10 October 2009

The law is no ass

Ignorance of the law is no defence. It would take you over 400 years to read all of the law that applies today in the UK. None of us can do this. Doctors cannot even read the parts of the law that most affect their practice. Instead we just do what we believe to be right and, generally, if you do this the law will protect you.

If you keep somebody alive because you believe that is the right thing to do the law will protect you. If you allow somebody to die because you believe that is the right thing to do the law will protect you. If you do what you would not naturally believe in your heart of hearts to be right it is likely that there will be a law that will condemn you. When it comes to the practice of medicine our laws are not that bad.

So if a patient with mental health problems arrives in your hospital having taken an overdose with a note pinned to her chest asking you not to treat her you might feel that she should be treated. You wouldn't worry about the Mental Capacity Act because that is there to protect people who are unable to make decisions for themselves not to condemn them. You remember reading that somewhere. In any case you feel sure that saving the patient's life must be the right thing to do.

.


Time is of the essence so you really should get on with treating your patient. Trawling around the niceties of the law is not an option. Treat and trust that the law will back you is the only sensible way forward.

But just suppose that for some misguided reason somebody in your team decided to check with the hospital's solicitors that it was alright to treat such a patient. What advice would you expect? How do you think they would deal with the apparent conflict between the Mental Capacity Act which requires you to do what the patient wants which is to die with the Suicide Act 1961 which prevents you from aiding and abetting the suicide of another?

The lawyers would, of course, reassure you that there is no conflict between the Mental Capacity Act and the Suicide Act 1961. Nothing in the Mental Capacity Act affects section 2 of the Suicide Act 1961. That should be obvious but to avoid any possible doubt the scope of the Mental Capacity Act was clearly stated in the Act itself:

Scope of the Act

For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).

Which means that section 2 of the Suicide Act 1961 applies the key part of which reads:
A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.

Which rather means that the doctors who allowed Kerrie Wooltorton to die were rather poorly advised. One thing is for sure. Nobody is going to go to jail over this. Certainly not the solicitors who gave the rotten advice. And the coroner doesn't seem to have got the law right either. Or is Dr Grumble completely wrong? After all he knows nothing about the law.








84 comments:

Prisoner of Hope said...

You are right to point out (if I may paraphrase) that it is often better "to seek forgiveness than permission" guided by a personal assessment of what is the right action to take.

I think that the more something is legislated and regulated the greater is the scope for clever (even sometimes devious)people to find ways around restrictions and to err rather than be guided by a sense of what is right and wrong.

Given the vast amount of "policies and procedures" that NHS clinical staff are expected to observe I wonder how it is that locum and agency staff can be expected to function at all without a full two week induction programme. As this does not happen such "policies" are exposed as insurance documents for management protection to prove "compliance" with the latest "guidance".

In general we need less ineffective legislation and regulation - intended to prevent error. We should instead be prepared to exercise judgement (after the event) about whether professionals - who erred - acted in the best interests of their patients and as a result whether they should continue to be trusted without increased supervision.

Dr Grumble said...

Absolutely, Prisoner of Hope. As you were posting I added a final conclusion (which reinforces your point) pointing out that the law is a clumsy instrument to deal with these problems.

Dr Grumble said...

Regular readers will notice that Dr Grumble is feeling his way on these issues. He is aware of the inconsistencies in some of his posts on topics relating to the law and the Kerrie Wooltorton case and he freely admits to his lack of authority in this area.

Other medical bloggers like the Witch Doctor and Dr No also seem to be wrestling with these latest legal conundrums and Dr G is grateful to them for developing his thinking in this area.

Grumble has rather come to the conclusion that, in an emergency, doctors should do what they believe to be right and worry about the consequences later. The law does usually look after you if you act in good faith.

R v Bourne [1939]
R v Arthur Law Society Gazette 1981
Bristow J Chatterton v Gerston 1981

Witch Doctor said...

It seems to me the lawyers need to admit they've made a mistake in their interpretation of the MCA by missing the link that states clearly it is trumped by the Suicide Act. I don't think they will. I'm interested to see how they'll wriggle out of admitting a mistake. But it's not only the lawyers advising the consultant nephrologist at the time – several other legal experts have reached the same conclusion. How can this be? They can't all have missed the link, and they all must be aware of the seriousness of the matter.

A Glasgow lawyer Sheila McLean, who is also International Bar Association Professor of Law and Ethics in Medicine and therefore considered an expert in this area, came out very strongly that there was "no alternative" but to go along with the patients wishes, although she claims that the AD was not relevant in this at all since the patient was conscious. If this had not really been "intended' suicide eg a patient refusing a blood transfusion for religious or other reasons then perhaps The Suicide Act would not stand up. However, in Ms Wooltorton’s situation it can be nothing other than suicide therefore her conclusion seems very odd.

