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A matter of life and death

Suzette van der Merwe, director at MacRobert Attorneys, looks at the ethical and legal considerations facing doctors when deciding to withdraw a patient’s treatment
19 May 2015

  
Human lives can be prolonged by a range of medical technology that is continuously advancing, which means that many healthcare professionals are facing more end-of-life decisions than ever. The ethical and legal considerations are numerous and this article attempts to draw them together and provide helpful guidance.

Who can make the decision?

Where a patient lacks capacity to consent to medical treatment, consent may be given by a court-appointed curator, or the patient’s spouse, partner, parent, major child, brother or sister, as long as they are competent and old enough to do so. This type of situation is usually a straightforward one for a practitioner, given that the intention is to provide treatment that prolongs life, which is usually considered to be in the best interests of the patient.

Consent to the withholding and/or withdrawing of treatment (which includes ‘do not resuscitate’ (‘DNR’) orders) on the other hand, is more problematic, as these steps may hasten the patient’s death. A practitioner may end up facing criminal charges if such decisions are made without careful consideration of the relevant guidelines.

However, in any acute life-threatening emergency where a delay in instituting treatment may impact negatively on the outcome and information is lacking, practitioners are advised to start treatment until a clearer assessment can be made.

A patient with decisional capacity

They have the right to refuse life-sustaining medical treatment even though this may hasten death. Our courts have given unambiguous recognition and acceptance to the right of a patient to refuse a life-saving medical intervention.1 This is an explicit rejection of medical paternalism and an endorsement of patient autonomy as a fundamental right.

A patient who lacks decisional capacity

Here difficult questions may arise with regard to the withholding of treatment, particularly where the patient’s family members are not all in agreement about what they believe should happen next.

  • Living wills

    A living will is a written advance directive given by a patient at an earlier stage, when he or she was of sound mind and had decisional capacity. This contains his or her wishes in the event of facing an incurable disease, or becoming so ill that prospects of recovery are slim and they are no longer in the position to consent to the withdrawal of treatment.
     
    Although it has not yet been recognised in terms of South African legislation and is still being considered by government, it may be considered to be legally binding and allows a healthcare practitioner insight into the previously expressed views, feelings and values of a patient when having to make decisions about their continued medical care. Some of the criticisms of living wills include that these are often not individualised and may not be applicable to the current situation, meaning that they are then open to misinterpretation. Sometimes the wording is too general, so the will is of little help in determining what the patient would have wanted.
      
    However, when properly worded and recent, a living will can be helpful to a practitioner when considering what the patient is likely to have wanted, and can assist in making decisions about the withholding of treatment.
     
  • The proxy decision-maker

    The National Health Act, Act 61 of 2003, also provides for patients mandating another to act on their behalf when they are no longer able to do so. The patient’s selected ‘proxy decision-maker’ may, in the absence of a living will or advance directive, give instructions to practitioners to withhold life-prolonging treatment to the terminally ill patient when there is no reasonable prospect of recovery.
      
  • Other considerations

    The quality of life that a patient will have following life-prolonging treatment is paramount in these decisions, and this will differ from individual to individual. A practitioner has to give careful consideration to the patient’s previously expressed wishes, either to him personally if it is a long-standing doctor–patient relationship, or in a living will, or as conveyed to him by family members.
      
    The wishes of the family also need to be taken into account, but ultimately it is the practitioner’s decision whether to be aggressive with therapy, for example by ventilating a patient, introducing dialysis, inserting a pacemaker, chest drain or to conduct surgery, or to withhold these measures and continue only with the giving of pain medication, fluids, nutrition and, if appropriate, antibiotics.

The legal view

Our courts have held that the withdrawal of treatment in circumstances where the patient’s condition is terminal and the prognosis hopeless, does not amount to a new intervening act between the underlying cause of death and the withdrawal of treatment – and is therefore lawful.2

Our courts have also held that the maintenance of biological life, such as heartbeat and respiration unaccompanied by any function of the brain, cannot be equated with living in the human context.3 In this case, the patient had been in a permanent vegetative state for five years and was fed by means of a nasogastric feeding tube. The court, having also considered evidence of the patient’s strong views on voluntary euthanasia and who had signed a living will, ruled that judging by society’s boni mores (or moral yardstick), the artificial feeding of the patient may be discontinued.

In the National Health Act, death is described as “brain death”. Treatment that is withdrawn or withheld when a patient is kept artificially alive but is technically brain dead at the time, is not considered unlawful. Similarly, giving a DNR order in such circumstances will also be acceptable.

