ETHICAL ASPECTS OF

WITHHOLDING AND WITHDRAWING LIFE SUSTAINING TREATMENT

VINCY MARY VAVACHAN1

INTRODUCTION:

With the development of increasingly effective life sustaining treatment, the importance of

when to withhold and withdraw treatment has also increased in parallel. Most hospitals have

patients who receive treatments or interventions that keep them alive. Eventually the patient‟s

physicians will have to face the dilemma of whether or not to continue these treatments. In

some circumstances, treatment is no longer beneficial to the patients, while in other cases, the

patient or families no longer want treatment to continue.

Health care providers are also supposed to avoid harming patients when they provide

treatment. As per Hippocratic Oath physicians should help their patient and preserve human

life. It also require a physician “to keep the good of the patient as the highest priority.” So

while withholding and withdrawing life sustaining treatment physicians should balance

patient‟s dignity and autonomy with physician‟s professional autonomy and integrity.

DEFINITIONS:

LIFE SUSTAINING TREATMENT:

All treatment which have the potential to postpone the patient‟s death and includes, for

example, cardiopulmonary resuscitation, artificial ventilation, blood products, pacemakers,

vaso-pressors, specialized treatments for particular conditions such as chemotherapy or

1
Student, 2nd semester LLM, School of Indian Legal Thought, MG University, Kottaym,

vincymaryvavachan@gmail.com , ph.no. 9447705604

1
dialysis, antibiotics when given for a potentially life threatening infection, and artificial

nutrition and hydration.

WITHHOLDING LIFE SUSTAINING TREATMENT:

It is the considered decision not to institute a medically appropriate and potentially beneficial

therapy, with the understanding that the patient will probably die without the therapy in

question.

WITHDRAWING LIFE SUSTAINING TREATMENT:

The cessation and removal of an ongoing medical therapy with explicit intent not to substitute

an equivalent alternative treatment; it is fully anticipated that the patient will die following

the change in treatment.

Withholding and withdrawing medical treatment is not physician assisted suicide or

euthanasia. Physician assisted suicide or euthanasia causes death regardless of disease. In the

withholding and withdrawing of treatments the patients often dies of their underlying disease,

not the withholding and withdrawing of treatments.

When is withholding and withdrawing of life sustaining treatment appropriate:-

The withholding or withdrawing of life sustaining treatment is a serious decision and if not

done appropriately, may be unethical and legally not acceptable. The Hospital Authority

agrees that it is ethical and legally acceptable to withhold and withdraw life sustaining

treatment in the following conditions:

a) When a mentally competent and properly informed patient refuses the life sustaining

treatment.

b) When the treatment is futile.

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ETHICAL ISSUES

Withholding and withdrawing life sustaining therapy accords with ethical principles like,

 Autonomy : respect for the individual and their ability to make decisions about their

own health and future

 Beneficence: actions intended to benefit the patient or others

 Non- malifience: actions intended not to harm or bring harm to the patient and others

 Justice: being fair or just to the wider community in terms of the consequences of an

action.

These ethical principles are fundamental values which provide the basis for reasoned analysis

of, and justification for, making a decision or taking an action. So while taking a decision

regarding withholding and withdrawing life sustaining treatment, a physician should consider

these ethical principle.

The hospital authority concurs with the UK and US authorities that there are no ethical

differences between withholding and withdrawing treatment when a certain treatment is

deemed futile, the decision to withdraw that treatment is based on the same ethical principles

as the decisions to withhold it. There is a professional and ethical duty to ensure that

decisions to withholding and withdrawing life sustaining treatment are made on the basis of a

proper assessment of the relevant factors in each individual case. It includes,

 Capacity and incapacity

 Duty of care

 Quality of life

 Best interest

 Benefits

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  Futility

 Harm

 Resource management

Capacity and incapacity

Patient over age of majority are presumed to have the capacity to make decisions for

themselves unless the contrary is proven. So, when an adult patient is mentally competent and

properly informed the patient‟s decision to have life sustaining treatment withhold or

withdraw must be respected2. According to ethical principles of autonomy physicians and

health care provides have a responsibility to respect patient autonomy by withholding and

withdrawing life sustaining treatment as requested by an informed and capable patient.

