Chapter 10
The Critically Ill Patient
A The Legal Perspective
Linda Delany
This chapter examines the legal aspects of the dilemmas inherent in nursing
critically ill patients. Caring for patients whose life hangs in the balance or whose
prognosis is very uncertain, generates challenging problems which the law has
sought to address. In recent years, a number of court rulings have provided new
guidance in this sphere by refining the basic negligence and consent principles
which apply in health care. Thanks to the Human Rights Act 1998, the European
Convention for the Protection of Human Rights and Fundamental Freedoms has
also begun to make its influence felt. Other legislation has been sparse, but, by
contrast, there has been no shortage of authoritative guidelines emanating from
government departments, the Royal Colleges, the UKCC and the professional
associations. Nurses, midwives and health visitors cannot afford to neglect any of
these developments.
To reflect the law's own approach to treatment decisions in critical illness cases,
patients will, in this chapter, be divided into the following broad categories: babies
and young children, teenagers, adults able to make their own decisions and adults
unable to do so. The legal rules relating to each category will be examined
separately, but some general points can be made at the outset.
Firstly, nurses treating very ill patients should be clear about the criminal
implications of knowingly causing their death. Providing pain relief with drugs
which, as a side-effect, may shorten life, can be acceptable but acts aimed primarily
at hastening death are forbidden. Withdrawing treatment, in the knowledge that
death will result, can be legitimate, and is discussed in more detail in sections
10.1.2, 10.4.4 and 10.4.5.
Secondly, English law has traditionally extended a large measure of professional
freedom to doctors. The courts have felt unable to dictate to doctors and have
refused to let patients do so. Coercive remedies against doctors have simply not
been made available, on the grounds that doctors should not have to choose
between their professional judgement and a court order 4Re J a minor) wardship:
medical treatment)41990). This is apt to cause conflict particularly in cases
involving children, whose parents oppose the medical decision to withhold
treatment. Even in such situations, however, the courts have remained steadfast in
their approach. Nurses may have to absorb the tensions which obviously arise on
such occasions. On a more positive note, they may be able to mediate between the