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Briggs v Briggs: Rethinking the Law on Withdrawal of Treatment

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About The Author

Rebecca Von Blumenthal (Former Regular Writer)

Rebecca graduated from King's College London in July 2014 with a 2.1 LLB with European Legal Studies. Rebecca has a deep-rooted interest in human rights, criminal law, public law and clinical negligence. Her desire to scrutinise and proliferate accurate information concerning these topics has lead her to pursue a career combining writing with law reform on a practical and significant level.

I am dying from the treatment of too many physicians.

Alexander the Great

The evolution of the Minimally Conscious State has posed considerable difficulties for the law when it comes to the question of authorising the withdrawal of treatment. Where a patient has a level of consciousness and exhibits signs of awareness and response, no matter how slight, the concept of futility of treatment becomes much more difficult to justify and far more complex.

As with most cases involving end-of-life decision-making, opinions are divided and facts are easily misconstrued. There are common misconceptions concerning disorders of consciousness and critics argue that the withdrawal of treatment amounts to euthanasia.  Recent medical progress has presented a new dilemma; the ability to sustain life artificially means that patients, who are permanently unconscious, or minimally conscious, may now be able to ‘live’ for many years. Under the balancing act of weighing the sanctity of life against the principle of self-determination, this article will examine the question that therefore arises: whether doctors are always under a duty to sustain life for as long as possible.  

Incapacity: The Mental Capacity Act 2005

If a patient is judged to be competent, her refusal of medical treatment is decisive. This right to self-determined choice is underpinned by Article 8 of the European Convention on Human Rights and the principles of autonomy.

When a patient lacks capacity, their interests are governed by the Mental Capacity Act 2005 ("MCA 2005"), which confirms in Section 1(5) that the common law position that the treatment of adults who lack capacity is governed by the best interests test, and that - as confirmed by Section 1(6) the ‘least restrictive alternative’ principle applies.

Section 4 of the MCA 2005 fleshes out the factors to be considered when making a determination of what is in a person’s best interests. The list is not exhaustive and acts mainly as a starting point, but one striking feature of the checklist is the reference it makes to the patient’s past and present wishes and feelings and their beliefs and values. It is recognised that there may be a range of responses to the patient’s condition, and the patient’s views and values can significantly impact what is best for them. After all, whilst a profound respect for the sanctity of human life is embedded in our law and moral philosophy, this is not necessarily absolute.

The Legality of Withdrawal of Treatment

The central difference between patients in a Permanent Vegetative State (PVS) and Minimally Conscious State (MCS) is that in the former, patients have no sensory awareness. In contrast, MCS patients remain conscious, show minimal and often inconsistent awareness, and can in some cases demonstrate signs of response.

The vast majority of decisions to withdraw life-sustaining medical treatments are never referred to court but are decided on the basis of common law and professional guidelines. However, according to the MCA 2005 Code of Practice, PVS and MCS patients are anomalous in that withdrawing artificial nutrition and hydration (ANH) from this patient group requires referral to the Court of Protection – even when families and healthcare teams agree that cessation of ANH is in the patient’s best interest.

As a PVS patient has no awareness of self or environment, the prevailing assumption is that life-prolonging treatment is not in their best interests on the grounds that it can be considered to be futile. Indeed, provided the diagnosis of PVS is correct, it was noted in A Primary Care Trust v CW [2010] that court approval of treatment withdrawal is now essentially a formality.

This formality is a legacy of Airedale NHS Trust v Bland [1993] in which the House of Lords established a lasting precedent. The court held that it is not a doctor’s duty to provide medical treatment that was not in the patient’s best interests; the withdrawal of ANH constituted an omission, not an act; and prolonging a PVS patient’s life ceases to be in their best interest as it confers no benefit on the patient. Since treatment is no longer in the patient’s best interests, the doctor is no longer under a duty to prolong life, and therefore the treatment withdrawal could not constitute the actus reus of murder. Put simply, death after treatment withdrawal does not constitute assisted dying within the framework of euthanasia.