But if the adult patient lacks capacity to make an informed decision, the physician must rely

on any valid written legal document which explicitly discusses the withholding and

withdrawing life sustaining treatment.3 In Sidaway case4 court held that the principle of

2
Re B (adult: refusal of medical treatment) [2002] 2 AllER 449

Ms.B was a 43 years old woman. She suffered damage to her spinal code, as a result of which she

became complete paralysis from the neck down. In 2001 Ms.B asked for her ventilator to be switched

off and repeated this request in many occasions. According to medical evidence, without ventilation

she would have a less than 1% chance of breathing independently and death would almost certainly

follow. Although Ms.B was examined by a number of psychiatrists and was deemed to have capacity,

the doctors treating her refused to withdraw ventilation. They argued that her specific lack of

knowledge and experience of exposure to a spinal rehabilitation unit meant that Ms.B did not hav the

requisite information to give informed consent. But court held that hospital authority acted unlawfully

for continuing to provide ventilation against the wishes of an adult patient with capacity.
3
Withholding and Withdrawing Life – Sustaining Therapy, American Thoracic society, vol.144, no.3,

sep.3 1991, pp.726-731

4
self-determination requires that, respect must be given to the wishes of the patient. So that if

an adult patient of sound mind refuses, however unreasonably, to consent to treatment or case

by which his life would or might be prolonged the doctors responsible for his care must give

effect to his wishes, even though they do not consider it to be in his best interest to do so.

If the patient lack capacity to make an informed decision and has no valid written document,

then the physician must discuss his recommendations regarding withholding and withdrawing

life sustaining treatment with the patient‟s legal representative or surrogate or proxy decision

maker. Patient‟s family is considered as surrogate decision maker. Family includes person

with whom the patients is closely associated. In the case when there is no person closely

associated with the patient, but there are persons who both care about the patient and have

sufficient relevant knowledge of the patient, such persons may be appropriate surrogates. It is

the responsibility of the physician and all members of the care team to keep the focus of

decision making on the patient‟s preference and best interests, rather than a surrogate‟s

beliefs.

In re Quinlan5 is considered as first major judicial decision to hold that life sustaining

treatment may be discontinued in appropriate circumstances, even if the patient is unable or

incompetent to make the decision. Quinlan family wished to disconnect the respirator. The

4
Sideway v. Board of Governers of Benthlem Royal Hospital and Maudsley Hospital. [1985] AC 871
5
70 NJ 10 (1976) [Supreme Court of New Jersey]

Court held that Quinlan‟s father and rest of her family could decide whether to disconnect the

respirator, stating that the “decision should be accepted by a society the overwhelming majority of

whose members would, we think, in similar circumstances, exercise such a choice in the same for

themselves or for those closest to them.” The court further stated that Quinlan‟s father should act in

accordance with the understanding of his daughter‟s best interests and not necessarily upon what his

daughter would have done had she been able to express her wishes

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treating physicians, however, refused. So her father then sought judicial approval to act as

Quinlan‟s legal guardian and to have the respirator removed. Court has agreed with Quinlan‟s

father that where a patient is incompetent, the right to refuse such treatment may be asserted

by the patient‟s family or guardian.

US Supreme Court in Nancy Cruzan case6 found that a competent person has a

constitutionally protected right to refuse lifesaving treatment. And in case of incompetent

person cannot make an informed and voluntary choice, requires a surrogate to make that

choice for them. If there is a clear and convincing evidence of the incompetent person‟s

wishes was to withdraw the life sustaining treatment, then treatment withdrawal is not a

violation of the person‟s constitutional right.

In Auckland Area Health Board v. Attorney General7 Newzland Supreme Court discussed

that whether Hospital Authority would be guilty of culpable homicide if they withdraw the

ventilator that maintained the breathing and heartbeat of the patient. Court ruled that if the

patient was beyond recovery and the doctor had made a collegiate decision supported by the

appropriate medical ethics committee and with the informed consent of the patient family, it

would not constitute culpable homicide.

