Welcome to this week’s blog post. A few stories have caught my attention this week. First up is a story from Australia.
The Case of Christian Rossiter
The BBC online news service announced on Monday 21st September 2009 that Christian Rossiter, a 49 year old Australian quadriplegic, had died ('Australian Dies After Court Win' BBC News Online, Monday 21st September 2009 http://news.bbc.co.uk/1/hi/world/asia-pacific/8266063.stm). What made Christopher's death so newsworthy was that last month a court in Perth had ruled that Mr Rossiter's carer's could lawfully stop feeding and hydrating him even though that would, of course, inevitably result in his death ('Australian Man Wins Right to Die' BBC News Online http://news.bbc.co.uk/1/hi/world/asia-pacific/8200931.stm).
Whilst this is an Australian case it certainly does not prevent us from considering how the courts in England and Wales might deal with a similar case.
For me the key issue relates to consent. It is a well established principle that an adult (that is to say anyone aged 18 or over) who has the capacity to give a valid consent to treatment can also refuse to submit to any proposed course of treatment. This remains the case even if that refusal will ultimately result in their death. Authority for that proposition can be found in a number of cases such as Re T (Adult: Refusal of Treatment), [1993] Fam. 95 and Re B (Adult: Refusal of Medical Treatment) [2002] EWHC (Fam.) 429.
This freedom to refuse treatment can, however, present medical professionals with a bit of a dilemma. On the one hand they know that they have to respect the individual's 'right' to make an autonomous decision. On the other hand allowing an individual, who is not terminally ill and may go on to live for many years (albeit with a quality of life that many might view as unbearable), to die seems to contravene the ethical obligations of beneficence (i.e. the ethical requirement for medical professionals to do the best for those in their care) and non-maleficence (i.e. the ethical requirement for medical professionals to not deliberately harm those in their care).
On top of that ethical conflict, we have a legal conflict. On the one hand, treating that individual without their consent can result in an action based in negligence or, in extreme cases in the criminal law offence of battery (Re B (Adult: Refusal of Medical Treatment) [2002] EWHC (Fam.) 429 is a good example of a case where the patient's refusal of treatment was wrongly ignored despite the fact she had the requisite capacity to do so. On the other hand all medical professionals (and of course carers) owe a duty to treat those within their care with reasonable skill and care.
This very conflict, and the difficulty the courts have in resolving it, was all too evident in the case of Airedale National Health Service Trust v Bland, [1993] 1 All ER 821. Of course whilst there are tenuous similarities between the case of Bland and the case of Christian Rossiter, Anthony Bland was unconscious and lacked capacity. Christian Rossiter, on the other hand, was conscious and had the requisite capacity to give a valid refusal. Whilst Anthony Bland had no way of making the court aware of how he would wish to be treated if he had ended up in a Persistent Vegetative State (‘PVS’), Christian Rossiter was able to express his wishes clearly and in person.
Secondly, the court in Bland ruled that food and hydration was to be viewed as basic medical treatment and, as such, it was lawful to withdraw it if such treatment could no longer be deemed to be in his best interests (at this time the issue would have been determined in accordance with the principles set out in Re F (Mental Patient: Sterilisation), [1990] 2 AC 1 - though now, of course, we'd refer to the best interests test contained in s.4 of the Mental Capacity Act 2005)
It was undoubtedly challenging enough for the court to rule that it was not in the best interests of a patient who was unconscious and in a (‘PVS’) to be kept alive, but how much more challenging must such a decision have been where that individual was a living, breathing person stood before them. To some extent those involved in the decision found themselves being asked to make a decision about the value of keeping Christian alive.
In any event, if such a situation arose in England and Wales, the carers suddenly find themselves in a ‘catch 22’ situation. If they continued to feed individuals such as Christian Rossiter they would be in breach of his autonomous ‘rights’. Similarly, however, if they respected Christian’s wishes and allowed him to die they could face a charge of gross negligence manslaughter (see Stone and Dobinson [1977] 2 All ER 341). Thankfully, however, there is a course of action open to the carers in such a case.
Over the years the courts have consistently made the point that where medical professionals are faced with such dilemmas they should apply to the courts for a declaration that the proposed course of conduct is lawful (this was certainly the approach that was taken in Bland). We must always be aware of the fact, however, that such declarations are made in civil courts, thus questions arise about the bearing they should have on any subsequent criminal prosecution (see Bridgeman, J. ‘Declared Innocent’ (1995) 3 Medical Law Review 117.
Guidance on Prosecutions under s.2(1) Suicide Act 1961
As mentioned in my previous blog the Director of Public Prosecutions published guidance on Wednesday 23rd September 2009 designed to clarify the factors that the Director of Public Prosecutions would take into account when deciding whether to authorize any prosecution under s.2(1) Suicide Act 1961. This document can be accessed at http://www.cps.gov.uk/consultations/as_consultation.doc.