Unlike patients in PVS, with no cognitive capacity whatsoever, in which it is a matter of what Lord Keith in Bland described as a ‘complete indifference if he lives or dies,’ patients that are in a MCS require there to be a weighing up of competing factors due to their consciousness, however slight it may be.

The Triumph of Preservation of Life

It was not until 2011 and the case of Re M [2011], that the court first had to consider whether it would be lawful to withdraw treatment from someone in a MCS. The patient had been in a MCS for 8 years, and unlike Bland she had some sensory experiences: she could feel pain and being played certain music tracks made her cry. There was some evidence that M also experienced positive sensations: she would often turn her face to the sun and occasionally tapped her wrist in time to music.

The question was as such: does the intensity or duration of negative experiences for MCS patients outweigh their positive experiences? A ‘balance sheet’ was drawn up, in which the advantages of withdrawing ANH were compared to the disadvantages. Many factors were considered, yet the court judge, Baker J, placed his emphasis solely on the preservation of life. He compared her MCS favourably to that of PVS and decided that treatment must continue. She was, after all, ‘recognisably alive.’

In the face of uncertainty over M’s quality of life, Baker J essentially had a choice between prioritising M’s autonomy and prioritising the preservation of life. As a patient with some degree of consciousness, Baker J was of the view that, on balance, the principle of the preservation of life in practice outweighed other important factors, such as the opinion of M’s partner of 30 years, and evidence of M’s previously expressed values and beliefs. She had expressed on multiple occasions that she did not want to be dependent on others. In this instance, it appeared as though Baker J equated the right to life to a ‘duty to live.’

Indeed, it should not be arrogantly assumed that a restricted existence is necessarily one without pleasure or enjoyment; it was noted in Re M that even though the pleasures of life may appear smaller, it does not mean they can be disregarded. But the case set a dangerous emphasis, namely how marginal M’s previously expressed wishes and feelings were to the essentially paternalistic assessment of whether M’s profoundly restricted existence was on balance positive or negative for her.

The Significance of the Briggs Case

As a result of a motorcycle crash in July 2015, Paul Briggs sustained severe brain damage and was left in a MCS. His wife, Lindsey Briggs, requested doctors to respect Briggs’ previous wishes and withdraw life support treatment. Having her husband kept alive by medical intervention amounted to a ‘state worse than death’ due to his value for independence and his active and sociable nature.

Since Re M, there had been one successful case where treatment withdrawal was sought for a patient in a MCS. In M v Bury Clinical Commissioning Group [2015], The withdrawal was authorised: the 68-year-old woman had been in a MCS for 8 years, was at the very end stages of a degenerative disease, and the application was not opposed by any of the parties involved. In contrast, doctors and health experts believed there was a potential for Mr. Briggs to emerge from the MCS and could live for a further 9-10 years and possibly be happy.’

Extraordinarily, the Court of Protection in Briggs v Briggs & Ors [2016] ruled in Mrs. Briggs's favour and decided that Mr. Briggs should go on to a palliative care regime at a hospice, effectively parting company with Re M. Charles J took a very different approach to Baker J in Re M and decided that Mr. Briggs’ best interests are best served by exercising his right of self-determination rather than the counter argument based on the preservation of his life.  He gave Section 4(6) of the MCA 2005 much weight, and seriously considered Mr. Briggs’ past wishes and feelings, taking a holistic evaluation of the evidence.

Charles J concluded that the court was doing what Mr. Briggs would have wanted and what he would have done for himself if he was able to do so.  From the evidence, it was decided that when an individual’s wishes on such an intensely personal issue can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life. It was a deserved victory for the principle of autonomy.

The decision in the Briggs case presents a striking contrast to cases involving individuals with capacity, such as Tony Nicklinson, who have, to date, lost all of their fights for the right to die in a manner of their choosing.  It is important to understand not only why there is a fundamental difference between right to die cases and those that concern withdrawal of treatment, but also to be critical of how the law concerning withdrawal of treatment has developed and where the ethical journey in this field looks set to journey towards.

