Dr Anne Slowther and the Revd Dr Mark Bratton. Legal framework Doctrine of necessity (in emergency may treat to save life or prevent serious deterioration)

Dr Anne Slowther and the Revd Dr Mark Bratton

Legal framework Doctrine of necessity (in emergency may

treat to save life or prevent serious deterioration)

MCA If patient lacks capacity ◦ Need to assess capacity◦ If lacks capacity then principle of best interests

applies◦ BUT, restraint must be to prevent harm and must

be proportionate

Is this an emergency situation to invoke the doctrine of necessity?

If not, capacity assessment◦ An unwise decision does not indicate lack of

capacity◦ Alcohol/drugs/head injury may impair capacity◦ Obligation to facilitate capacity (explanation,

reassurance, safe environment etc)

Restraint must be proportionate and minimum required to achieve treatment goal.◦ Physical v chemical(sedation) Which is less

restrictive/less harmful to patient?

Question for reflection:◦ If there was no history of intoxication would your

response be different?

Legal framework◦ A patient with capacity can consent to and refuse

any treatment and no-one can make decisions for them (Ms B)

◦ A patient cannot demand treatment BUT it would normally be expected that life sustaining treatment would be provided unless the patient was very close to death and the burden of treatment outweighed the benefit for that patient. (Burke)

Legal framework◦ If a patient lacked capacity the family cannot

make decisions on their behalf (unless they are a donee of an LPA)

◦ He family should be consulted regarding the views, wishes, values of the patient.

Legal framework◦ A best interests decision includes medical

interests but also psychological, social and spiritual interests.

◦ A decision not to commence NIVS is the same as a decision to withdraw it and would be governed by the same principles.

GMC guidance (the following is with regard to ANH but could be used as a case comparison with NIVS)◦ If a patient is in the end stage of a disease or

condition, but you judge that their death is not expected within hours or days, you must provide clinically assisted nutrition or hydration if it would be of overall benefit to them, taking into account the patient’s beliefs and values, any previous request for nutrition or hydration by tube or drip and any other views they previously expressed about their care. The patient’s request must be given weight and, when the benefits, burdens and risks are finely balanced, will usually be the deciding factor. (Treatment and care towards the end of life Good practice in decision making para 119)

GMC guidance ◦ You should not withdraw or decide not to start

treatment if doing so would involve significant risk for the patient and the only justification is resource constraints. (Treatment and care towards the end of life Good practice in decision making para 39)

Question for reflection:◦ Can NIVS be part of palliative care?