Organ Donor Error Pompts Calls for Review

A big story has broken in the news today (Sunday 11th May 2010) surrounding the UK organ donor register. Initial reports suggest that up to 800,000 people registered on the UK donor register may have had their preferences about which organs they wished to donate recorded incorrectly. Apparently only people in Scotland, England and Wales who had registered as donors using their driving licence application form were potentially affected.

As a direct result of this confusion the UK tranplant authority has confirmed 21 cases in the last 6 years in which the wrong organs may have been taken from donors (although they acknowledge there may be further, as yet unidentified, cases). The authority also confirms that although the families of the deceased donors involved had given their consent to the removal of, and use of, their loved one's organs the donation may not actually have been in accordance with the deceased's actual preferences. This is hugely significant from a legal perspective.

Section 1 of the Human Tissue Act 2004, which needs to be read in conjunction with Schedule 1 of that Act, makes it clear that the removal of an organ and its use in a transplant will only be lawful if 'appropriate consent' has been obtained. Where the organ donor is deceased the fact that the deceased registered on the organ donor register prior to their death is deemed to be acceptable.

Furthermore, s.3(6) Human Tissue Act 2004 makes it clear that the fact the deceased has given consent to the use of their organs is determinative of the matter. Nevertheless it is good practice to consult the deceased's family, advise them that their loved one has consented to the use of their organs in this way and seek the family's acquiescence in the decision. The family does not, however, have any legal right to veto the deceased's decision although the transplant team retain the discretion not to use the deceased's organs if they believe it would cause unnecessary distress. this much is made clear by the Human Tissue Authority's Code of Practice governing Organ Donation.

In this case it appears that organs may have been removed and used without appropriate consent. Yes the deceased were all on the organ donor register but the suggestion is that organs may have been removed and used in a way which did not accord with the deceased's consent (e.g. the deceased may have consented solely to the removal and use of their kidneys, but actually also ended up having their heart removed and used in a transplant). This poses two potential difficulties for all involved here:

1. The lack of appropriate consent may mean there has been a breach of s.1 Human Tissue Act 2004 and thus a criminal offence under s.5(1) Human Tissue Act 2004; and
2. The lack of a valid consent may also amount to the tort of battery.

As well as the legal ramifications associated with this story, there are also practical ramifications for us to think about.

Understandably there is considerable concern that this news will have a detrimental impact on public confidence in both organ donation generally and registering on the organ donor register specifically. Given that the available figures all point to the fact that the the demands for donor organs far outstrip demand, this story could not be much worse for the UK transplant authority.

The Weekly Update - 9th October 2009

Welcome to this week's installment of the Medical Law and Ethics Blog. In this post we will be considering organ donation as well as clinical negligence. A brief announcement the Human Fertilisation and Embryology Act 2008 concludes proceedings. All in all, a real mixed bag.

Organ Donation

Both 'Telegraph.co.uk' and 'news.bbc.co.uk' ran a story this week highlighting an increase in the number of Britons who have signed onto the organ donor register (see Anon 'Organs Still Short as Donors Rise', news.bbc.co.uk, 7th October 2009 http://news.bbc.co.uk/1/hi/health/8295764.stm and Smith, R. 'One in Four Britons on Organ Donor Register', Telegraph.co.uk, 8th October 2009 http://www.telegraph.co.uk/health/healthnews/6268495/One-in-four-Britons-on-organ-donor-register.html).

Official figures released by the Organ Donation Taskforce show that more than one in four Briton's is now on the organ donor register, a rise of 6.5% from last year's figures. This, in turn, has led to an increase in the number of transplants carried out in the same period. However, all is not rosy.

It is reported that the United Kingdom's donor rate lags behind that of much of Europe. Part of the issue relates to the system of consent underpinning any decision to remove organs from a deceased individual for transplantation, as governed by the provisions of the Human Tissue Act 2004.

If the individual has already clearly expressed their wish to consent to the withdrawal of their organs, and there is a clear record of the deceased's wishes then the family of the deceased do not have the legal power to veto or overrule the deceased's decision. Of course, this is an issue that needs to be dealt with very sensitively.

If there is no clear record of the deceased's wishes, and the deceased is a potential donor, then it falls to trained healthcare professionals to approach the deceased's partner/family/close friends to raise the issue of donation and ascertain whether there is anyone within that group who is willing to authorise the removal of organs for transplantation who has the power to do so under the provisions of the Human Tissue Act 2004.

