In France death can legally be knowingly hastened during end of life treatment *** Is that also the situation in the UK ?

When we were discussing this on Nursing Times Online (the question being, do the clinicians not offer something like higher doses of morphine 'if the dose needed to adequately relieve your pain might also hasten your death', or should the clinicians offer you the higher does and describe the risk, and then allow the patient to decide whether to take the risk of a {possibly} shortened life ?'), and a Mental Health Nurse who posts as Tinkerbell wrote:

'...all I can say is that if I am in excruciating pain without any hope of making a recovery as I have a terminal illness then I would like as much pain relief as I can have to relieve my pain even if it kills me.

If I have the potential of making a recovery then I would want as much pain relief as I can tolerate without it killing me.

I would certainly hope that if that situation occurs I will not have a team unsure of what to do debating it whilst I scream out in pain 'for Gods sake somebody please help me'.'

Now, WHEN you are dying in agony, is definitely NOT the time for you and your clinicians to be debating the finer points of the law around assisted suicide, etc, which in this situation many clinicians seem to be worried about {leading to different behaviour from different clinciians in similar clinical situations} - clinicians and patients need to get these issues clear, and openly published so that patients and relatives can understand what they will be offered, in advance.

Similarly, elderly couples need to know how 999 Paramedics will react to various forms of wording on written Advance Decisions (ADRTs) BEFORE the ADRT is written - arguing the toss about that when you've just called 999, isn't at all helpful. And, live-with relatives and end-of-life patients, need to know whether the 999 Services will default to believing what live-with relatives tell them, or not: again, the laymen need to know this BEFORE making their decisions.

The NHS likes 'advance planning' - and patients and relatives need to know what would happen in these situations, in order for them to plan ahead.

By the way, because I'm accutely aware of the way that whatever you write around end-of-life and dying, someone will misconstrue your words, I did (rather michievously) point out to Tinkerbell that her '... even if it kills me' COULD be spun as 'support for assisted suicide'.

Tinkerbell wants it to be clear that she ISN'T talking about assisted suicide in her reply; I pretty-much knew that, but just to be unambiguous about the point.

Twitter, CANH, strange legal beliefs and ‘murder’

I annoyed Celia Kitzinger a few weeks ago, when I wrote in a tweet something like ‘the withholding or withdrawal of CANH (clinically-assisted nutrition and hydration) can be legal, or it can be murder’.

Now, I was astounded a few years ago, when I discovered that judges did not regard CANH as ‘a treatment’ - for me, the clue is that ‘clinically-assisted’ part of the description. Because our courts regarded CANH as being ‘somehow different from other medical treatments’, those courts were not, to use my phrase here, ‘simply applying the Mental Capacity Act to decisions which involved CANH’. Quite recently, our judges have changed their minds: they have decided that there was never a sound legal basis to describe CANH as anything other than a treatment for the purposes of the MCA – and it immediately and necessarily follows, that defensible best-interests decisions which would result in potentially-life-extending CANH being withheld or withdrawn can be made without applications for court rulings. We know this, because section 11 of the MCA is explicit, in stating that such best-interests decisions about life-sustaining treatments can be made by suitably-empowered [by the LPA which appointed the attorney] Welfare Attorneys.

There are some doctors who object to the MCA’s best-interests formulation of our law – typically these doctors will use the phrase ‘in the patient’s ‘so-called’ best interests’.

There are also some quite vociferous Tweeters, who state, effectively, that ‘all palliative care doctors are murderers’. When I wrote the tweet that annoyed Celia Kitzinger, it was those tweeters ‘who I has in mind’.

But: I’ve been pondering my ‘withholding of CANH could be murder’ assertion, and I am wondering what the precise legal situation is.

Suppose, that I had been abroad, and when I returned to the country I discovered that an elderly relative had died after an admission to hospital. The ‘facts’ which I would like to disentangle, are the following (and it is my scenario – these are to be taken as all true):

* My relative was old when in the hospital, but NOT suffering from any medical condition which would have led to death in the near future;

* A doctor, without consent from my relative (if capacitous) or without a defensibly-made best-interests decision (if incapacitous), decided to administer continuous heavy sedation to my relative: the effect of the sedation, was to make it impossible for my relative to eat and drink in the normal manner, and it also made it impossible for my relative to leave the hospital;

* The doctor, did NOT also administer CANH.

