In 2002 the GMC issued a guidance booklet entitled Withholding and Withdrawing Life-prolonging Treatments. It is designed to provide doctors with a legal and ethical framework which they can use when making end-of-life decisions. It was written following consultation with over 700 interested parties.

The GMC guidance does not allow doctors to withdraw food or fluids from patients with the intention of hastening or causing their death.

While patients are able to make decisions, they must be fully involved in all aspects of their care, including how they would like to be treated if their condition worsens. Their wishes must be respected.

When patients are no longer able to take decisions for themselves, doctors must act in patients best interests, assessing their individual needs and taking into account the patients known wishes and the views of patients partners or others close to them. Our guidance about providing food and fluids by drip, tube or other technical means follows these principles.

We consulted extensively on the legal position and believe our guidance accords with the law. Our guidance provides a framework within which doctors should work to provide good care, which is lawful and ethical. Any questions about whether doctors following our guidance are acting unlawfully need clear resolution, and in some cases this will involve testing issues in the courts.

Judicial Review of Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making

Leave has been granted to Oliver Burke to seek a Judicial Review of our guidance Withholding and Withdrawing Life-prolonging Treatments: Good Practice in Decision-making, which was published in August 2002.

Remedy Sought

Mr Burke is seeking a declaration from the court that the guidance is unlawful because it is incompatible with the European Convention on Human Rights (ECHR)

The challenge focuses on three paragraphs of the guidance – 32, 38 and 81 in relation to decisions about withholding or withdrawing artificial nutrition or hydration. It’s argued that this guidance contravenes ECHR articles:

The right to life
Right to live free from cruel or inhuman treatment
Right to a fair trial
Right to a family and private life.

The law in this area is still developing; the UK did not adopt the ECHR into UK law until 2000. It is difficult to be certain, therefore, what is lawful in this context, since there have been very few cases which have addressed the issues directly.

Nevertheless, we have good grounds for believing that our guidance is within the law. We believe the limited case law available supports the line we have taken in the guidance on withdrawing or withholding artificial nutrition and hydration in some cases. In addition, we consulted extensively with a wide range of public and professional groups, including those representing major religions, and importantly with experts in UK and Human Rights law, including the Official Solicitor. While our guidance cannot reflect all opinions held in the community, the consultation exercise demonstrated that there was consensus amongst many diverse groups on key issues, and this is reflected in our guidance.

Is GMC guidance lawful?

Yes. We believe the guidance accords with present law, including taking account of recent judgements relating to article 2 (‘right to life’) of the European Convention on Human Rights (ECHR).

We consulted extensively on the legal position. Our drafting group included an eminent professor of medical law (Prof. Andrew Grubb). We had input from Dame Elizabeth Butler-Sloss (President, Family Division), and we took advice from the Official Solicitor and other legal experts.

Does the guidance allow doctors to cause death by withholding or withdrawing food and water?

It does not allow doctors to withhold or withdraw nutrition and hydration from patients with the intention of causing or hastening their death. It is currently unlawful for any person with a duty of care to a patient to intentionally cause or hasten the patient’s death.

Food and drink must never be withdrawn from a patient able to eat and drink themselves or with help from a nurse or carer.

What about withholding or withdrawing tube feeding and hydration?

The guidance reminds doctors that where a patient has a problem taking fluids or food orally, they must carry out a thorough assessment and consider carefully the various options for artificial nutrition and hydration (provided by tube or other medical means).

After thorough assessment of the likely benefits and burdens for the patient, a decision to withhold or withdraw artificial nutrition and hydration (AN&H) may be made only where:

· Doing so complies with the patient’s competently made refusal.

· In the case of a patient who is unable to decide and whose wishes cannot be determined, providing AN&H may cause suffering or be too burdensome in relation to the likely benefits. But only after consultation with the healthcare team, and relatives or other people who are close to the patient.

· It is authorised by a court.

Does this include withdrawing tube feeding from non-dying patients?

In the case of patients in a permanent vegetative state (PVS), there is advice about the need to apply to the courts before artificial nutrition and hydration can be withdrawn - paragraph 83.

The guidance also covers the situation where – while a patient’s death is not imminent – after careful clinical assessment, a doctor may judge that the patient’s condition is so severe, and the prognosis is so poor, that providing artificial nutrition or hydration may cause suffering, or be too burdensome for the patient in relation to the possible benefits. In these cases a decision to withhold or withdraw artificial nutrition or hydration may be made only where certain conditions have been met :

“…as well as consulting the health care team and those close to the patient, you must seek a second or expert opinion from a senior clinician (who might be from another discipline such as nursing) who has experience of the patient’s condition and who is not already directly involved in the patient’s care. This will ensure that, in a decision of such sensitivity, the patient’s interests have been thoroughly considered, and will provide necessary reassurance to those close to the patient and to the wider public.” (paragraph 81)

What if a relative, a nurse or other carer disagrees with a decision?

The guidance makes clear that, in any case where there is a significant disagreement about whether to provide artificial nutrition and hydration, and it cannot be resolved locally through informal or independent review, the doctor should take legal advice about seeking a ruling from the court.

It also advises doctors to alert the patient (or those close to the patient) where independent review or a legal opinion is being sought, so that they have the opportunity to participate or be represented - see para. 59.

Where does this leave a doctor who conscientiously objects to a decision to withhold or withdraw treatment from a patient?

There is provision for doctors to exercise conscientious objection to personal involvement in withholding and withdrawing treatment (see paragraphs 28 – 29).

And any doctor taking over the care of a patient in these circumstances would be entitled to act in accordance with his/her own conscience.

How will anyone be able to check whether good practice is being followed?

Throughout the guidance, we reinforce the need for decisions, and the basis on which they were made, to be properly documented and clearly communicated to all those involved in the decision-making and in providing care to the patient.

For further information:

www.gmc-uk.org

Gill Webber

Head of Media & Public Relations

020 7915 3508

gwebber@gmc-uk.org