Dr No said...

My Oxygen of Morality post says quite clearly that the lawyers and hospital managers and that includes the local GMC agent (the Medical Director) all got it wrong, horribly wrong. But that is not unexpected.

The really worrying thing to me is the fact the doctors at the bedside subjugated themselves to this bunch of clowns and contortionists. Why didn't they have confidence in their own professional tradition?

We are breeding a group of lilly-livered subservient technicians who do what the state commands. This is creep in action. They are not fit to be called doctors.

Dr Grumble said...

In days gone by we had the Lancet describing Alec Bourne who, in the 1930s, terminated the pregnancy of a girl aged 14 after she had been raped as an example of "disinterested conduct in consonance with the highest traditions of the profession".

He was arrested and tried on a charge of procuring an abortion. He was acquitted.

In contrast we now have the BMA and Sheila McLean saying that the doctors had no alternative.

Yet if the doctors involved in the Wooltorton case had acted to save her life I doubt they would have been arrested or tried. Quite possibly we would never even have heard of the case. We all know that.

In the context of the Wooltorton case Sheila McLean's view that the doctors had no alternative seems extraordinary. She has ignored the suicide element to this and glossed over the capacity issue which is not as clear cut as she would have us believe.

McLean could have made more of Lord Donaldson's point that the degree of capacity should match the gravity of the decision. Lord Donaldson even allowed capacity to be vitiated by the will of others. Surely in the Wooltorton case mental problems could have been used to argue the case for the patient not having capacity commensurate with the gravity of her decision?

This case was not about a patient saying in advance that they had had enough and wanted just to be kept comfortable when the time came. Sheila McLean could reasonably have made her point if that had been the situation but it patently wasn't. pdf

Dr No said...

Dr G - your link consorts make interesting reading! The other day we had the Samaritans. The pdf above comes from an outfit called the Libertarian Alliance. Click on the "Guns and Freedom" link to get an idea where they are coming from!

Dr No said...

For some unknown reason the link tags are being removed from my comments, even though they show up correctly in preview. The url of the Libertarian Alliance is:

http://www.libertarian.co.uk/

The Oxygen of Morality is at:

http://www.badmed.net/bad-medicine-blog/2009/10/oxygen-morality.html

Dr Grumble said...

I wanted, Dr No, to record where I found Lord Donaldson's comments. I agree that these people are not natural Grumble allies.

Dr No said...

I know they are not - I suppose what I am doing is trying to encourage people who wouldn't normally click through to sources to do so - to get the fuller picture, as it were.

the a&e charge nurse said...

Personally I see no conflict between the MCA and Suicide Act - nobody could say with a straight face that the doctors in the Kerrie Wooltorton case were abetting her suicide.

If KW was judged to be competent then by definition doctors had explained to her the seriousness of her condition, including risks associated with non-treatment (death, etc), but were of the opinion that KW was able to retain information, and weigh up pros/cons (of accepting or declining treatment) in order to arrive at a decision - she would also have been required to communicate this decision to staff looking after her (preferably in written form).

This is not a process that in any way can be understood as assisting suicide or put another way how is it any different (medico-legally) from a haemorrhaging Jehovah's Witness who is not transfused against her will (assuming all parties are deemed competent)?

The simple fact is 'capacity' is not clinical entity (although medical factors might influence it, such as the effects of alcohol, head injury, etc) but an existential position for which doctors have no special training - of course this of little comfort to the doctor who is left holding the parcel when the music stops.

Anonymous said...

If it is aiding/abetting to do nothing when someone tries to kill themselves, why is it not aiding/abetting to do nothing when someone steals something or assaults someone? Because simply standing back and doing nothing does not amount to aiding/abetting.

Dr Grumble said...

If you have a patient under your care to whom you would normally administer treatment to prevent them dying but you decide not to in order to allow them to commit suicide isn't that rather different from watching a crime on the streets?

Whatever the legal position the effect of your inaction makes the suicide happen when otherwise it wouldn't. But Dr Grumble is feeling his way with these complicated legal matters.

Witch Doctor said...

There may be fine grades of meaning hidden in the words aiding and abetting. The word “complicit” to me seems the correct word but others may tune into a different meaning. i.e if I allowed a patient to die in similar circumstances I would consider myself complicit in her successful suicide. I would have no doubt at all about that.

