An FY1 doctor was working nights in the emergency department. A patient was brought in by ambulance having taken an overdose. The patient had phoned the ambulance themselves and were fully conscious when they were brought in. The amount of medication the patient had taken was life threatening and without treatment they would die.
The patient explained that this had been a fully considered decision and they did not want treatment. When asking why, in that case, did they call an ambulance the patient responded by saying that while they did want to die, they did not want to be alone and wanted to ensure they were kept comfortable and not in any pain.
Despite the doctor’s best efforts, the patient remained adamant that they did not want treatment and wanted to die.
The FY1 doctor was concerned about not treating the patient knowing that they had a treatable condition and would die without treatment, however, her colleagues said there was nothing they could do if the patient was refusing treatment. She rang the MDU for advice.
First and foremost, it is important to discuss the situation with a senior colleague. All doctors must work within the limits of their competence and experience and this is a very difficult situation.
If the patient isn’t treated and dies, the family may raise concerns and there may be an internal trust investigation. There will also be an inquest into the patient’s death and all of the staff involved in the patient’s care are likely to be asked for a report for the coroner and may possibly be asked to attend an inquest hearing. If the patient is treated, they may complain that they were treated against their wishes. This could potentially result in a criminal and/or GMC investigation.
The first thing to establish is whether the patient has the mental capacity to make the decision that they do not want treatment. Capacity is the ability to make a decision and it is described as decision-specific and time-specific. You should always start with the presumption that adult patients have the capacity to make decisions for themselves. In this case, you should not assume the patient lacks capacity because they have made a decision that you do not agree with or feel is not in their best interests.
In recently updated guidance on consent, the GMC refer to assessing capacity as a core-clinical skill which doesn’t necessarily require specialist input (paragraph 82). However in this case, as the patient’s decision will result in their death, you may feel that it would be more appropriate for a more senior doctor to carry out a capacity assessment.
The following article describes the two-stage test that is used to determine whether someone has the capacity to make a particular decision.
In the initial part of the test, it is important to establish whether the patient has an impairment of or disturbance in the functioning of their mind or brain. This may be temporary or permanent. Just because a patient has taken an overdose of drugs or medication does not automatically mean this has affected the functioning of their mind or brain, but it does need to be considered.
If there is an impairment, the second part of the test considers whether this is sufficient to mean that the patient is unable to make a particular decision at the time it needs to be made. How this is established is set out in the Mental Capacity Act 2005.
The patient must be able to do all the following:
- Understand the information relevant to the decision (including the reasonably foreseeable consequences of whatever decision is made or of failing to make a decision).
- Retain that information in making the decision.
- Use or weigh the information available, and
- Communicate the decision by any means, including speech, sign language, or simple muscle movement.
If, after carrying out an assessment, you believe the patient lacks the capacity to make a decision about their treatment you should act in their best interests and in a way that does not limit their future decisions. In an emergency situation, when decisions may need to be made more quickly, the GMC’s guidance still applies and you should initially assume a conscious patient has capacity and seek consent before providing treatment.
Where a patient does have the capacity to decide about whether they wish to receive treatment, you should respect their wishes. The Mental Capacity Act 2005 makes it very clear that a person with capacity has an absolute right to refuse treatment and the fact that a patient makes an ill-advised decision does not, on its own, allow you to conclude that they lack capacity. It is important to have ensured that the patient has a full understanding of the care and options available to them and also what will happen if they do not receive treatment. It should also be made clear to the patient that they can change their mind at any time.
Where a patient does have the capacity to decide about whether they wish to receive treatment, you should respect their wishes.
As with all clinical interactions with patients it is important to make clear and careful documentation of the discussions you’ve had with the patient and any senior colleagues and what decisions have been made. In particular, guidance produced by the National Institute of Clinical Excellence (NICE) advises recording the information provided to the patient, any efforts to persuade the patient to accept treatment, the alternatives which were discussed, what the patient’s decision was and any other action taken, such as contacting the patient’s GP. This documentation will help you later if you are asked to justify your decisions or provide a report for an internal trust investigation or coroner’s inquest.
This is a fictional case based on calls and cases dealt with by our advisory team.
Dr Kathryn Leask
Dr Kathryn Leask
BSc (Hons) MBChB (Hons) LLB MA MRCPCH FFFLM MRCPathME DMedEth
Kathryn has been a medico-legal adviser with the MDU since 2007 and is a team leader, trainer and mentor in the medical advisory department. Before joining the MDU, she worked in paediatrics gaining her MRCPCH in 2002 and did her specialty training in clinical genetics. She has an MA in Health Care Ethics and Law, a Bachelor of Law and a Professional Doctorate in Medical Ethics. She is also a fellow of the Faculty of Forensic and Legal Medicine and has previously been an examiner and deputy chief examiner for the faculty. Kathryn is currently a member of the faculty’s training and education subcommittee and a member of the Royal College of Pathologists (medical examiner).
See more by Dr Kathryn Leask