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The BMA and Royal College of Physicians have drawn up timely guidance on clinically assisted nutrition and hydration

The Supreme Court confirmed in the summer that decisions about CANH (clinically assisted nutrition and hydration) did not have to be routinely referred to the courts.

Previously, as a result of a judgment 25 years ago it had been recommended ‘as a matter of good practice’ that reference be made to the courts where doctors withdrew CANH from a patient in a persistent vegetative state, but neither this judgment nor the Mental Capacity Act imposed a strict duty to do so.

The recent ruling is one reason why it is particularly important for doctors to be given comprehensive guidance on decisions around CANH.

Following a detailed process, the BMA has drawn up the guidance with the Royal College of Physicians. It has been endorsed by the GMC.

 

Consultation

The process included:

  • Inviting randomly selected BMA members from relevant specialties to attend focus groups to ‘user test’ the guidance
  • A professional consultative group with more than 60 senior lawyers, clinicians and allied health professionals, with experience of making the decisions
  • Consultation with patient-support groups and families who had been through the experience.

The aim of the guidance is to ensure the law is followed correctly and to give practical advice to health professionals.

While the starting point is a strong presumption that CANH should be provided, prolonging life, at the centre of any decision is whether beginning or continuing treatment is in the best interests of the individual patient.

‘The aim of the guidance is to ensure the law is followed correctly’

Royal Berkshire Hospital intensive care consultant Chris Danbury says best-interest decisions are about ‘putting yourself in the position’ of an individual.

‘I may be an expert on the treatment of critical-care patients but I’m not an expert in that individual person,’ he says.

‘There are people with far more information, knowledge and expertise in that area. They are the people close to them, who have known them for decades. We need to listen to their stories.’

 

Best interests

The guidance lays out how these best-interest assessments should be made, and the important role patients’ families and those close to them play in the process. It also includes detailed information on seeking necessary second opinions from other clinicians.

The guidance covers decisions for patients who lack capacity in England and Wales, who are not imminently dying and could go on living for some time if CANH is provided. The broad spectrum of those covered by the guidance has been broadly divided into three categories:

  • Patients with progressive neurodegenerative conditions
  • Patients with multiple comorbidities or frailties, which are likely to shorten life expectancy, who have suffered a sudden onset, or rapidly professing, brain injuries
  • Previously healthy patients who are in VSs (vegetative states) or MCSs (minimally conscious states) following sudden onset brain injuries.

It’s difficult – and perhaps counter-productive – to attempt to sum up complex guidance in a short space but it is possible to identify some legal and regulatory principles:

  • CANH is a form of medical treatment, much like artificial ventilation
  • It should only be provided for patients who lack capacity when it is in their best interests
  • Decision makers should start from a strong presumption that it is in patients’ best interests to receive life-sustaining treatment.
  • This can be rebutted if there is clear evidence that patients would not want CANH to be provided
  • ‘All decisions must be made in accordance with the Mental Capacity Act 2005’

  • All decisions must be made in accordance with the Mental Capacity Act 2005
  • All decisions must focus on the individual circumstances of each patient and on reaching the decision that is right for that patient
  • There is no requirement for decisions to withdraw CANH to be approved by the court, as long as there is agreement on what is in the best interests of patients, the provisions of the Mental Capacity Act 2005 have been followed, and the relevant professional guidance has been observed
  • As per GMC guidance, a second clinical opinion should be sought where it is proposed, in patients’ best interests, to stop, or not to start CANH and the patient is not within hours or days of death.

At the request of BMA members at the focus groups, the BMA and RCP have produced a leaflet that doctors can give to patients’ family and friends, explaining the need for a best interests decision about CANH and setting out their role in the process.

 

Medical treatment

BMA medical ethics committee chair John Chisholm (pictured below) says: ‘Decisions surrounding the withdrawal of CANH pose clinical, ethical and legal challenges for doctors, and can be needed at an incredibly difficult time for patients’ families and loved ones.

‘The law is clear that CANH is a form of medical treatment, much like artificial ventilation, and while there should be a strong presumption that starting or continuing this treatment is in the patient’s best interests, this will not always be the case.

'The aim of medical treatment is not simply to prolong life at all costs, and the courts have been clear that in some circumstances it will not be in the best interests of the individual patient to receive CANH.

'This guidance therefore provides practical guidance for health professionals on how to follow the legal and regulatory framework that is in place to make the decision that is right for each individual.’

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