6
Nancy Cruzan v. Director, Missouri Deparment of Health, 497 US 261 (1990)

Nancy Cruzan was involved in a car accident, which left her in a “persistent vegetative state”. After it

became clear that Cruzan would not improve, her parents requested that the hospital terminate the life

support procedures. But the hospital and subsequently the state court refused to comply. Cruzan‟s

parents argued that Cruzan had stated to her roommate that she did not want to be kept alive

artificially. So based on the evidence of wishes court allowed to withdraw her feeding tube.
7
[1993]1 NZLR 235, Patient is a 58years old man with an extreme case of Gullian-Barre syndrome.

For the past 12 months he had survived in a state of “living death”. Unable to move or communicate

and with no prospect of recovery.

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Another case8 Newzland Supreme Court held that, involvement of family members is

necessary by hospital authority while taking a decision concerning the patient‟s care and

treatment and further held that “where there is doubt regarding this matter, the court has the

power to act to protect the life and welfare of the unconscious person.”

Minor: From birth, all people have the right to expect appropriate care and decisions must

be taken in their best interests. If the doctor get the parental agreement, they need not provide

life sustain treatment for babies born with a sever impairments. The decision by the parents

should be accepted unless their views conflict seriously with the view of the health care team

about the best interest of the minor.9

In Glass v. UK10, court held that, if there is disagreement between those with parental

responsibility for the child and the clinical team concerning the appropriate course of action,

a ruling should be sought from the court as early as possible. European Court of Human

Rights also held in this case that, it is illegal to start any treatment against the wishes of the

parents, unless it has been approved by a court or is in an emergency.

8
Northridge v. Central Sydney Area Health Service, [2000] NSWSC 124

The plaintiff, as tutor for her brother, sought the intervention of the court to prevent doctors from

withdrawing treatment and life support from her brother, who had suffered irreversible brain damage

from a drug overdose 9 month earlier. Although sedated by morphine and semi-conscious the patient

was said to be unaware of events and his surroundings. The hospital administration had made a

decision only after the patient‟s admission and without consultation with the patient‟s family. Because

he would soon die and there was no point in treating him further.
9
Re C (a minor) (medical treatment), [2000] 2 FLR 677
10
[2004] 1 FLR 1019

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Duty of care

A fundamental part of the health care team‟s positive duty of care is to take reasonable steps

to keep the patient alive, where that is the patient‟s known wish. The only expectations to this

general duty would be if patients with capacity refused the treatment or if patients lacked

capacity and it was not considered in their best interest to kept alive artificially.

In the case of Burke v. General Medical Council11the Court of Appeal stated that where a

patient with capacity requests artificial nutrition and hydration this must be provided. The

court was careful to explain that this did not mean that patients had the right to demand

particular forms of treatment but rather that a fundamental aspect of the duty of care is to take

reasonable steps to keep the patient alive where that is the patient‟s known wish.

The duty to provide life prolonging treatment, where this is the patient‟s wish does not extend

to the provision of treatment that is not clinically indicated. The Court of Appeal 12 endorsed

the following principles that had been put forward by the General Medical Council for

choosing a reasonable treatment:-

 The doctor decides what treatment options would provide overall clinical benefit for

the patient

 These options are offered to the patient, explaining the benefits, risks and side effects

of each

 The patient decides which, if any, of the treatment options he or she wishes to accept

 If one option is accepted, the doctor will provide it; or

11
[2006] QB 273
12
Bruke v. GMC, [2006] QB 273

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  If the patient refuses all the options and requests an alternative which was not offered,

the doctor will discuss the treatment with him, or her. The doctor is not, however,

obliged to offer that treatment if he or she does not believe it to be clinically

indicated, although a second opinion should be offered.

Where patients lack capacity and have not made a valid advances decision, the duty of care

requires action to be taken that is the patients best interest.

Quality of life

The Courts have specifically stated that the quality of life which would reasonably be

expected following treatment is an appropriate factor to take into account when making

treatment decisions. The acceptability of taking account of the patient‟s quality of life in

making treatment decisions was confirmed by the court in Re R (adult: medical treatment).13

In this case the decision to withhold life- prolonging treatment from a patient, R, who was

born with a serious malformation of the brain as well as cerebral palsy, was challenged by the

hospital on the ground that it was “irrational and unlawful” to permit medical treatment to be

withheld on the basis of an assessment of a patient‟s quality of life. The case was dismissed

and held that it was appropriate to considered whether the patient‟s life, if treatment was

given, would be “so afflicted as to be intolerable.” So allow to withdraw the life sustaining

treatment as per parent‟s wishes.

