Ethical and legal considerations on the ICU
Dr John Griffiths DICM MRCP FRCA MA
Over the last 20 years, it has become increasingly clear that most patients dying in the ICU do so following some limitation or withdrawal of life-sustaining therapy. The SUPPORT study suggested that patients dying on the ICU often did so in considerable discomfort while undergoing interventions that they specifically rejected. This was not appreciably altered by the provision to clinicians of information on prognosis and patient preferences. There has subsequently been considerable interest in ethical considerations on the ICU, such as advanced directives and pro-active ethics consultations. These considerations offer some, although perhaps limited, hope for improved end-of-life care.
Focus on ethical principles
A number of ethical and legal theories and principles are relevant when considering treatment decisions at the end of life. The important legal considerations are given in Appendix 1.
Sanctity of Life Doctrine
The argument underpinning this doctrine is that all human life has worth and therefore it is wrong to take steps to end a person's life, directly or indirectly, no matter what the quality of that life. This is in keeping with both traditional codes of medical ethics and a general perception of what doctors and other health professionals should do - that is, ‘save and preserve life’. One challenge to this principle in the context of health care is to ask ‘should life be preserved at all costs?’ Moreover, is there no place for consideration of quality of life? One of the problems with considering quality of life is the question of how this is defined and by whom. An objective view of someone's life may be very different to the view of the person who is living that life. However, this problem does not remove the challenge to the sanctity of life doctrine.
Respect for autonomy
The principle for respect for autonomy acknowledges the right of a patient to have control over his or her own life, including decisions about how his or her life should end. Competent persons should be able to refuse life-saving treatment in both current situations and future foreseeable situations. Does respect for autonomy mean that a patient can request treatment that the clinician does not think is in his or her best interests, or treatment that is considered futile? In these situations, the principle of respect for autonomy comes into conflict with other ethical considerations, such as justice or non-maleficence.
Treatment should not be given if it deprives others of greater benefit. This bears on the wider question of resource allocation, which in turn impacts pragmatically on clinical decisions.
A duty not to harm (non-maleficence)
Treatment should not be given if it is likely to cause more harm than good. In codes of medical practice, the principle of non-maleficence (“primum non nocere”) has been a fundamental tenet. This forms the basis for many risk-benefit decisions on the ICU. In end-of-life decisions, the question of how much harm is caused by the treatment needs to be considered, as does the question of whether death itself is always harm.
A duty to act in the patient's best interest (beneficence)
Treatment should only be given if it is likely to benefit the patient. This is the basis for withdrawing intensive care in futile cases, or (at the other end of the spectrum) in patients who are sufficiently well not to require intensive care. It also underpins the doctrine of double effect.
Doctrine of double effect
The doctrine of double effect argues that there is a moral distinction between acting with the intention to bring about a person's death and performing an act where death is a foreseen but unintended consequence. The doctrine of double effect provides that performing an act that brings about a good consequence may be morally right, even though the good consequence can only be achieved at the risk of a harmful side effect.
Acts and omissions distinction
The acts and omission distinction argues that there is a difference between actively killing someone and refraining from an action that may save or preserve that person's life. In a medical context, this distinction would mean that a doctor could not give a patient a lethal injection to end his/her life, whatever the circumstances, but could withhold treatment that may sustain it. Withholding treatment would only be permissible if the patient's quality of life was so poor, and the burden of treatment so great, that it would not to be in the patient's best interests to continue treatment. For example, it may be permissible not to ventilate a patient if he or she was in chronic respiratory failure, or not to use tube feeding if he or she was in a persistent vegetative state.
Key learning points
- An understanding of key ethical considerations is important for ICU practitioners
- Advance directives and surrogates are increasingly well recognised.
- ICU clinicians must neither take over nor repudiate responsibility in end-of-life decision-making
- End-of-life decisions should be individual to each patient
- The advice of ethics committees and relevant professional bodies may be necessary to guide the decision making process.
Prendergast TJ, Claessens MT, Luce JM.
A national survey of end-of-life care for critically ill patients.
Am J Respir Crit Care Med 1998; 158: 1163-1167.
The SUPPORT Principal Investigators.
A controlled trial to improve care for seriously ill hospitalized patients.
JAMA 1995; 274: 1591-1598.
Ravenscroft E, Bell M.
End of life decision making with intensive care - objective, consistent, defensible?
J Med Ethics 2000; 26: 435-440.
Advance directives are the solution to Dr Campbell's problem of voluntary euthanasia.
J Med Ethics 1999; 25: 245-246.
Henig NR, Faul JL, Raffin TA.
Biomedical ethics and the withdrawal of advanced life support.
Ann Rev Med 2001; 52: 79-92.
Advance statements about medical treatment - code of practice, BMA, April 1995
The Patients Association. Advance Statements about Future Medical Treatment. A Guide for Patients (1996)
Eschun GM, Jacobsohn E, Roberts D, Sneiderman B.
Ethical and practical considerations of withdrawal of treatment in the intensive care unit. Can J Anaesth 1999; 46: 497-504.
Appendix 1: Legal Considerations
The legal position on end-of-life issues is clear but the application of the legal principles to actual cases can cause difficulty. The legal principles can be seen to derive from some of the ethical principles discussed above.
- An omission to act that (intentionally) results in the patient's death is permissible where it is not in the patient's interests to continue treatment (Airedale NHS Trust v Bland  1 All ER 821).
- Court approval should be sought in all cases where treatment is proposed to be withheld / withdrawn from a patient in Permanent Vegetative State (Airedale NHS Trust v Bland  1 All ER 821).
- Withholding and withdrawing treatment are both considered omissions to act.
| Bland (Airedale NHS Trust v Bland  1 All ER 821) |
Anthony Bland was 21 years old when overcrowding at the Hillsborough football stadium led to him being badly crushed. He was left permanently unconscious, in a persistent vegetative state. Three years later, the hospital Trust applied to the court for a ruling whether it would be lawful to discontinue artificial hydration and nutrition, resulting inevitably in his death.
The House of Lords considered that:
- Artificial nutrition and hydration is regarded as a form of medical treatment.
- There is no distinction between an omission to treat a patient (withholding) and discontinuance of treatment once commenced (withdrawing).
- In making the decision whether or not to provide medical treatment the question to be asked is whether it is in the best interests of the patient that his life should be prolonged.
- Previously stated wishes of the patient should be taken into account in the assessment of best interest.
- A competent patient cannot request that a positive act is taken to end his/her life (R (on the Application of Pretty) v DPP  1 All ER 1). This would amount to assisted suicide. No right of self-determination in relation to death is created by the Human Rights Act 1998.
| Pretty (Pretty v UK (Application 2346/02)  2 FLR 45) |
Dianne Pretty suffered from motor neurone disease which left her paralysed. She wanted her husband to be able to assist her suicide without fear of prosecution (assisting a suicide is a crime under the Suicide Act 1961) so that she could choose the time of her death and die with dignity. She argued that Article 2 (right to life) of the European Convention on Human Rights protects the right to life and the right to choose the manner of death.
However, the House of Lords and the European Court did not find that Article 2 created a right to die and indeed that the need to protect vulnerable citizens justified the prohibition of assisted suicide.