Liverpool Care Pathway – The Court Has So Decided...

Why is the Telegraph so reticent these days to say it how it is?

The Telegraph was bold enough to point out that,

"A national audit recently disclosed that almost half of dying patients who were placed on the controversial pathway were not told that life-saving treatment had been withdrawn.
The study suggested that about 57,000 patients a year are dying in NHS hospitals without being told that efforts to keep them alive have been stopped.
It also revealed that thousands of dying patients were not given drugs to make them more comfortable.
Mr Hunt said patients and their families must always be fully informed. “What should never happen is that people should be put onto that care pathway without patients being fully in the loop and their families and relatives being fully in the loop as well,” he said..

But it was Mr. Hunt's outburst that the Liverpool Care Pathway is a "fantastic step forward"  that took the headline. To be fair to the Telegraph, perhaps Mr. Hunt's outburst took the headline precisely because it was so outrageous.

Norman Lamb, the care services minister, called for a review in November because, he said, there had been too many cases of families not being consulted.

Mr Hunt has said that patients and their families must always be fully informed. “What should never happen is that people should be put onto that care pathway without patients being fully in the loop and their families and relatives being fully in the loop as well.”

How does that fit with the appeal court ruling that David James may be put to death on the LCP? It would appear that 'being kept in the loop' as Mr. Hunt frivolously puts it does not really amount to anything if there is no possibility of raising objection or providing input to the situation. The doctors have no accountability to anyone.

"Local hospital have been allowed to put the retired musician on the Liverpool Care Pathway if his health deteriorates."  (Mail Online)

Does Mr. Hunt have any input on this? Both Mr. Hunt and Mr. Lamb are in agreement that patients and patients' kith and kin should not be kept in the dark about being placed on the Liverpool Care Pathway and, presumably, any of the other Death Pathways. What has Mr. lamb to say?

Mr. Lamb objects to families and their relatives not being consulted. It was for this reason he called his 'review'.

Mr. Lamb, neither Mr. David James nor his family wish for him to be put on the Liverpool Care pathway. Their wishes are being ignored and have been denied. They do not want Mr. James put on the Liverpool care pathway. The arrogance of doctors and the ignorance of judges have denied them their right of choice.

The Mental Health Act permits compulsory medical treatment under certain circumstances. In the matter of communicable (contagious) diseases/infections, compulsory medical treatment may also be permitted. That is not the case here. How, then, may Mr. James, or anyone else in like circumstances, be treated under the Liverpool care Pathway against their expressed wishes?

"His family, who have fought the hospital in the courts every step of the way, believe David has been handed a barbaric death sentence. ‘It’s legalised murder,’ says Julie, a civil servant. "  (Mail Online)

The court has so decided, but is it actually 'legal'?

The Mental Capacity Act (2005) provides five key principles:

• A presumption of capacity: every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
• The right for individuals to be supported to make their own decisions: people must be given all appropriate help before anyone concludes that they cannot make their own decisions.
• That individuals must retain the right to make what might be seen as eccentric or unwise decisions.
• Best interests: anything done for or on behalf of people without capacity must be in their best interests.
• Least restrictive intervention: anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

So, what are 'Best Interests'?

A problem arises because the focus of the medical practitioner is no longer on the curative but the palliative, even in the circumstance where no terminal diagnosis has been reached. In fact, in Mr. James' case, no formal diagnosis has been reached...

Medical Protection. org gives the following definition:

Determining the patient’s best interests

The focus should be on what the patient would consider his/her best interests, not what the doctor would consider his/her best interests if he were in the same position

When a patient lacks the capacity to consent to, or refuse, medical treatment, the doctor concerned will have to decide what is in the patient’s best interests (see Box 8). In doing so, the focus should be on what the patient would consider his/her best interests, not what the doctor would consider his/her best interests if he were in the same position.

The guidance in Box 9 is taken from the Mental Capacity Act Code of Practice and should prove useful to anyone having to determine a patient’s best interests, regardless of whether the Act applies in their country.