In NHS Trust v. MB14 parents opposed the decision of Hospital authority to discontinue

ventilation. Parents arguing that, the child had a reasonable quality of life based in large part

13
[1996]2 FLR 99
14
[2006] EWHC 507

9
upon his interaction with his family.15 Court accepted the arguments of parents and held that

this child not only suffered almost relentless discomfort, periods of distress and relatively

short episodes of pain, but also continued to have relationships of value to him with members

of his family and to gain others pleasure from touch, sight and sound. These were precious

and real benefits that the child was destined to gain from life and were not outweighed by his

suffering so as to justify ending his life.

Best interest

The term “interests” is a technical term in moral philosophy and ethics. It refers to those

things which are needed to have a good life, and which a person therefore has a significant

ethical claim to. It encompasses the ideas of beneficial and non-maleficence. Where patients

lack capacity to make decisions for them, the test that must be applied to determine whether

treatment should be provided is „best interest‟. This is broader than medical interest and

includes the patient‟s own wishes and values.

In assessing best interests account must be taken of16:

 The person‟s past and present wishes and feelings (any relevant written statement

made by the patient before capacity was lost)

 The beliefs and values that would be likely to influence the decision if the patient had

capacity.

 The other factors the patient would be likely to consider if able to do so.

15
This 18 month old child was severely disabled and unable to make any voluntary movement other

than with his eyes, and very slightly, with eye brows, corners of mouth, thumbs, and toes. However,

the child was conscious, with sensory awareness and seemed to have full cognitive function.
16
Mental Capacity Act, 2005 (England)

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The Court of Appeal in the case of Bruke referred to cases where “life involves an extreme

degree of pain, discomfort or indignity to a patient, who is sentiment but not competent and

who has manifested no wishes to kept alive” as being the type of cases where the courts have

accepted that it may not be in the best interests of a patient lacking capacity to be kept alive

artificially.

Minor: In case of children, future interests are particularly relevant. ie, things that will matter

significantly to their lives in the future. But if treatment would involve suffering or distress to

the child, these and others burdens must be weighed against the anticipated benefit, even if

life cannot be prolonged without treatment. In such cases medical intervention is unjustified.

This view was confirmed by the courts in the 1990 case of Re J (a minor) (wardship: medical

treatment17) in which it was held that treatment need not be given when the patient „suffered

from physical disabilities so grave that his life would from his point of view be so intolerable‟

that if he were able to make a sound judgment, he would not choose treatment.

The Court of Appeal in Charlotte Wyatt case18 said that „intolerable to the child‟ should not

be seen as additional to, but rather as one part of, the assessment of best interests. And also

held that “the judge must decide what is in the child‟s best interests.” In making that decision,

the welfare of the child is paramount, and the judge must look at the question from the

assumed point of view of the patient. There is a strong presumption in favor of a course of

action which will prolong life, but that presumption is rebuttable. The term „best interest‟

encompasses medical, emotional and other welfare issue.

17
[1990] 3 AllER 930
18
Portsmouth NHS Trust v. Wyatt (2006) 1 FLR 554

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In Re A (children) (conjoined twins) case19 hospital suggested an operation to separate

Siamese twins (Jodie and Mary) for saving the life of one child (Jodie) otherwise both will

die shortly. Here court perform a balancing exercise in determining was in the twins‟ best

interests, regardless of the parents religious objections, the scales come down heavily in

Jodie‟s favor. Court held that performing the operation would be the lesser of 2 evils and

should be permitted. The best interest of the twins was paramount rather than the interests of

the parents.20

Benefits

Health professional have a general duty to provide treatment which benefits their patients.

Benefit, in this context, has its ordinary meaning of an advantages or net gain for the patient

but is broader than simply whether the treatment achieves a particular physiological goal. It

includes both medical and other, less tangible, benefits. Such as:-

 Being able to interact with others

 Being aware of their own existence and having an ability to take pleasure in the fact

of that existence; or

 Having the ability to achieve some purposeful or self-directed action or to achieve

some goal of importance to him or her.