When Crown prosecutors are trying to decide whether or not to initiate a prosecution they must make reference to the Code for Crown Prosecutors (accessible at http://www.cps.gov.uk/publications/code_for_crown_prosecutors/index.html). This provides that prosecutors can only initiate such proceedings where:
1) There is sufficient evidence to provide a realistic prospect of a conviction; and
2) The prosecution is needed in the public interest.
When considering the evidential stage of the test, the guidance provides that prosecution needs to prove that:
- The victim committed or attempted suicide; and
- The suspect assisted them in doing so; and
- The suspect intended to assist the victim to commit or attempt to commit suicide; and
- The suspect knew that those acts were capable of assisting the victim to commit suicide.
When considering the public interest stage of the test, the guidance provides that prosecutors must consider both the public interest factors set out in the Crown Prosecutors Code and the public interest factors contained in the guidance. Relevant factors include (but are not limited to):
- Where the victim’s capacity to make an informed decision was adversely affected by a recognized mental illness or learning difficulty;
- The victim did not have a clear, settled and informed wish to commit suicide;
- The victim was not suffering from a terminal illness/a sever and incurable physical condition/a severe degenerative physical condition;
- The suspect was motivated by factors other than compassion;
- The victim was actually physically able to undertake the act that consisted the assistance themselves;
- The fact that the assistance was provided by somebody other than a spouse, partner, close relative or close personal friend of the victim; and
- The suspect was paid to care for the victim in a care/nursing home environment.
Conversely, the presence of the following factors (and others) may indicate that it is not in the public interest to prosecute a suspect for the offence of assisted suicide:
- The suspect was motivated wholly by compassion;
- The suspect was the spouse, partner, close relative or close personal friend of the victim;
- The suspect had previously sought to dissuade the victim from taking the course of action which resulted in the victim’s suicide;
- The victim was suffering from a terminal illness/a sever and incurable physical condition/a severe degenerative physical condition;
- The actions of the suspect might be characterised as reluctant assistance in the face of a determined wish on the part of the victim to commit suicide; and
- The suspect fully assisted the police in their enquiries into the circumstances surrounding the suicide or the attempt and his or her part in providing assistance.
It is important to note that the guidance clearly states that some factors will be more influential than others in determining whether or not it is in the public interest to prosecute (consult the guidance first hand for more information on this point).
Key things the reader needs to be aware of in relation to this guidance:
- The guidance is merely interim guidance. It is currently in a consultation phase. Nevertheless, the guidance comes into force immediately and will apply to all relevant decisions between now and the eventual publication of the final guidance which is expected in the Spring 2010.
- The guidance does not change the law. It is still an offence to attempt another to commit suicide. The guidance merely clarifies the situations in which the Director of Public Prosecutions may decide to prosecute.
The Case of Rachael Gilderdale
Turning once again to the BBC, BBC Breakfast News reported on an intriguing story on Friday 25th September 2009. The story is of Jeanette Gilderdale who had been advised that her 13 year old daughter was suffering from skin cancer and had merely six months to live. Jeanette decided, however, to withhold this information from both Rachael and virtually all of Rachael’s friends and family (although Jeanette had told her mother, Rachael’s grandmother) – see ‘Mother on Cancer Secrecy Decision’ accessible at http://news.bbc.co.uk/1/hi/health/8274168.stm
Jeanette makes a number of pertinent points explaining her reasons for withholding this information from her daughter, including:
- The desire for her child to have a ‘normal’ life, that is to say to behave normally and be treated normally and not to be known as ‘that girl who has got cancer and is going to die’;
- As a mother it was her duty to ‘protect’ her daughter;
- If she had been in her daughter’s position she would not want to have been advised about the fact she was suffering from a terminal illness and only had a short time left to live;
- She did not believe that her daughter was old enough to be told about the diagnosis/prognosis;
- She was concerned that informing her daughter of the diagnosis/prognosis would have had a detrimental impact on her daughter’s mental health and would have led to her daughter ‘giving up’ on life (it is worth noting that Rachael actually lived for a further 3 and a half years before finally succumbing to her illness).
This is a really interesting case which raises all sorts of legal and ethical questions in my mind, not least of all relating to the rights of children to be involved in decisions affecting their health along with broader issues surrounding those situations where a medical professional decides not to disclose certain information to a patient on the grounds that such a disclosure might harm the patient mentally and/or physically. In both cases we are witnessing paternalistic judgments about whether disclosure would be in the affected party’s best interests.
I look forward to hearing the thoughts of those who read this blog on this case, and indeed any of the other cases covered in this post.
