A special factor in the checklist (see Decision Makers, Decision Making and Safeguards, Common factors to take into account) applies to decisions about treatment which is necessary to keep the person alive (life-sustaining treatment). The fundamental rule is that anyone who is deciding whether or not life sustaining treatment is in the best interests of someone who lacks capacity to consent to or refuse such treatment must not be motivated by a desire to bring about the person’s death.
Whether a treatment is life sustaining depends not only on the type of treatment, but also on the particular circumstances in which it may be prescribed. For example, in some situations giving antibiotics may be life sustaining, whereas in other circumstances antibiotics are used to treat a non-life-threatening condition. It is up to the doctor or healthcare professional providing treatment to assess whether the treatment is life sustaining in each particular situation.
All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life sustaining treatment, even if this may result in the person’s death. The decision maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Health and social care staff should also refer to relevant professional guidance when making decisions regarding life sustaining treatment, for example:
As with all decisions, before deciding to withdraw or withhold life sustaining treatment, the decision maker must consider the range of treatment options available to work out what would be in the person’s best interests. All the factors in the best interests checklist should be considered, and in particular, the decision maker should consider any statements that the person has previously made about their wishes and feelings about life sustaining treatment.
It cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests checklist and use their professional skills to decide whether life sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests.
Where a person has made a written statement in advance that requests particular medical treatments, such as artiﬁcial nutrition and hydration (ANH), these requests should be taken into account by the treating doctor in the same way as requests made by a patient who has the capacity to make such decisions. Like anyone else involved in making this decision, the doctor must weigh written statements alongside all other relevant factors to decide whether it is in the best interests of the patient to provide or continue life sustaining treatment.
If someone has made an advance decision to refuse life sustaining treatment, speciﬁc rules apply (see Chapter 9 of the Mental Capacity Act Code of Practice) which emphasise the importance of noting the distinction between a written statement expressing treatment preferences and a statement which constitutes an advance decision to refuse treatment.
Where there is any doubt about the patient’s best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life sustaining treatment is in the patient’s best interests.
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