The Weekly Update - 2nd October 2009

Greetings. Well we're now three weeks on and I'm still making regular posts. This is a good sign!!

A few stories have caught my eye in the past week. I am only going to comment on one today, however. I have my colleague to thank for drawing my attention to the first story on my list.

The Case of Kerrie Wooltorton
The following facts are as reported in a host of newspaper articles available online, principally:

Anon 'Doctors 'Forced' to Allow Suicide', BBC News Online, 1st October 2009 http://news.bbc.co.uk/1/hi/england/norfolk/8284728.stm

Anon 'Life Death and Ethics', Mail Online, 2nd October 2009 http://www.dailymail.co.uk/debate/article-1217582/MAIL-COMMENT-Life-death-ethics.html

Devlin, K. 'Doctors Who Ignore Directives can be Charged with Assault', Telegraph.co.uk, 1st October 2009 http://www.telegraph.co.uk/health/healthnews/6248195/Doctors-who-ignore-directives-can-be-charged-with-assault.html

Doughty, S.; Moult, J.; and Levy, A. 'Father of Suicidal Girl Who was Allowed to Die by the Law says He's Ashamed to be British', Mail Online, 2nd October 2009 http://www.dailymail.co.uk/news/article-1217559/Law-let-girl-kill-makes-ashamed-British.html

Levy, A. 'Suicidal Woman Allowed to Die After Taking Overdose Because Doctors Feared Saving Her Would Have Been Assault', Mail Online, 2nd October 2009 http://www.dailymail.co.uk/news/article-1217170/Suicidal-woman-allowed-die-taking-overdose-saving-life-assault.html

Scurr, M. 'Whatever Happened to the Principle That Doctors Must Always Save Lives?', Mail Online, 2nd October 2009 http://www.dailymail.co.uk/news/article-1217561/DR-MARTIN-SCURR-Whatever-happened-principle-doctors-save-lives.html

Smith, R.; Laing, A. and Devlin, K. 'Suicide Woman Allowed to Die Because Doctors Feared Saving Her Would be an Assault', Telegraph.co.uk, 30th September 2009 http://www.telegraph.co.uk/health/6248646/Suicide-woman-allowed-to-die-because-doctors-feared-saving-her-would-be-assault.html

On the 1st of October the papers were full of the story of Kerrie Wooltorton, 26, from Norwich. The story goes that Miss Wooltorton, who had a long history of depression linked to an apparent inability to have children, had decided to commit suicide by drinking anti-freeze. Having done so Miss Wooltorton called for an ambulance (it was suggested during the inquest into her death this was done not because she wanted to be saved but because she did not want to die alone). Miss Wooltorton was taken to Norfolk & Norwich University NHS Hospital Trust, she was clutching a letter, in effect a 'living will', in which she declared she did not want to be saved and was '100 per cent aware of the consequences'. After taking legal advice and seeking second opinions from other medical colleagues a consultant decided that Miss Wooltorton had the requisite capacity to refuse consent to treatment. Miss Wooltorton subsequently died. At the conclusion of the inquest which followed Miss Wooltorton's death the coroner recorded a narrative verdict in which he refused to blame the hospital for Miss Wooltorton's death.

This story has sparked furore in some of the national press ... well, in the Daily Mail at any rate. Dr Martin Scurr in particular mounts a particularly fierce attack against the decision not to treat Miss Wooltorton (http://www.dailymail.co.uk/news/article-1217561/DR-MARTIN-SCURR-Whatever-happened-principle-doctors-save-lives.html). In his article he notes:

"The tragic death of Kerrie Wolltorton has exposed a brutal truth: that the absurdities of the fashinable 'rights' agenda is undermining the integrity of the medical profession. Once, doctors knew that their primary duty was to protect their patients. today, however, the dogma of political correctness has obliterated such certainties."

Dr Scurr continues and makes no effort to hide his disgust at the outcome of this case:

"The central principle of the Hippocratic Oath is 'do no harm'. I would argue that, by allowing a patient to commit suicide and taking no steps to prevent her death, a doctor has contravened that oath ... I would like to think that, presented with this case, I would immediately have taken action by ordering that her stomach be pumped, regardless of any living will documents the patient might be carrying. The claim that Miss Wooltorton was in a balanced state of mind and therefore her wishes were paramount to seems to me almost surreal in its absurdity. By definition, a mother who wants to kill herself, particularly in such a horrible way as through the ingestion of the poison she used, is deeply disturbed and in desperate need of psychiatric help."

The legal position is pretty clear here. On a basic level, an adult patient who has the requisite capacity is entitled to refuse treatment, even if that refusal will ultimately result in their death - see Re T (Adult: Refusal of Treatment), [1993] Fam. 95 and Re B (Adult: Refusal of Medical Treatment) [2002] EWHC (Fam.) 429.