Death via Withdrawal of Treatment versus Death via an Act

There is a very clear line enshrined in the law between withdrawing treatment with the inevitable consequence of death, and causing death by an act. The latter falls into the category of active euthanasia, which is a criminal offence: it is unlawful to provide treatment or follow a course of action that is intended to end life or accelerate death. Withdrawal of treatment, however, as required by Section 4(5) of the MCA 2005, must not be motivated by a desire to cause death.

The crucial difference in cases of treatment withdrawal is that the treatment is no longer in the patient’s best interests; the doctor is no longer under a duty to prolong the patient’s life. In these instances, respect for the sanctity of life must yield to other obligations such as self-determination.

Critics of treatment withdrawal cases argue that the law endorses the notion that the lives of some patients are no longer worthwhile. They point to the Bland case in which the Law Lords openly admit that the doctors intended to kill Bland, criticising how the law prohibits, as murder, the intentional hastening of a patient’s death by an act but permits the intentional hastening of a patient’s death by withdrawing treatment. 

It is true that the law is confounded. In order for treatment withdrawal not to amount to murder, the process of ANH withdrawal had to be classified as an omission rather than an act. Bland establishes that withdrawal of treatment does indeed amount to an omission; discontinuing ANH is no different from not initiating it in the first place - the doctor desists from taking a step which prevents his patient dying as a result of his pre-existing condition. While it can be viewed as legally coherent, it is both morally and ethically dubious, and is a prime illustration of how the law has been conveniently moulded to scenarios in an attempt to avoid the introduction of intolerably fine and arbitrary distinctions.

However, arguing that the doctor is intentionally killing the patient by omission would be to misinterpret the law. The law appeals to the doctrine of double effect for legal justification. Simply, the intention behind the withdrawing such treatment cannot be to end the patient’s life but must be to avoid imposing treatment that is no longer in the patient’s best interests; even though the patient’s death may indirectly result from it. It draws a fine distinction between the intention underlying an action on the one hand and the consequences that are foreseen but are not intended on the other. Charles J appeals to this doctrine when ruling to have Briggs’ treatment withdrawn.

It is also worth remembering that a capacitous individual is entitled to decide whether or not to accept medical treatment. This right to refuse extends to declining treatment that would, if administered, save the life of the patient. In the case of MCS patients, the entire point of the best interest’s assessment is to confidently ascertain the patient’s wishes, and how that person would decide, if he could decide, in the current situation. It is not because of the notion that certain lives are not worth living – it is that that individual would not have wanted that treatment if he could decide in that instant. This reiterates that sanctity of life is not an absolute concept and the principle of autonomy must also be adhered to.

Conclusion

Evidently, it is a distorted legal landscape. Navigating through it is complex and arduous and rarely leaves all questioned satisfactorily answered. However, while treatment withdrawal can be clearly legally distinguished from euthanasia, the ethical foundations are indistinguishable. It indicates a deep cultural resonance in our society that makes it preferable to die of starvation via an omission, rather than carrying out terminal sedation – anything to avoid the slippery slope to euthanasia.

Within this moral debate, it is often the family’s perspective that is regrettably forgotten. In all MCS cases discussed above, all possibilities that the patient could make a recovery to a quality of life that the patient would find acceptable had been exhausted. Any ‘natural’ way of allowing death was no longer available to them and so ‘active’ steps had to be taken. They were some of the few that were able to do so; there have only been 100 cases of requests for treatment withdrawal for patients in PVS and MCS in the last two decades. The already hugely symbolic freight of ANH withdrawal is aggravated by intimidating courtrooms with lawyers, expert witnesses, judges and, potentially, media attention. The lengthy, complex and costly process leads to life-prolonging treatment by default, without reference to the best interests of the person. In the case of PVS patients, the formality is inescapable. Equality of treatment under the law would recognise the right of PVS patients to equal protection from futile treatment that is not in their best interests.

The law has not developed in a way that accommodates these families in such difficult situations and judges consistently have to navigate this ethical maze with very little input from Parliament. As medicine continues to advance, it is about time the law evolved with it, establishing a new set of ethically consistent rules that are distinct from the general criminal law to allow for a more just, clear and humane method of treatment withdrawal.

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Tagged: Human Rights, Justice, Medical Law & Ethics

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