An update from the Research & Ethics Committee, re a recent Court of Appeal ruling in England (Townsend v Epsom)
A recent Court of Appeal ruling in England (Townsend v Epsom) may have far reaching implications for clinicians when making treatment decisions under the Mental Capacity Act. The court has held that ‘all decisions about incapacitated adults, including clinical decisions, have to be made in the patient’s best interests, taking into account all relevant circumstances’, and that ‘If, at the end of the clinical decision-making process, there is disagreement between any of the parties about the continuation of life-sustaining treatment that cannot be resolved by discussion and/or mediation, then the matter should be referred to the Court of Protection … There is no carve out for clinical decision’. While this ruling highlights profound questions regarding value judgements that could influence clinicians’ interpretation of ‘futility’ (e.g. whether to offer dialysis to a person in a terminal decline of consciousness), it also raises the following issues: (1) Equity: if decisions about treatment options should be made in the best interests of a person lacking capacity, should the ‘menu’ of treatment options be open to all patients, rather than rely on clinical judgement? (2) Professionalism: can clinicians be coerced to offer and/or provide treatments that are, in their professional opinion, inappropriate? (3) Practice: If any disputes on such issues are to be resolved by the Court of Protection, will we see a shift towards over-treatment and/or defensive practice? And will all treatments, including those deemed clinically inappropriate, continue to be provided pending the Court’s decision? (4) Justice: How are issues of resource allocation to be considered if the patient and family’s preferences are always to be taken into account (e.g. ICU-level care)? (5) Scope: Will this ruling extend to all treatment settings, including community and hospice?
In view of these and other considerations, an appeal to the Supreme Court is likely, and until this is decided great uncertainty will continue to be present.. However, it does remind us of key principles of good practice: (1) When considering what treatments to offer, beware value judgements (e.g. the person may live longer, but with a ‘poor quality of life’) and focus on the likelihood of achieving the desired physiological aim, (2) Compassionate and transparent communication with patients and relatives is key in ensuring that everyone has been heard, and that decision making is shared appropriately, (3) Timely second opinions can support good communication and shared decision making, and (4) The term ‘futility’, if used at all, should be very clearly and transparently defined.
We welcome members’ comments and reflections.
The Research and Ethics Committee