This is what I would like to get clear in my mind.

It is obvious, that the patient will inevitably die – with no food or hydration, you die. With food and hydration, the patient would have remained alive (I stated that as being the situation prior to the sedation).

So – if a loved-one of mine died in those circumstances, then I would absolutely say ‘my loved-one was murdered by the doctor’.

BUT: the sedation alone, wouldn’t kill the patient – the sedation, without ‘consent’, is what I would describe as ‘assault’. And, the failure to provide the CANH which would keep the sedated patient alive, is an inaction – but in this scenario, surely such an inaction is not appropriately described as mere ‘neglect’.

So – I’ll be pointing some of my ‘legally-clued-up’ contacts at this piece – my question is a simple one:

Would the doctor, be charged with murdering the patient?

In response to the question of opiate dosage possibly being used to hasten death. It is my understanding that there is something called the 'Doctrine of Double Effect'. This means that provided the dose of medication administered is necessary to palliate a symptom, and is not being given to hasten death, it is understood that the side effect could affect breathing but this should not prevent the pain being relieved by the medication.
Regarding clinically assisted nutrition and hydration, I feel this causes a huge dilemma at end of life. When someone is dying, their appetite tails of and eventually amounts of diet are not taken. Fluids also are taken less readily over a period of time until the person stops drinking altogether. This is a natural process of dying. Once a person has a PEG line,however, their choice to eat less and drink less can be almost impossible to assess, especially if the ability to communicate is affected.
It sometimes feels a form of abuse by continuing to feed a person who would not be able to eat/drink as their life approaches it's end. I have discussed this with several other professionals but nobody, as yet, can give a confident way to handle this. Is anyone else experiencing similar difficulties??

Hi Tanya,
I fully understand exactly what you are saying from my own experience of caring for people as end of life approaches and also from caring for both my parents who both died from different forms of cancer some 10 yrs apart hence the approach to treatment etc being different for both situations. i completely agree that peg feeding at end stage is abhorrent, question who benefits from this, hydration is always a problem as you say the body systems close down,i provided good oral care for both my parents even giving them water or juice from a sponge stick to keep the mouth nice and fresh, With regard to medication when my mother was on oramorph she used to ask how much can i take and i used to say as much as it takes to take the pain away rightly or wrongly. My father did not have a good death as the care was not as good then, had i had the means then to access the pain relief for him i would gladly have suffered any consequences in helping him to die peacefully,pain free and with dignity, to me this should be what any real caring human being would want for themselves and others at the end stage of life.

Quick comment, after just glancing at the start of Tania's post: I think the 'Doctrine of Double Effect' is no longer relevant, since the MCA became law - basically 'the benefits and risks' are considered during either Informed Consent or Best-Interests Decision-Making. Put another way - 'the double effect is merely INFORMATION which the decision-maker considers' if you think from an MCA perspective.

I'm short of time at present - I'll come back and read the two most recent posts later.

Hi Tania and Kevin, I've now had the time to read both of your pieces. Celia Kitzinger and her sister Jenny, had another sister who ended up on CANH for a long time in some sort of minimally-conscious state - they became very active in 'CANH debate'. I'm more interested in CPR during End-of-Life at Home, when family carers can be sure the patient wouldn't want it, but when 999 paramedics would attempt CPR. PEG feeding - and the problem at the end of Tania's post [and to an extent, you can see that as being created by 'kicking the can down the road' - by failing to properly consider the starting of CANH] is something we (doctors, patients, families, nurses - everyone) need to discuss more. I think most relatives, me included, share Kevin's position: 'With regard to medication when my mother was on oramorph she used to ask how much can I take and I used to say as much as it takes to take the pain away rightly or wrongly'.

But the issues do need more discussion, and more, and much clearer, understanding of 'what is legal, and where the lines are drawn' - and relatives need to know/understand the situation.

It isn't easy, at all!