Our courts expressed the view that in the case of omission or discontinuance of life-sustaining procedures, legal liability would depend on whether there was a duty to institute such procedures or continue with such procedures.4 Where the institution of life-sustaining procedures were not successful in sustaining cortical and cerebral functions but simply biological functions (heartbeat, respiration, digestion and blood circulation) then the resuscitative measures cannot be considered to have been successful and as such no duty to continue with these arose.

As indicated above, the practical difficulty for medical practitioners lies in deciding whether there are reasonable prospects of recovery and if so, what the patient’s quality of life will probably be afterward and whether it will be in the patient’s best interests to introduce or continue with treatment that prolongs his/her life.

If you have consulted with family members and other healthcare practitioners over the withdrawing of treatment, and no consensus can be reached, you should contact MPS for advice. Practitioners are advised to fully and clearly document any decisions in patients’ notes, including the reasons for the decisions and the procedure adopted in the decision-making process.

The HPCSA provides Guidelines for the Withholding and Withdrawing of Treatment in Booklet 12 (May 2008), available on their website.5

References

  1. Castell v De Greeff 1994 (4) SA 408 (C)
  2. S v Williams 1986 (4) SA 1188 (A)
  3. Clarke v Hurst NO and Others 1992 (4) SA 630 (D)
  4. Clarke v Hurst NO and Others 1992 (4) SA 630 (D)
  5. www.hpcsa.co.za/conduct/Ethics (accessed 31 October 2014)

CASE 1:

Dialysis or a right to die?

19 May 2015
Patient A, a 57-year-old male, was admitted to the ICU of a private hospital with kidney and liver failure, and in a coma. There was no living will and family members gave a history of long-standing alcohol abuse. The patient was not known to Dr X, a specialist physician. Dr X conducted a physical examination and blood tests. He formed the opinion that although A was extremely ill, he had a reasonable prospect of recovery should he be ventilated and receive dialysis. 

The family members disagreed with Dr X’s proposed management and requested that only fluids and pain medication be administered, and that he be allowed to die. Dr X advised the family that although there was liver damage, there was a reasonable prospect of A making a recovery with a reasonable quality of life. 

Dr X advised the family that he had ethical codes to uphold and that, legally, it was not appropriate at that time to withhold A’s treatment. Dr X made the correct decision but if the family disagreed, they had the option of obtaining a second opinion from another practitioner or apply for a court order.

CASE 2:

The importance of living wills

19 May 2015
Patient B, a 70-year-old female, with a history of dementia, stroke and pneumonia, was admitted to the emergency room of a private hospital in a coma. She had advanced lung cancer and was well-known to the physician, Dr Y, who was called to see her. There was no living will but, in the past, B informed Dr Y during a consultation that should she become so ill that she can no longer decide on appropriate treatment herself, and if there were no reasonable prospects of recovery with aggressive treatment, she be allowed to die peacefully with only fluids and pain medication being administered. 

This had been documented clearly in Dr Y’s clinical records. Dr Y informed the family members of his previous discussions with B. He also informed them that he did not believe that there was a reasonable prospect of meaningful recovery, should he ventilate B and administer aggressive treatment. This opinion was shared by a senior colleague who had also evaluated the patient at his request. All the family members disagreed and requested that “everything possible” be done to save/prolong B’s life. 

Dr Y sought legal advice and was advised that he would be acting within his rights if he were to decide not to commence with aggressive therapy and that this should be carefully documented. However, in view of the high likelihood of a complaint by the family, it would be advisable to obtain a court order to protect Dr Y’s position. 
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3 comments
  • By Alice on 15 February 2016 11:10

    Hi PB. Thanks for your posts. Please accept my apologies for the late reply. I've checked with a lawyer in South Africa and she has confirmed that it is not that Dr Y did not believe that the patient would recover from cancer if he/she is ventilated now and aggressive treatment administered, the test is whether she would recover from her COMA sufficiently with such treatment so as to be compos mentis to be able to listen to and appreciate the various treatment options open to her (for cancer and whatever other co-morbidities may be playing a role) and then to communicate her own choice on her further treatment, freely and intelligently, to her treating doctors.

    The emphasis is on whether with treatment now, the patient may recover to the extent that there is informed choice and communication about further treatment later on.I hope this is helpful. With best wishes, The Web Team

  • By PB on 25 January 2016 03:16 In Case 2, did Dr Y believe that ventilation and aggressive treatment would be futile because of her advanced lung cancer?
  • By PB on 25 January 2016 03:14 Regarding Case 2, did Dr Y believe  ventilating and providing aggressive treatment would be futile because there was no reasonable prospect of meaningful recovery from her advanced lung cancer?
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