Wed | Aug 15, 2018

Laws of Eve | End of life decisions

Published:Monday | August 6, 2018 | 12:00 AM

Very challenging issues face families and medical professionals when patients sustain traumatic head injuries or suffer from medical conditions, such as strokes or heart attacks, that render them comatose. In the absence of living wills or advance directives, there is often a dilemma as to whether a patient should remain in a condition that usually involves dependency on oxygen and the use of feeding tubes, or be allowed to die.

Do you remember Terri Schiavo? In 1990, Terri sustained a cardiac arrest while at her home in Florida and, due to lack of oxygen, she suffered brain damage and fell into a coma. Terri eventually died on March 31, 2005; but for almost half of the time, she remained in a coma, a very public legal battle unfolded between her husband (who was also her legal guardian) and her family who were at odds over whether her feeding tube should be removed. Her husband said that Terri would not have wanted to live in a persistent vegetative state when doctors had concluded that her condition would never improve. The courts agreed with Terri's husband.

Many similar cases have been considered by several courts since 2005 and, even with improvements in technology and medicine, there remains doubt as to whether a comatose patient has brain activity or not. In England, a recent decision of the UK Supreme Court - An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants) [2018] UKSC 46 - may significantly reduce the number of instances in which courts become involved when end-of-life decisions have to be made.

The brief facts are that, in June 2017, Mr Y suffered a cardiac arrest, which resulted in oxygen deprivation and extensive brain damage. He never regained consciousness after the cardiac arrest and was kept alive artificially. By October 2017, medical assessments confirmed that Mr. Y was in a vegetative state and that there was no prospect for improvement. Unlike the Schiavo case, Mr Y's wife and children agreed that he would not wish to be kept alive and the family and the doctors agreed that it was in his best interest to withdraw life support.

 

DECLARATIONS

 

The NHS Trust commenced proceedings in the High Court for declarations (1) that it was not mandatory to seek the court's approval for withdrawal of clinically assisted nutrition and hydration ("CANH") from a patient who has prolonged disorder of consciousness when the clinical team and the patient's family were agreed that it was not in the patient's best interests that he continue to receive that treatment, and (2) that no civil or criminal liability would result if CANH were to be withdrawn. The official solicitor was directed to represent Mr Y in the proceedings.

The judge granted the first declaration, but gave permission for the official solicitor to appeal directly to the Supreme Court. In the meantime, although CANH had not been withdrawn, Mr Y died in December 2017, but the appeal proceeded because it was determined that the issues in the case were of general importance.

In a unanimous decision, the Supreme Court concluded that there is no mandatory requirement to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn. However, it was also stated that, "If, at the end of the medical process, it is apparent that the way forward is finely balanced, or there is a difference of medical opinion, or a lack of agreement to a proposed course of action from those with an interest in the patient's welfare, a court application can and should be made."

In those cases, the Supreme Court is encouraging parties to involve the court.

It should be noted that, although references are made in the judgment to the English Mental Capacity Act and decisions of the European Court of Human Rights, which would not be applicable to Jamaica, it was clearly stated that the common law supported the same conclusion.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.