In England and Wales, if a patient lacks capacity and has no-one (other than paid workers) to represent his/her interests, an Independent Mental Capacity Advocate (IMCA) must be consulted whenever serious medical treatment or a change of accommodation is being contemplated.

In Scotland, when non-emergency treatment is considered to be in the patient’s best interests, the doctor with overall responsibility for the patient’s care must certify that the patient is not capable of consenting to the proposed treatment. The certificate authorises the doctor to “do what is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or mental health of the adult”.¹⁰

Box 8: Treating patients who lack capacity

1. Benefit (ie, your intervention must be necessary and must benefit the patient)
2. Minimum intervention (ie, your intervention must be the minimum necessary to achieve the purpose)
3. Take account of the wishes of the adult (ie, you must take account of the adult’s present and past wishes and feelings and you must try every possible means of communicating with the adult to find out what these are)
4. Consultation with relevant others (ie, you must take into account the views of the adult’s nearest relative and primary carer, and of any other person with powers to intervene in the adult’s affairs or personal welfare, or with an interest in the adult, so far as it is reasonable and practicable to do so)
5. Encourage the patient to use residual capacity (ie, you must encourage the adult to use any skills he or she has to participate in decision-making).

Adults with Incapacity (Scotland) Act 2000

Box 9: Best interests

Remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private

A person trying to work out the best interests of a person who lacks capacity to make a particular decision … should:

• Encourage the person to take part, or to improve their ability to take part, in making the decision 
• Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves
• Try to find out the views of the person who lacks capacity, including: 
  • the person’s past and present wishes and feelings – these may have been expressed verbally, in writing or through behaviour or habits.
  • any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question.
  • any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves.
• Not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
• Consider whether the person is likely to regain capacity (e.g. after receiving medical treatment). If so, can the decision wait until then?
• Not be motivated in any way by a desire to bring about the person’s death. They should not make assumptions about the person’s quality of life.
• If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult:
  • anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues
  • anyone engaged in caring for the person 
  • close relatives, friends or others who take an interest in the person’s welfare 
  • any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney made by the person 
  • any deputy appointed by the Court of Protection to make decisions for the person.
• For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted.
• When consulting, remember that the person who lacks the capacity to make the decision or act for themselves still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone.
• See if there are other options that may be less restrictive of the person’s rights.
• Weigh up all of these factors in order to work out what is in the person’s best interests.

MCA Code of Practice, pp. 65–6

The problem arises because the focus of the medical practitioner is no longer on the curative but the palliative, even in the circumstance where no terminal diagnosis has been reached. In fact, in Mr. James' case, no formal diagnosis has been reached!

How may the expressed wishes of Mr. James and his family be ignored and overturned?

The Liverpool Care Pathway is a medical treatment comprising a set protocol (which, in the non-hospice setting, is mostly ignored or not acted upon in any case) which expressed purpose is to ease the patient 'gently' into a state or condition of death. Is that in Mr. James' 'best interests'?

The court has so decided, but is it actually 'legal'?

In practice, the Mental Capacity Act, 2005, in what has been our experience,  is interpreted thus:

Those patients possessing capacity are the only persons considered able to consent for themselves; those lacking capacity are treated in their own "best interests" by the medical team in charge of their care. In such cases, family or next of kin are informed only at the discretion of the medical team in charge.

Many doctors treat this Act as a Carte Blanche to act without any consideration to consult with family, next of kin, which is considered but a nuisance and impediment to their charge.

Furthermore, in particular consideration to 'patient confidentiality', the Data Protection Act and 'protocol', the medical team in charge may decide against sharing any information.

The arrogant have been made more arrogant. But have the arrogant outdone themselves this time? Have medical practitioners not acted outside and beyond the remit of law as determined and delineated above?

 (Medical Protection. org)

‘It’s legalised murder,’ says Julie (Mail Online)

It is a bizarre world in which we live when if it was the case that Mr. James desired his own death, the court would have ruled against this. This is a Bradburian nightmare we walk. This is not dressed up, 'legalised' murder; it's murder, plain and simple!

Mr. Lamb, your adjudication is called for!