The long-standing common law position has since been restated in the Mental Capacity Act 2005 with s.1(4) of the Act making it perfectly clear that an individual is not to be deemed to lack the requisite capacity to have their refusal respected merely because they make and 'unwise' decision. This case, however, has an extra dimension to it, namely the existence of a 'living will'.

The medical team responsible for deciding not to treat Miss Wooltorton claim that the living will did not play a part in their decision not to treat. This makes sense because the team involved in her care, were convinced that she possessed the requisite capacity to refuse life-saving treatment. Living wills (also known as advance decisions) are only applicable once an individual has lost capacity to make the decision in question. It is, however, still worth clarifying what the legal position is when a healthcare professional is confronted with such a document.

Where an individual lacks capacity to make decisions about their treatment they can be treated without their consent. In such cases the health care professional can avoid a claim in battery by showing that they acted in the patient’s ‘best interests’ (in accordance with the best interests test contained in s.4 of the Mental Capacity Act 2005). It may be, however, that at some point they possessed capacity. If during that period they made a valid advance refusal of treatment then that advanced refusal is just as legally binding as if it had been made contemporaneously (s.26 Mental Capacity Act 2005) What criteria does this advanced refusal need to comply with in order to be valid?

The answer to this question can be found in sections 24-26 of the Mental Capacity Act 2005. An ‘advance decision’ can be made by any person after they have reached the age of 18 (S.24(1) Mental Capacity Act 2005). Subject to the provisions of s.25, the advance decision will apply once that person has lost capacity (S.24(1)(b) Mental Capacity Act 2005). The advance decision must specify the type of treatment that is being refused (this may be expressed in lay terms) and it may specify the particular circumstances in which the refusal will apply (which may also be expressed in lay terms) (See s.24(1) and s.24(2) Mental Capacity Act 2005). These issues are to be determined 'at the material time', although the meaning of this expression is not discussed any further in the Act. Presumably it means at a time where a) a decision has to be made about the treatment of the patient to which an advance decision may apply, and b) the patient lacks capacity.

It is also worth noting that the Code of Practice which accompanies the Act points out that an advance decision is not precluded from being valid merely because it has been expressed verbally rather than in writing. The exception to this rule is where the advance decision contains a refusal of life saving treatment (S.25(6) Mental Capacity Act 2005). Clearly, however, it may be beneficial if the advance decision is made in writing as this will constitute clear evidence a) that an advance decision exists, and b) exactly what the patient’s wishes are (See Department for Constitutional Affairs ‘Mental Capacity Act 2005 Code of Practice’ (London: TSO, 2007) accessible online at http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf at pp.164-165).

Even if the advance decision appears on the face of it to be valid, it will not be applicable to treatments not specified in the advance decision (S.25(4)(a) Mental Capacity Act 2005), if the circumstances the patient finds themselves in are not those specified in the decision (S.25(4)(b) Mental Capacity Act 2005), or if there are reasonable grounds for believing that the current circumstances had not been anticipated by the patient and, if they had been anticipated by the patient, this would have affected their decision (S.25(4)(c) Mental Capacity Act 2005. The explanatory notes which accompany the Act give the example of a patient who needs treatment and the treatments that are now available offer a much better outlook for the patient than those that were available at the time the advance decision was made).

Crucially, a health care practitioner will not incur any liability for treating an individual in a manner which goes against an advanced decision if he is not satisfied that an advance decision exists which is valid and applicable to the treatment (S.26(2) Mental Capacity Act 2005). Neither will a healthcare professional incur liability if they withhold or withdraw a treatment from the patient on the grounds that they reasonably believe that an advance decision exists which is valid and applicable to the treatment (S.26(3) Mental Capacity Act 2005). If, however, a medical professional goes ahead and treats a patient in spite of a valid advance directive which is applicable to the circumstances, their failure to respect the patient’s wishes could see them facing a claim in tort for battery or a charge of assault under the criminal law.

It seems, therefore, that the law continues to respect the autonomous wishes of competent individuals in the sphere of medical treatment, even when such decisions have fatal consequences. The question we perhaps ought to ask ourselves, however, is whether the law has 'tipped the balance' too heavily in favour of autonomy in this regard. On that question I leave you with two quotes. First this quote from the Mail editorial on this story (http://www.dailymail.co.uk/debate/article-1217582/MAIL-COMMENT-Life-death-ethics.html):

"With an obscure bit of badly drawn legislation [i.e. the Mental Capacity Act 2005], we've managed to turn upsidedown thousands of years of medical ethics and shamefully encouraged patients to die."

A sentiment echoed by Dr Martin Scurr (http://www.dailymail.co.uk/news/article-1217561/DR-MARTIN-SCURR-Whatever-happened-principle-doctors-save-lives.html) who observes:

"In the brave new world envisioned by the Wooltorton case, a successful medical intervention is one in which the patient ends up killing himself, whereas failure is the prevention of suicide ... Anyone it seems can scribble their signature on a document and then put an end to it all, with the state only allowed to cheer from the sidelines."

I look forward to hearing your thoughts on this story.