If treatment is unable to recover or maintain any of these abilities, this is likely to indicate

that its continued provision will not be a benefit to the patient. If any one of these abilities

can be achieved, then life prolonged treatment may be of benefit and is important to consider

these factors within this context of the individual‟s own wishes and values where there are
19
[2000] 4 AllER 961
20
Court further held that, the operation would be lawful under the criminal law under the doctrine of

necessity, and as the primary purpose was not to kill Mary.

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known, in order to assess whether the patient would, or could reasonably be expected to,

consider life-prolonging treatment to be beneficial.

In Airedale NHS Trust v. Bland21 court said that “it is perfectly reasonable for the responsible

doctors to conclude that there is no affirmative benefit to Bland in continuing the invasive

medical procedures necessary to sustain his life.”

Futility

Treatment is usually considered unable to produce the desired benefit either because it cannot

achieve its physiological aim or because the burden of the treatment are considered to

outweigh the benefits for the particular treatment is called futility treatment.

A physician has no ethical obligation to provide a life sustaining intervention that is judged

futile as defined previously, even if the intervention is requested by the patient or surrogate

decision maker. To force physicians to provide medical interventions that are clearly futile

would undermine the ethical integrity of the medical profession. If a physician decides to

withhold such an intervention, he or she has a responsibility to inform the patient or surrogate

decision maker of that decision and to explain the decision rationale. Doctor should also

reassurance that the patient will continue to receive all other care that is medically indicated

within the context of an overall treatment plan agreed upon for the patient.

If the patient or surrogate decision maker disagrees with the decision to limit the intervention,

he or she should have opportunity to transfer responsibility for the patient‟s care to another

physician who is willing to provide the disputed intervention in the same or another

institution.

21
[1993] 1 AllER 821

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Harm

The concept of non-maleficence is embodied by the phrase, do no harm. Many consider that

should be the main or primary consideration in health care. It is more important not to harm

your patient, than to do them good. Patient may be harmed both by the withdrawal of

treatment too quickly and by prolonging treatment beyond the point where it is able to benefit

the patient. Patient with capacity or patients whose views are known, are also harmed by

treatment being provided or withdrawn against their wishes. It is considered as an

infringement of their basic rights and possibly a criminal offence and the tort of battery.

Jehovah‟s witnesses, who have refused a life prolonging blood transfusion, are harmed by

being given a transfusion against their stated wishes even though that may save their life.

Patients do not have the right to demands treatments that are clinically inappropriate but if

there is evidence that the individual would view a particular procedure as offering benefit, the

view should be taken into account.

Resource management

Health professionals have an ethical duty to make the best use of available resources. This

inevitably means that same patients, whose lives might be prolonged, may not receive all

possible life-prolonging treatment. Decisions must represent an appropriate balance between

the clinical and resource need of different patients.22 For example, patients or their families

request life-prolonging treatment to be continued for as long as technically possible, even

though there is no hope of recovery. Complying with such requests could be at the expense of

other patients who have a reasonable chance of recovery if treatment is provided. Taking

22
Withholding and withdrawing life sustaining treatment - Guidance for decision making, British

Medical Association, 3rd edn, 2008. P.27

14
account of all relevant factors, the decision about whether to offer treatment is ultimately

made by the clinician in charge of the patient‟s care with advice from the rest of the health

care team. This is part of their role as „gatekeepers‟ to treatment, which obliges health

professionals to balance the ethical and resource needs of different patients.

Conclusion:

Withholding and withdrawing of life support instruments is a complex and difficult process

that requires continuous planning and management. The health care team should obey the

ethical principles for arriving at a best decision regarding withholding and withdrawing life

sustaining treatment. To accomplish the object behind the autonomy principle the physician

should made a clear communication with the patient or the patient‟s family and respects their

decision also. According to beneficence principle a physician is expected to act in the best

interest of the patient and family. Therefore he should consider the quality of life and benefits

that can be provided through the treatment. Physicians are supposed to do no harm to his

patients. It requires the physician not to act contrary to the patient‟s values and perspectives.

Distributive justice principle ensures that patients in similar circumstances should receive

similar care. The physician may thus provide treatment and resources to one with a

potentially curable condition over another for whom treatment will be futile.

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