Doing What’s Best

This chapter explores whether controlled non-heart-beating organ donation (NHBOD) can be in the best interests of an intensive care patient who has expressed a wish to become an organ donor. It begins with an acknowledgment of the concerns health professionals may have about NHBOD before providing an analysis of medical law in the context of decision making and best interests. It concludes that the law’s interpretation of best interests means there will be some situations where NHBOD will be in the best interests of patients in intensive care. It also considers the lack of legal certainty regarding the necessary observation time between the cessation of heart beat and the commencement of organ retrieval.

Promoting the Best Possible Death

What are the best interests of terminally ill patients in intensive care who lack capacity to decide for themselves? At what stage should their care be considered futile? Although this important question arises at a crucial moment in a person’s life, there is room for a considerable range of responses. What is the relevance, for example, of a belief in the sanctity of life, the likelihood that the patient will get better, the suffering and indignity caused by treatment, the wishes of patients and their relatives, or the interests of other needy patients? In the past, these difficulties were often quietly settled by doctors, guided, when possible, by patients and by their relatives. Now, when disagreement leads to dispute, the courts have been required to provide solutions of their own. In doing so, they grapple with the balance between the patient’s subjective beliefs and wishes (assisted by their relatives), and doctors’ experience of the challenges further treatment may cause the patient. We consider how the law and clinical practice have evolved and the framework of procedures and values within which these troubling cases should be considered.

Adults Who Lack Capacity to Consent and Deprivation of Liberty

The basic presumption of the Mental Capacity Act that an individual has capacity to make decisions regarding treatment is frequently challenged within intensive care practice where individuals are often incapacitated due to the nature of their condition or treatment for it. Because many conditions are life-threatening, treatment is frequently administered on the basis of an assumption that it provides an overall benefit to the person and that their interests are best served by preservation of life. There is now a statutory definition of best interests although factors in its determination can at times be opaque, which suggests a gradual move towards the US-based ‘substituted judgement’ test. An individual can be lawfully prevented from leaving the intensive care unit while receiving intensive care treatment provided that treatment is given in good faith and is materially the same as would be given to a person of sound mind with the same physical illness.

Pandemic Planning after Covid-19

What happens when demand for intensive care exceeds the supply of beds available? Covid-19 has brought these questions to the fore in an exceptionally acute fashion, highlighting the multi-level response required. This chapter, written as the pandemic was developing in the spring of 2020, when the UK and, indeed, most of the world was in lockdown to minimize social interaction, addresses these dilemmas in three sections: (1) the nature and extent of the demand for intensive care and the government’s response to Covid-19 (up until April 2020), (2) the necessity for a procedural framework for decision making to promote transparency, fairness, and consistency, and (3) the models of clinical triage to achieve the best results.

Social Media in Intensive Care

The use of social media in intensive care has increased steadily since their development in the early 2000s. Usage of social media platforms are now part of everyday life for a sizable proportion of the world’s population. The success of social media relies upon developing a culture where openness and sharing are the norm. This is at odds with traditional medical ethical values such as confidentiality and privacy. Social media can be used for both social and professional purposes, which can lead to unhelpful blurring of lines between personal and professional roles. This chapter discusses guidelines for use of social media for communication purposes by healthcare professionals in the United Kingdom, the benefits and pitfalls of the use of social media for medical education, and the legal aspects of use of social media with respect to intensive care.

DNAR: To Resuscitate or Not to Resuscitate?

‘Do not attempt resuscitation (DNAR)’ or ‘do not attempt cardiopulmonary resuscitation (DNACPR)’ orders have been regarded as the best way to ensure that patients are not resuscitated in clinically inappropriate circumstances, or against their wishes. However, the use of DNAR orders has become contentious in situations where individuals have not been informed or consulted before an order has been made, and recent legal cases have highlighted the need for good communication and record keeping. This chapter considers the legal and ethical issues associated with DNAR and DNACPR orders, including the rights of patients, ethical guidance and policies associated with their use, and regional and national variations in practices surrounding their use and implementation. After discussing evidence of misinterpretation and misunderstandings of the implications of such orders in clinical practice, which have an impact on patients’ autonomy and well-being, the chapter will conclude that compliance with ethical and professional guidance must be consistent and mandatory, and suggest the introduction of legal sanctions for non-compliance.