The Human Tissue Act 2004 identifies two classes of individual who can give a valid consent to the retrieval of organs for the purposes of donation. First we have 'nominated representatives'. These are individuals who were nominated by the deceased as someone who has the power to represent them after their death and give a consent on their behalf. If there is more than one 'nominated representative' in existence then consent only needs to be obtained from one of them. Crucially, if a nominated representative exists, and they have consented to the retrieval of the deceased's organs for transplantation, this consent cannot be overridden by family members or anyone who falls within the second category, i.e. persons who are in a qualifying relationship.

If there is no evidence that the deceased had previously consented to donate their organs, or if there is no 'nominated representative', or if there is a 'nominated representative' but it is impractical to make contact with the 'nominated representative' (e.g. because time is really of the issue if the organs are to remain fit for transplant'), then (and only then) consent to the retrieval of the deceased's organs for donation can be given by anyone who is in a 'qualifying relationship ' with the deceased. Those who may be in a 'qualifying relationship' with the deceased are:

1. The spouse or partner (including civil or same sex partner);
2. Parent or child (the child can be of any age and can be a natural child or an adopted child);
3. Brother or sister;
4. Grandparent or grandchild;
5. Niece or nephew;
6. Stepfather or stepmother;
7. Half-brother or half-sister;
8. Friend of long standing.

This is a hierarchical list. Consent only needs to be obtained from one of the parties on the list, however, it should be obtained from the person highest up the list (e.g. if the deceased has no partner and is not survived by their parents or a child, then consent can be given by a sibling). Crucially, if consent is sought from the highest ranking person in the list and consent is refused, consent cannot subsequently be sought from someone lower down in the list (e.g. in the example we have just considered, if the deceased's brother refuses to consent to the retrieval of the deceased's organs for donation, it is irrelevant that the deceased's nephew is preparared to give consent).

There are just a few more points to be made in relation to the 'qualifying relationship' hierarchy. It is possible to omit certain persons from the list in some circumstances, namely if:

1. They do not wish to deal with the issue of consent;
2. They are not able to deal with the issue (perhaps because they lack capacity); or
3. It's not practical to get into contact with the individual within the time available if the organs are to remain suitable for donation.

So, to give a different example, if the hospital's transplant coordinator tries to contact the deceased's wife, but despite their best efforts the wife cannot be contacted and time is running out, consent can be given by the deceased's children. But what if the deceased has more than one child? The rules on this are clear, if there are multiple persons within a category who might be deemed to be in a 'qualifying relationship', consent is only needed from one of them. Thus, if the deceased in the example just given had three children, the transplant coordinator would only need to obtain consent from one of the children.

For more information on the law governing the retrieval of organs for transplantation (from both live and deceased donors), access a copy of the Human Tissue Act 2004. You may also find it helpful to access the Code of Practice issued by the Human Transplant Authority in order to help those affected by the provisions of the Act understand the steps they need to take to remain compliant with the law when dealing with potential donors (Human Tissue Authority 'Code of Practice 2 - Donation of Solid Organs for Transplant' http://www.hta.gov.uk/legislationpoliciesandcodesofpractice/codesofpractice/code2donationoforgans.cfm)

So, where the deceased has made their decision to consent to the removal of their organs perfectly clear there is little problem, but where the deceased has failed to leave clear evidence of their intentions there is a distinct possibility that the 'nominated representative' or the person in a 'qualifying relationship' will refuse to consent to such a removal on the patient's behalf. Indeed, organs are only retrieved from a third of potential donors owing to the great tendency of those in a position to give such a consent to refuse it.

It is within this context that calls have been made to adopt a system of presumed consent. In simple terms under such a system we would all be presumed to have consented to the retrieval of suitable organs from our bodies upon our death. In order to rebut such a presumption we would have to take positive action and opt out of becoming an organ donor (at present we are required to opt in, a small but significant distinction). Such a system was advocated by the Chief Medical Officer, Sir Liam Donaldson, in 2006 in his annual report (Donaldson, L. 'On the State of Public Health: Annual Report of the Chief Medical Officer 2006' (London: TSO, 2006) http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/AnnualReports/DH_076817) in a chapter called 'Organ Donations: The Waiting Game'. More recently the Chairman of the British Medical Association's Ethics Committee, Dr Tony Calland, has also called for a 'serious debate' about adopting a system of presumed consent in relation to organ donation (BMA Press Release 'Increase in Donors is Good News, Say Doctors, But More Needs to Be Done', 8th October 2009 http://web2.bma.org.uk/pressrel.nsf/wlu/SGOY-7WLKCH?OpenDocument&vw=wfmms).