The problem is, even if the meaning of the wording is perceived differently, how can it ever be proven that aiding and abetting have not taken place. It seems legally to be important that medical staff throughout the period leading up to death periodically ascertain whether a patient has had a change of mind. This presumably is a defence against them having been complicit. It is difficult to standardise the personality of communication. A patient’s mind may be changed by one doctor but not by another. A simple gesture or a smile may do it.

If the personal compass starts spinning due to much contemplating on the greater good, a patient who is repeatedly using up a lot of NHS resources may, by any interpretaion, be blatantly aided and abetted in his/her suicide. No-one may know that this has taken place. Suicidal patients need to be protected from this.

the a&e charge nurse said...

Just to say that treating non-consenting patients by force is not without risk - a number of NHS patients have died following restraint;
http://www.independent.co.uk/life-style/health-and-families/health-news/lack-of-staff-training-puts-mentally-ill-at-risk-on-wards-808469.html

KW came to A&E presumably believing that her wishes (for palliation rather than rescue treatment) would be respected?

Will patients stay away once word gets out that medics are ethically bound to take whatever measures are necessary to preserve life?

the a&e charge nurse said...

To remind everybody - it takes a minimum of x6 staff to chemically sedate a patient.

x4 staff for the limbs.
x1 for the head/neck.
x1 injector.

We just pray that a blue call does not come in when so many staff are rolling about on the floor.

Dr No said...

A&E charge nurse - "...medics are ethically bound to take whatever measures are necessary to preserve life...".

In general, of course we are, but it is not an absolute. In The Oxygen of Morality I quoted what I was taught at medical school: Not to kill, but neither to strive officiously to keep alive. That's why I can give morphine for pain relief, even if I know that it will have the unintended side-effect of hastening death.

The point about KW for me was the uncertainty, largely due to the fact she was an out of the blue emergency presentation with a DNR note on her chest. I know she'd done it many times before, but the DNR bit was out of the blue. As Dr G has pointed out, death is a one way street, and, in my book, you need to be very very certain that is what the person wants before you respect their wishes. From what I have read about KW's case, I don't think there can be that certainty.

I fuly accept a sane capacitous individual has the right to determine their own fate - and that includes killing him- or herself. But we need to be absolutely sure they are sane and capacitous. The extent to which we can be forced to be involved in the consequences of such a decision is a moot point. My suggestion is that we handle it much like we do abortion - no doctor is forced to get involved (beyond referring the patient to someone who is prepared to get involved).

Forcing a treatment on a patient is always an unpleasant process. I don't think we have given enough consideration to the question of how we would have forcibly treated KW, had force been needed. Dr No knows of a particular case where treatment was forced, and it was very very unpleasant indeed.

Julie said...

This is not a process that in any way can be understood as assisting suicide or put another way how is it any different (medico-legally) from a haemorrhaging Jehovah's Witness who is not transfused against her will (assuming all parties are deemed competent)?


The intent is different, and that is where these two scenarios differ legally. The Jehovah's Witness intent is not death; their intent is to avoid breaking the law of Moses. (Incidently, their interpretation is at odds with the Jewish interpretation; Jews will quite happily take a blood transfusion and an organ transplant, but that's another story). They will be quite happy to live, if they survive the operation. It is the same scenario as 'double effect'.

Kerrie Wooltorton's intent was to die and that is where it becomes difficult. If the doctors assist her in that, then I think they are in breach of the suicide act. It is a fine distinction, but an important one.

Sam said...

Simply put; Forget about the laws, if it naggs, then it is wrong!

Kerrie's case naggs like no other! And the suffering that has now been caused to her family naggs too!

So, always do what your conscience tell you, and if that does not cause any nagging feelings afterwards, you would have done the right thing ... and not gone against any laws either because the laws are there to protect, not to kill!

'Protect' does not nag, while 'kill' does!

Doc Doc said...

I didn't mean to relate to unborn children, my statement was really posting the question who is more rational?

is it miss A

who has a very low depressed/personality disorder who has decided to end her life because she doesn't like her existence and has written a document to say that she doesn't want to be revived through her demise

or Mrs A

has just given birth to a healthy young girl but has a post partum haemorrhage and given a blood transfusion would live to look after her daughter, but declines this as she is a Jehovah's Witness and dies, leaving a motherless child...

I have read Dr G's posts, and this is an ethical dilemma, but Holey Fuck we are continually told to respect patient's requests.

The law cannot deal with these issues but us medics have to. I'm not sure that the politicians will ever really come to term with these realities, ho hum

the a&e charge nurse said...

Agreed the intent is different - even thought the outcome (death) is exactly the same.

But in the eyes of the MCA intent is an irrelevance - patients are not required to provide ANY reason for refusing treatment (that makes sense to a third party).
In this respect a bizarre religious ideology or idiosyncratic personal opinion is neither here nor there - the Act simply requires demonstration of 'capacity' whenever life saving treatment is refused.

