Brain-damaged patients will be endangered by a U.K. Supreme Court decision making it easier to end their assisted nutrition and hydration, critics have said.
“This is concerning and disappointing news, because it removes an important safeguard from those without a voice,” Dr. Peter Saunders, campaign director of Care Not Killing, said in response to the July 30 ruling.
“It will make it more likely that severely brain-damaged patients will be starved or dehydrated to death in their supposed ‘best interests’ and that these decisions will be more influenced by those who have ideological or financial vested interests in this course of action.”
The ruling means that when the patient’s family and doctors agree, medical staff will be able to remove feeding tubes without applying to the Court of Protection, which has ruled on these cases for 25 years, BBC News reports.
The ruling could affect up to 24,000 U.K. patients who are in so-called permanent vegetative states or minimally conscious states. While such patients can breathe without assistance, they need clinically assisted nutrition and hydration by tube to continue to live.
“The Supreme Court has set a dangerous precedent,” Saunders said. “Taking these decisions away from the Court of Protection removes an important layer of legislative scrutiny and accountability and effectively weakens the law.”
Supreme Court Justice Lady Black said agreement between families and doctors provided sufficient safeguards for public confidence in the process, BBC News reports. She said families should still apply to court where there are “differences of view” between a patient’s relatives or medical professionals.
The ruling concerned the case of a patient known only as Mr. Y, a banker in his 50s who suffered a heart attack that caused severe brain damage. He was believed to have no chance of recovery.
Both his family and his doctors agreed that it was in his best interests to withdraw his feeding tube, which would cause his death.
The National Health Services trust had asked the High Court to rule that it was not necessary to apply to the Court of Protection when the doctors and the family agree withdrawal of nutrition and hydration is in a patient’s best interest. The High Court judge sided with the trust.
The Supreme Court’s decision rejected the appeal that an official solicitor filed on behalf of Mr. Y, letting the decision stand.
“In making these declarations Lady Black and the Supreme Court has dramatically moved the goalposts on end of life decision-making,” Saunders added. “Once we accept that death by dehydration is in some brain-damaged people’s ‘best interests’ we are on a very slippery slope indeed.”
“There is a clear difference between turning off a ventilator on a brain-dead patient and removing (nutrition and hyrdration) from a brain-damaged patient,” he said.
Contending that patients in vegetative states or minimal conscious states differ from patients with a “downward trajectory,” he said these patients’ conditions “do not in themselves lead inevitably to death.”
The Court of Protection ensured “independent scrutiny” of any application to remove care, according to Saunders. Under the old rules, implemented after a 1993 case, the court did not prevent clinically assisted nutrition and hydration from being removed in over 100 cases.
“It did this because it recognized the emotional and financial pressure that families and clinicians can fell under,” he said.
Saunders’ group, Care Not Killing, has cautioned that changes in legal protocols should take into account advances in treatment of severe brain injuries, in areas like brain cooling techniques, intracranial pressure monitoring and neurosurgery.
There are “real, demonstrable and significant uncertainties about diagnosis and prognosis” in such cases, Saunders said.
“These have increased rather than decreased in the last 20 years and this is why continued court oversight is necessary,” he added.
Care Not Killing is a U.K.-based coalition of about 50 human rights and disability rights organizations, health care and palliative care groups and faith-based groups, plus thousands of individual supporters. It advocates for better palliative care and against any weakening or repeal of existing laws against euthanasia and assisted suicide.
BBC legal correspondent Clive Coleman said that some experts believe the current legal practice had resulted in “individuals spending longer on life support in a vegetative state than was necessary because hospitals have shied away from going to court due to the expense and bureaucracy involved.”
Coleman said the ruling makes clear that courts don’t need to be involved in these cases, if doctors and families agree to withdraw nutrition and hydration and it is in “the best interests of the patient.”
“However, the judgement cuts across ethical and religious beliefs and will divide opinion,” he continued. “Some will see it as compassionate and humane, others the removing of a vital legal safeguard for a highly vulnerable group.”
Doctors have not needed court permission to withdraw other forms of life-sustaining treatment, such as life-saving dialysis.
Saunders, however, warned of the pressures patients’ families and doctors will face.
“Given the huge and growing financial pressure the health service is under is this really an additional pressure, no matter how subtle we want to put medical staff and administrators under,” he said.
It costs about $131,000 per year to care for patients in vegetative or minimally conscious states. Encouraging most patients down this path could result in $3.1 billion in savings for the National Health Service, said Saunders.
The Court of Protection process also costs health authorities over $65,000 in legal fees for each appeal, BBC News reports.