13:34, July 30 38 0 theguardian.com

2018-07-30 13:34:06
The Guardian view on the law on dying: a welcome, cautious step

The supreme court has decided that doctors may withdraw treatment from patients in a persistent vegetative state without consulting the courts in every case – providing that both the medical team and the patient’s relatives are agreed that this withdrawal is in the patient’s best interests. The judgment inches further along a line of precedents starting with the tragic case of Tony Bland, a Hillsborough victim who was allowed to die after four years in a profound coma. It hinges on a subtle but extremely powerful reinterpretation of the law by Lady Hale, who argued that one of the legal principles at stake is that treatment can only lawfully be given with the patient’s consent and when the medical professionals involved believe it is in the patient’s best interests. Most of the time both these conditions can be assumed. But neither can be taken for granted in end-of-life care. And if either is absent, then the treatment – including the supply of liquids and nourishment – is, she says, unlawful. The perspective then is reversed: the court is no longer asking whether it is lawful to withhold or withdraw the nourishment that’s keeping a patient alive, but whether it is lawful in some cases to supply it.

English and indeed European law has a presumption that it is sometimes in the best interests of some patients to die. This is clearly set out in the statutory code of conduct from the Mental Capacity Act of 2005: “Where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion.”

This code may set an unrealistic standard, in that someone who is fully aware – as a doctor must be – of the effect of the course of action they propose cannot entirely exclude death from their considerations. The intention of withholding food and nourishment is not that the patient should persist indefinitely in a state of hunger and thirst, assuming they are capable on some level of experience. It is also worth noting the distinction between acting in a patient’s best interests and acting to relieve their suffering. The two may coincide but the law does not presume they do. There can be no certainty that a patient in a sufficiently deep coma experiences anything at all, not even any suffering to relieve.

Campaigners against euthanasia claim the judgment could hasten the deaths of more than 20,000 people whose care currently costs the NHS £100,000 a year each. This figure assumes that in all those cases the relatives are agreed with the doctors that the patient’s best interests are not served by treatment. Even if that were the case, the only thing a recourse to the courts would do under the present law would be to delay, complicate, and make much more expensive a process that would inevitably reach the same conclusion. Monday’s judgment still – and rightly – reserves a decisive vote for the courts in cases where there is no agreement about what is in a patient’s best interests. Slippery slope arguments have some force but this judgment comes with crampons. The really difficult and dangerous steps will come if parliament extends the law towards assisted dying for the fully conscious.