Reading between the lines the medics here are saying that a suicidal patient, almost by definition is incapacitated - it might also be difficult to appreciate fully the implications of your actions if you are bleeding to death and subject to peer group or family pressures (as Dr Grumble has already suggested).

It follows that in the emergency situation (if doubt does exist - and it usually does) then unpleasant measures might be imposed - not often, thankfully, but I have participated in such episodes.

What I think will protect clinicians in most cases is a conviction that they were acting in the best interest of the patient (or at least believed they were) and that there is no objective test against which their judgments (regarding capacity) can be measured.

Anonymous said...

It seems that the attorney General can be "ignorant".

Julie said...

The MCA doesn't treat intent as an irrelevance; it states that the doctor must not be motivated by a desire to bring about the person's death. By the same token, the MCA makes advance directives legally binding. It's deeply contradictory. You can take almost anything out of it that you wish and I think that's the point. In the absence of certainty, precedence becomes more important and that's why I think it's so important that Kerrie's father is sueing the trust over this. The more cases that are allowed like this, the more the precendent will be established as the proper interpretation of the MCA.

Btw, Jehovah's Witnesses do recover from operations without blood transfusions. I know, because a friend of mine who is a JW was in a serious accident and had to have emergency surgery. That's how I know so much about them, because I was trying desperately to pursuade him to take the blood. He was in hospital for a couple of months, but fully recovered. But of course that doesn't always happen; it's a gamble.

Dr Aust said...

Though Mrs Dr Aust has never been an A&E doctor, she has seen a good few acute medical patients who are repeat suicide attempters and/or "expert poisoners", in Dr No's phrase. She also seems to be reading a lot of law these days for her current job.

Anyway, when we talked about this she was of the Grumble/Dr No/Witch Doctor view that in the presence of doubts about capacity, and in an emergency, she would act to save the patient - largely on the basis that Prisoner of Hope succinctly summarised in the first comment, plus the argument A&ECN articulated in the final paragraph of his last (22.55)comment.

What she thought most important for the doctors if they were to intervene in a case like KW's was that they have a clear sense, and a reasoned argument, as to precisely WHY they were taking the action in the circumstances - and that this be set out at the time so that they could (if necessary) later explain themselves in court. Of course, it is this "clear sense of why" (i.e. why what they would be doing by intervening was actually acting in the patient's best interests) that the discussion on this and the last two posts is trying to work towards.

Anyway, it has been fascinating reading, and I will be bookmarking it for directing the medical students here the next time "ethics of treatment or omission" comes up.

It has also reminded me just why I regard being a doctor as a fiendishly hard job, and one I would never have wanted to do myself. As the Witch Doctor (? - I think) put it: "consultants are paid a lot of money to be at the sharp end and take these kinds of hard decisions" (and to take the flak for them later). Rather them than me.

Finally, it brings home the tragic nature of the case, someone as young as KW who seemingly could see no way out of her impasse other than suicide.

PS Didn't I see from Dr No's blog that this issue/case is now likely to get hashed over in court, since KW's family are suing the Trust?

the a&e charge nurse said...

Perhaps the term intent is misleading us, Julie?
Clearly doctors are forbidden to actively assist suicide.

Is a decision NOT to forcefully impose treatment on a non-consenting patient in an emergency a form of aiding or abetting a capacitated patient who is trying to kill them self - no, not in a million years in my book, and to do so would run contrary to the stipulations within the MCA (the very issue raised by Dr Grumble in a number of recent posts).

My point was a patient's decision to refuse treatment does not have to be rational providing they are deemed competent - obviously this would not be the case if the patient was psychotic, say.

Dr Grumble said...

According to the Mental Capacity Act (2005) Code of Practice:

Nobody can ask for and receive procedures that are against the law (for example, help with committing suicide). As section 62 sets out, the Act does not change any of the laws relating to murder, manslaughter or helping someone to commit suicide.

Others have argued above that standing aside and letting somebody die of self-poisoning is not helping someone to commit suicide. Yet without this help the victim would not die and would not succeed in committing suicide. The Code refers to ‘helping someone commit suicide’ being covered in other laws and it does seem to Dr Grumble that failing to prevent death is ‘helping someone commit suicide’.

It was obvious to Dr G that this situation would arise and that was the reason he asked the barrister responsible for his training on the Mental Capacity Act for clarification on this exact scenario. He never got it from her. She can't be blamed. The fault is with those who drafted the legislation.

