a continued life. That weighing process will require a consideration of wider issues than the therapeutic value of the treatment. ■■ Consider

Airedale NHS Trust v Bland [1993] acknowledged the concept of futility in care and treatment, and established that it was lawful to withdraw treatment, including lifesustaining treatment, where it was no longer in a patient’s best interests to continue with the treatment. That approach to determining the lawfulness of withdrawing futile treatment continues to apply some 20 years later, and was recently confirmed by the United Kingdom Supreme Court in Aintree University Hospitals BJN Foundation Trust v James [2013].  Conflict of interest: none Aintree University Hospitals Foundation Trust v James [2013] UKSC 67 Airedale NHS Trust v Bland [1993] AC 789

Conclusion The legacy of the Hillsborough football stadium disaster continues to have an impact on healthcare law and the practice of nurses. The fundamental principles of consent to treatment and the extent of patients’ rights to self-determination so forcefully restated in Airedale NHS Trust v Bland [1993] continue to apply today and have been codified in the statutory principles under section 1 of the Mental Capacity Act 2005. Advance decisions were also given tacit judicial approval by the House of Lords in Bland and have now also been given statutory approval in the provisions of section 24 of the Mental Capacity Act 2005.

Key points n The cases arising from the Hillsborough football stadium disaster continue to have an impact on healthcare law some 25 years after the event n Advance decisions to refuse treatment were given initial judicial approval by the House of Lords in the Bland case n The statutory principles of capacity, self-determination and best interests that underpin the implementation of the Mental Capacity Act 2005 were initially considered and forcefully endorsed in Airedale NHS Trust v Bland [1993] n The approach to lawfully withdrawing futile life-sustaining treatment was also initially set out in Bland and continues to apply today

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Hillsborough part 2: advance decisions and futile treatment.

In the second article on the impact of the Hillsborough football stadium disaster on healthcare law, Richard Griffith discusses the case of Tony Bland...
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