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.

The Weekly Update - 25th September 2009

Introduction
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.