Module 3: Best Interests

3.2 Best Interests about Clinically Assisted Nutrition and Hydration

This Unit highlights the 2018 guidance from the British Medical Association (BMA) and Royal College of Physicians (RCP) about feeding tubes and the 2020 guidance from the RCP about PDoC patient care specifically.  It then invites you to engage with a scenario to test your learning and think about strategies to help ensure good practice. First (especially if you skipped Unit 4), refresh your memory about what is meant by ‘Best Interests’. Here is a short clip from an interview we did with John Chisholm, Chair of the Medical Ethics Committee of the British Medical Association.

 

In law in England and Wales, best interests applies to clinically assisted nutrition and hydration (the feeding tube) in exactly the same way as it applies to any other medical treatment. It can only be provided if it is in the patient’s best interests.

There will always be a strong presumption that it is in the patient’s best interests to receive life-sustaining treatment, but that presumption can be rebutted (over-ruled) if there is clear evidence that a patient would not want CANH provided in the circumstances that have arisen.

Clinically assisted nutrition and hydration should not be started unless it is in the patient’s best interests to have it. If it has already been started (e.g. to buy time to allow for a more precise prognosis) it should be reviewed regularly.  Once it becomes clear that it is not any more in the patient’s best interests, it should be stopped.

Until 2018 it was commonly believed that withdrawing clinically assisted nutrition and hydration from vegetative and minimally conscious patients required an application to the Court of Protection. The Supreme Court has ruled that court applications are NOT required unless – at the end of the best interests decision-making process – there is disagreement about the patient’s best interests or the decision is finely balanced.

After the Supreme Court decision, the British Medical Association and the Royal College of Physicians published professional Guidance (endorsed by the General Medical Council) which is the key Guidance used by medical professionals required to make the decisions about whether clinically assisted nutrition and hydration (CANH) is in patients’ best interests.

The Guidance translates the Mental Capacity Act and the Supreme Court decision into practical advice for doctors making decisions about clinically assisted nutrition and hydration. You can access it here. (There are also training materials and podcasts available on this site: https://www.bma.org.uk/advice/employment/ethics/mental-capacity/clinically-assisted-nutrition-and-hydration).  This guidance can be used in conjunction with the 2020 RCP guidance which can be found here.

A final point to note: when decisions about (dis)continuing life-sustaining treatment go to court it is often assumed that the court is deciding whether it is legal to withdraw treatment. In law, in fact, the question before the court is whether it is legal to continue it. This clarification of the common way of (mis)framing this question can be useful for clarifying thinking in this area. Note how Baroness Hale spelt out this legal point in the Supreme Court:

“ … the focus is on whether it is in the patient’s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it.”

(Baroness Hale, Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, our emphasis)