The Liverpool Care Pathway has often been criticised and, following an independent review, is to be phased out. Richard Jolly looks at the problem areas and what will replace the framework

Richard Jolly

Richard Jolly

The recommendation by the government commissioned independent review, chaired by crossbench peer Lady Neuberger, that the Liverpool Care Pathway be phased out is, arguably, not surprising given the review’s findings and the controversy the LCP has attracted in the media.

‘It can be extremely difficult for doctors to know when someone is nearing the end of their life’

While the scheme can offer a peaceful and dignified death, the review concluded that there are significant problems with its implementation. These include poor training and sometimes a lack of compassion on the part of nursing staff, with junior doctors expected to make life and death decisions that were beyond their competence after hours and at weekends.

The Department of Health set up the review in response to public concerns that the LCP was being used to hasten death, to clear beds and save money, and that patients or their families were not being consulted.

Originally developed at the Royal Liverpool University Hospital and the city’s Marie Curie Hospice in the 1990s, the pathway aimed to provide a model of best practice in the care of dying patients, akin to that which they would receive in a hospice. The pathway allows doctors to withdraw treatment or tests deemed to cause unnecessary suffering at the end of life, which can include anything from CPR to artificial feeding via tubes, with the use of sedation to alleviate distress. The pathway was recommended as best practice in England, Scotland and Northern Ireland.

Bones of contention

Although the idea that, for patients who are beyond help, allowing them to die with as much dignity and as little distress as possible is entirely laudable, death is not an exact science and it can be extremely difficult for doctors to know when someone is nearing the end of their life. This has resulted in patients being put on the LCP and then taken off it.

‘There should never be an occasion when the family is not informed that a diagnosis has been made that a patient is dying’

In addition, critics have argued that, given that it is almost impossible for a doctor to predict accurately when death is imminent, placing a patient on the pathway may in itself make death imminent. 

The LCP states that, because it is not a treatment but a framework for good practice, written consent is not needed. Despite this, it is made clear that if the plan is considered it should always be discussed with the family or the carer. The discussion should take place with the patient if this is possible.

The recommendation confirms that when a family member or carer is named as the patient’s main contact, there should never be an occasion when that contact is not informed that a diagnosis has been made that a patient is dying.

Tick box culture

Intrinsically linked to the issue of consent is that of capacity to give that consent. The LCP does not offer any guidance on how a test for capacity should be carried out, leading − inevitably − to one of the biggest criticisms levelled at the scheme: staff have simply ticked boxes without carrying out a thorough assessment of this and other issues, and failed to take the circumstances of each individual patient into account.

Criticism of a perceived tick box culture were strengthened by the media’s reporting of financial incentives being offered to hospitals putting people on the pathway. Across the healthcare system, financial incentives are built in to encourage service providers to adopt best practice under the commissioning for quality and innovation system.

In terms of the patient’s best interests, the LCP is founded on the concept of there being total clinical agreement and collaboration between all the health professionals involved in the patient’s care. From a legal point of view, complete agreement is not required, though it is of course desirable.

‘In phasing out the LCP, the government has confirmed it will require all hospitals to review the care of dying patients

While the ultimate decision as to what treatment is in the best interests of the patient lies with the leading treating clinician, the pathway’s lack of any process for dealing with situations where there is clinical disagreement represents a failure to recognise what is a commonplace medical scenario. It also makes investigations into the rationale behind the decision making process for an individual patient much less clear.

Moving on

So what next? The review makes 44 recommendations, including phasing out the LCP over 6-12 months. It recommends that only “senior clinicians” make the decision to give end of life care with the healthcare team, and that no decision should be taken out of hours without very good reason.

In addition, there should be no incentive payments to put patients on end of life care. As more junior doctors have made many end of life decisions, it is likely some senior clinicians will require training before they can fulfil this role.

In phasing out the LCP, the government has confirmed it will require all hospitals to review the care of dying patients, with all having a senior named doctor in charge of their care in future.

Those who are terminally ill and treated after the withdrawal of the LCP should expect to receive the same care as they would have received under the pathway but this should be delivered via an end of life plan drawn up with the involvement of themselves and their families. Crucially, if it is agreed that life is nearly at an end, the review says no attempt to offer further treatment should be made.

Richard Jolly is a partner at national law firm Weightmans LLP