Why not take a moment to comment on this post and share your views on whether we should look to adopt an opt-out system of consent?

Why Hospital is a Dangerous Place to Be

I have shamelessly pinched this headline from a story which appeared in Independent this week and was also covered in 'The Times Online' and 'news.bbc.co.uk'. All three stories picked up on figures published by the National Patient Safety Authority (NPSA) detailing the number of patient safety incidents and near misses across the National Health Service in the period between 1st October 2008 and 31st March 2009 (the full set of reports are available online at http://www.nrls.npsa.nhs.uk/patient-safety-data/organisation-patient-safety-incident-reports/).

The figures show that there were a total of 459,500 patient safety incidents in the report period - the highest figure since records began - a rise of 12% on the previous year. Of course it should be noted that the reporting scheme run by the NPSA is a voluntary scheme, thus the rise in the number of mistakes reported to the NPSA year on year can partly be explained by the fact that more and more trusts on board (currently 382 of the 392 trusts report to the NPSA). Similarly it is recognised that those trusts with the highest level of incidents tend, irnonically to be the safest. This can be explained on the basis that these trusts have established a culture of openness in which mistakes are reported and lessons are learnt. Nevertheless the breakdown of the figures show:

• There was no harm to the patient in relation to 303,016 patient safety incidents;
• 122,246 of the patient safety incidents resulted in low harm to the patient;
• Moderate harm was suffered by 28,521 patients involved in a safety incident; and
• 5,717 of the patient safety incidents resulted in death or serious harm (e.g. permanent injury or disability).
• As reported in Anon 'NHS Mistakes Harming Thousands', news.bbc.co.uk, 7th October 2009 http://news.bbc.co.uk/1/hi/health/8295417.stm and Rose, D. 'Errors by NHS Staff Led to 5,700 deaths in Six Months, Report Says', Times Online, 8th October 2009 http://www.timesonline.co.uk/tol/life_and_style/health/article6865050.ece.

Furthermore:

• The vast majority of the safety incidents (32.8%) were accidents involving patients (e.g. where the patient slipped or fell);
• 10.1% of the patient safety incidents were errors or near misses with treatments or procedures (e.g. whilst inserting a catheter); and
• Medication errors accounted for 9.4% of the patient safety incidents.
• As reported in Rose, D. 'Errors by NHS Staff Led to 5,700 deaths in Six Months, Report Says', Times Online, 8th October 2009 http://www.timesonline.co.uk/tol/life_and_style/health/article6865050.ece and Laurance, J. 'Why Hospital is a Dangerous Place to Be', The Independent, 7th October 2009 http://www.independent.co.uk/life-style/health-and-families/health-news/why-hospital-is-a-dangerous-place-to-be-1799083.html.

Of course there is nothing to say that all of these incidents can be attributed to negligence, we must be prepared to accept the fact that every once in a while harm will materialise despite the best efforts of those involved in caring for the patient. What worries me about these fgures, however, is that for all the talk of 'learning from mistakes' and 'ensuring these types of error do not occur again' it always seems to be the same categories of error that are the most prevalent. Indeed it was only in 2007 that the NPSA published the report 'Slips, Trips and Falls' (accessbile at http://www.nrls.npsa.nhs.uk/resources/?entryid45=59821) designed to improve understanding of the scale of the problem in the NHS, the impact the large volume of falls had on both the patient and the NHS and the sorts of steps that might be taken to help reduce the number of incidences of patient slips, trips and falls.

This brings us back to the same old question, is the NHS truly capable of learning from it's mistakes? Answers on a postcard to the usual address ...

... and Finally, the Human Fertilisation and Embryology Act 2008

This technically counts as old news (it should have been in last week's blog). I just wanted to make you aware (in case you were not already) that the Human Fertilisation and Embryology Act 2008 came into force on the 1st October 2008. Expect further discussion about the contents of the Act in the near(ish) future.

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.