Diagnosing Death

It was not always doctors who diagnosed death. Advances in resuscitation and fears of premature burial led to doctors having a duty to diagnose death in a safe and timely way. The birth of intensive care in the twentieth century demonstrated that it was possible for the heart to keep beating even after the brain had permanently ceased functioning. A worldwide, unifying, brain-based definition of death could be termed ‘permanent brain arrest’. The clinical characteristics of permanent brain arrest would be the permanent loss of capacity for consciousness and loss of all brainstem functions (including the capacity to breathe), which might arise from primary brain injury or secondary to circulatory arrest. Three sets of criteria are used by doctors to diagnose death, depending on the clinical circumstances: forensic, circulatory, and neurological. All three sets of criteria point to the same brain-based definition of death. While there is widespread consensus for these standards—in practice and in law—they are not without criticism.

Conflicts of Interest

Definition of conflict of interest: ‘When an individual, a group of individuals or an organization has competing interests or loyalties.’ This simple definition has applications in most aspects of daily living, so it is unremarkable that in almost every aspect of the administration of healthcare it becomes a significant consideration. Identification or recognition of where a conflict of interest exists is not always easy. Once identified, in many if not most circumstances it necessitates compromise. In all cases the overall intention should not be subsumed by the interest of the individual or the organization. The two outstanding areas usually highlighted in medicine are those of nepotism in the job market and the interactions between medicine and industry. The former is allegedly of only historic interest due to rigorous, almost draconian, selection procedures. The latter has recently become both a recognized problem and the bête noire of the profession.

Spanner in the Works or Cogs in a Wheel?

In what circumstances should medical treatment decisions concerning a child be treated differently from any one of a myriad of important decisions that parents routinely make for their children without any state intervention? Who is best placed to make such decisions and on what basis? Why does conflict arise and how can it be minimized? This chapter deals with the sensitive and complex question of decision making for critically ill children. An analysis of the case law reveals that parents are generally believed to be the best-placed to make a shared decision with the medical team focusing on the child’s best interests. However, when conflict arises, it is necessary to seek court intervention. I examine how the framework of the child’s best interests includes consideration of what the child personally may want, yet this begs the question why is the judge’s interpretation of what the child would want any more valid than that of the parents or the doctors? Rejecting the claim that the court should only be involved when it is shown that the parents’ decision on the child’s treatment would cause harm to the child, I suggest framing the question as a ‘not against the child’s interests’ test, or what is ‘compatible’ with the child’s interests. This would alleviate the perception that it is a binary decision between a right and wrong choice, and better serve the overall objective of minimizing conflict. Focusing on how the decision is taken is ultimately just as important as who makes the decision.

Refusing and Demanding Medical Treatment in Intensive Care

This chapter examines the interactions in England and Wales between adult patients with capacity and the clinical team as regards the refusal of, or requests for, specific treatments. It sets out how to best determine what might constitute harm for that individual patient, and how to appropriately communicate the risks of having (or not having) the treatment. It provides an overview of both the professional guidance and ethical framework in which decisions are made, and the law and how it might constrain (or allow) them to act in certain ways, noting that professional guidance, ethical argument, and the law sometimes pull in different directions, and sometimes inform each other. It also addresses the position of such a patient seeking to project forward their decisions by way of advance decisions to refuse treatment. Co-written by a clinician and a lawyer, and placing the law within the setting of the intensive care unit, the chapter explores the dilemmas that arise when abstract principles meet clinical realities.