Heading off a litigation storm

At the moment, thousands of families are unable to be with their loved ones who are dying. This is unimaginably torturous. It also means that the families will rely on what they are told about the patient’s condition and what is expected to happen. 

The perceived lack of transparency is leading to familial conflict. This has implications for clinicians and can increase the likelihood of legal action. 

Most people do not consider issues related to end-of-life care prior to serious illness. The problem is, by not doing so they are exposing themselves to decisions being taken at the end of their life by clinicians, guided by those close to them and which they may not have chosen if they had a say. 

Risk of conflict

Some people want lifesaving treatment at all costs. Others prioritise comfort. In not considering these issues during healthy times, they may be risking conflict arising in respect of those decisions. The clinicians themselves are placed in a position where they may be sued. 

Covid-19 can lead to a rapid deterioration in health such that a person may not be able to articulate their views on whether they would wish to be ventilated or resuscitated. These two procedures can lead to more suffering and poor clinical outcomes for some patients, particularly the old or those with underlying conditions. 

I am aware of family members seeking to commence legal proceedings against NHS trusts, compelling them to treat a patient with ventilation. In those situations, the patient was not competent due to their illness, though the decisions taken by clinicians were motivated by their best interests. 

However, with press coverage focusing on a lack of ventilators, family members felt the decision was resource driven. If the patients had communicated their feelings about ventilation beforehand, their feelings may have been consistent with medical decisions. Family members would not have to be engaging lawyers at a time of personal crisis. 

Another crucial issue concerns who is consulted in circumstances where a patient cannot make a decision themselves. Clinicians will look to family members, particularly their next of kin, to inform their decisions. However, the decision remains with the clinician unless there is a legal framework in place (see below).

The canvassing of opinions from those close to the patient is, therefore, a highly sensitive area. Matters can become complicated. A family member may take a view that they are the next of kin when they are not; or there are disagreements among family members as to what the wishes of the patient would be. 

Family members can – and sometimes do – succeed in interfering with clinical decisions. There is not enough emphasis on the extent to which medical professionals must be alive to familial conflicts and trained on how to handle these according to the law. Failing to handle such conflicts correctly means the care sector finding itself on the receiving end of litigation. 

The situations that may give rise to litigation – whether clinical negligence, Court of Protection or otherwise – are numerous. It is easy for facts to be distorted or a false narrative to develop, due to the sensitivity of the subject matter. This may be a more acute problem where access to clinicians is restricted. 

Obtaining pre-action disclosure is important. It may be that this is provided voluntarily due to an NHS trust wishing to head off any claim from the outset. Otherwise, in respect of civil claims, pre-action disclosure can be ordered by the court provided it would be material that falls within disclosure obligations in proceedings; and that the pre-action disclosure may dispose fairly of the anticipated proceeding, assist the dispute to be resolved without proceedings or save costs. 

Where the factual landscape may not be clear, it will be possible to argue that such pre-action disclosure would satisfy those requirements. 

Being proactive

It is, therefore, vital for us all to confront our own mortality and take proactive steps to help our loved ones in future, if they are ever in a position of watching us fade away and die; and then have to deal with the aftermath while grieving. 

The clients most vulnerable to covid-19 complications should be urged to record their wishes for end-of-life care. The NHS has been trialling tests which can predict how badly a person will suffer from the disease, enabling them to prioritise the care they give and consider whether it should involve treatment or palliative care. 

This, combined with no advanced care planning by a patient, is a perfect storm for disputes spilling into the legal arena. It also may irrevocably fracture some families. The answer is good advance care planning. This is where a client or patient plans their future care and support, including medical treatment, while they have the capacity to do so. 

A decision on resuscitation, for example, is advanced care planning. This is a conversation that general practitioners (GPs) often have with clinically vulnerable and or older patients because it is believed that resuscitation would lead to an unacceptably poor quality of life.

A do not resuscitate (DNR) decision is then applied to the patient’s medical records. However, there are decisions around a range of issues that clients can considered. 

The process involves the client considering what they would want and the situations in which they would refuse treatment. It may be helpful to encourage them to speak to those closest to them about their preferences. 

A crucial decision is whether they would wish to refuse specific treatment (this is an ‘advance decision’ to refuse treatment, commonly known as a living will).

Once the client has made their decisions as to future care, an advance decision form should be completed, signed and dated. It must be witnessed. If there is a decision to refuse life-sustaining treatment then a sentence must be included that states that the refusal applies even if your life is at risk or shortened as a result. 

Certified copies of the advance decision form should be given to any relevant family members and or friends; as well as to the person’s GP and anyone else involved in their care. If your client’s view changes, then the advance care plan can be updated to reflect this.

Advance decisions are legally binding in England and Wales, so long as they meet certain requirements. This means if a healthcare professional knows the client has made an advance decision, they must follow it. If an advance decision is not followed, the NHS trust may be taken to court compelling them to follow it. 

Next of kin – or not?

What of the situation where capacity is not in issue, but next of kin are consulted about care decisions and a dispute arises surrounding who next of kin is? Given the risks, it is important to urge clients to appoint an attorney under a lasting power of attorney for health and welfare. 

The public, including our own clients, should know there are tools available to protect their legal rights and reduce the risk of conflict. We need to utilise them more.
 

Gemma Lindfield is a barrister at 5 St Andrew’s Hill

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