Patients who are approaching the end of their life have the same entitlement to high quality care as other patients, and the GMC clearly sets out this expectation. You must treat patients and those close to them with dignity, respect and compassion, especially when they are facing difficult situations and decisions about care.
The GMC states that if you are undertaking an investigation or providing treatment, it is your responsibility to discuss it with the patient and ensure that they understand the risks and side effects as wellas alternatives, including no treatment. If you delegate this responsibility to someone else, you are still responsible for making sure that the patient has been given enough time and information to make an informed decision, and has given their valid consent.
The Liverpool Care Pathway (LCP) was designed to allow people with a terminal illness to die with dignity, but there have been a number of high-profile allegations in the media that patients have been placed on the LCP without their consent or their friend’s or family’s knowledge. The LCP recommendations make it very clear that “while legal consent is not required to place a patient on the LCP, the fact that the plan is being considered should always be discussed with a relative or carer and, if possible, the patient themselves”.
The LCP is to be phased out over the next six to 12 months following a government-commissioned review which heard that hospital staff wrongly interpreted its guidance for care of the dying. In its place, individual care plans for the dying will be brought in, and recommendations state that only senior clinicians must make the decision to give end-of-life care, along with the healthcare team.
END OF LIFE DECISIONS
Before people lose the capacity to consent to, or refuse treatment, particularly as a result of a progressive condition, they may make an advance decision (AD) or directive (or living will).
If the AD statement was made by a competent adult, and there is no reason to believe that they have changed their mind, it should be respected. The Mental Capacity Act 2005 (MCA) provides a safeguard for doctors acting on advance decisions.
PATIENTS WHO LACK CAPACITY
The MCA has provisions allowing for the appointment of proxy decision makers for incapacitated adults. If an adult patient lacks capacity to decide, the decisions youor others make on the patient’s behalf must be based on whether treatment would be of overall benefit to the patient, and which option would be least restrictive of the patient’s future choices. When no legal proxy exists and you are responsible for making the decision about overall benefit, you must consult with those close to the patient who lacks capacity, to help you reach a view.
For patients who lack capacity to decide, you must check the patient’s medical record for any information suggesting that they have made a potentially legally binding advance decision or directive refusing treatment.
FAILURE TO OBTAIN VALID CONSENT
The European Convention on Human Rights states that patients have a right to life and that there is a positive duty on public authorities to protect life. Towards the end of a patient’s life, it is important to remember this and to gain, and document, valid consent for any treatment or withdrawal of treatment.
A failure to follow the GMC’s guidance on consent can raise a question about a doctor’s fitness to practise, and place their registration at risk.
A significant proportion of clinical negligence claims are settled simply because of a lack of evidence of valid consent being obtained. In extreme circumstances, touching without consent can give rise to allegations of battery or assault, and even criminal charges, but this is unusual.
FOR CONSENT TO BE VALID:
- The patient must be competent – assessment of a person’s capacity should be based on his/her ability to understand, retain and weigh in the balance of information relevant to a particular decision.
- The person must also be able to communicate the decision.
- The patient must have sufficient information to make a choice.
- The patient must be able to give their consent freely.
MPS factsheet, Consent – The basics
GMC, Consent Guidance: Patients and Doctors Making Decisions Together (2008)
DH, Reference guide to consent for examination or treatment Second edition
The Mental Capacity Act (2005)
GMC, Treatment and Care Towards the End of Life: Good Practice in Decision Making
MPS Practice Matters, Doctor’s Orders vs Patient Choice, June 2013
The Marie Curie Palliative Care Institute Liverpool website, National Care of the Dying Audit of Hospitals – Round 3 (NCDAH) Results:
NHS Choices, What is the Liverpool Care Pathway?