Of course there is nothing new about this. You have never been able to treat patients who have poisoned themselves without their consent. The thing that is new is that suicide notes reading ‘I want to die’ now have greater legal status. In fact the law states that:

A person must be assumed to have capacity unless it is established that he lacks capacity.

It’s quite difficult to establish that somebody lacked capacity in the context of a suicide note and an unconscious patient. Are we really supposed to assume that, in the absence of evidence, they had capacity and they do not want treatment? People who write notes and do not intend to get found do really mean to kill themselves so it is not an unreasonable assumption.

Suicide notes are not covered in the Code of Practice. What is Dr Grumble to do? Treat or allow to die?

Witch Doctor said...

I suspect you know what you'll do, Dr G....

Dr Grumble said...

I do, WD, I do.

Dr No said...

I am worried that we are not thinking about the practicalities of all this.

It is all very well taking the moral high ground. What's going to happen in practice?

Case One: a patient has initiated their suicide. Treatment consists of a single injection. which the patient refuses. There is doubt about capacity, and so the doctors administer that single injection. Forcibly. The patient struggles, and restraint is used. Violence is met with violence, all in the name of the "best interests" of the patient. Ugly and unpleasant. But, hey, we,re OK because we followed our moral code!

Case Two: a patient has initiated their suicide. Treatment consists of dialysis, or whatever, and will take time. The patient refuses. There is doubt about capacity, so the doctors impose treatment. This involves restraining the patient not for the moment of one injection, but over a protracted time. It turns out the only way to restrain this patient, to stop her from pulling the life-saving lines out of her body, is to tie her to the bed. For several days this woman remains tied to her bed...

Is that what we, as doctors, want to be part of?

Witch Doctor said...

Creep will soon take care of this dilemma, Dr No. Soon restraint of patients of any kind will be forbidden by law, and it is the medical staff trying to follow their moral code who will be restrained - by managers, administrators and our peers, the medical directors - one for each limb.

We won't get near our patients but we can always raise our right hand in court and say "My Lord, I tried."

Dr Grumble said...

Dr No, you contravene the Code without getting near any form of restraint. You should not use "excessive persuasion" or "undue pressure" you can only give them the facts and leave them to it.

"Come on, we can't leave it any longer, I am going to give you that injection now," is certainly not an approach that is permitted.

Dr No said...

With all due respect, WD, your answer sidesteps the question. What happens before the creep sets in?

Dr No has seen this happen for real. It was before the MCA, and was done under the MHA. Quite apart from the likely misuse of the MHA to impose treatment for a physical condition, it created a most horrible situation. Evrybody did what they thought was in the best interests of the patient, but nobody had thought about the end game.

Just taking the moral high ground isn't good enough. We have to think through the consequences of our actions.

Dr No said...

Dr G - we are all agreed that when the law is bad, doctors are cleared to follow their professional (Hippocratic) code: The Oxygen of Morality.

Witch Doctor said...

The Creep won’t be long. In fact as Dr Grumble says it is already here.

Dr No, I have been thinking about the very point you are making quite a lot during the course of this discussion. Restraint, and even paternalism is in the process of being outcast.

I once was called to deal with a patient who was standing on his bedside locker during the night threatening anyone who came near with a glass urinal he held in his hand. I plucked out The Art of Medicine Aide Memoire from my pocket and persuaded him that he should give me his urinal and come down from his locker. He did this like a lamb, because he remembered I had spent some time talking to him during the day. You see, we had developed some kind of rapport, however tenuous. He told me he did it because the staff at the nurses’ station were talking and laughing too loudly and keeping him awake. This was perfectly true and I said I would convey his message to them.

He seemed happy with that.

No medication. No restraint.

Now, the point I am making is that the Art of Medicine can in many, but not all, situations work wonders.

The Art of Medicine, unlike The Science of Medicine, cannot be practised unless you spend “quality time” with your patients. This, like restraint and paternalism, is no longer allowed.

They say The Art of Medicine is far to expensive.

But it does prevent court cases.

Dr Grumble said...

With all this malice aforethought I hope we don't end up like Dr Flea.

Dr No said...

WD - I absolutely agree - good medicine is an art with a scientific background. It is also elegant and effective - unlike clumsy law.

Sam said...

'I had spent some time talking to him during the day. You see, we had developed some kind of rapport, however tenuous.'

My kinda doc! No restraining or humiliating people or giving undignifing forced treatments ... Proper communication will do magic! In most, if not all difficult cases, this is all you need; to persuade, talk 'sense' with respect and a smile (And mean it) Isn't it WD?

:-)

Witch Doctor said...

A lot of the time, but not always, Sam. On occasions there is not much time to save a life so you just have to roll your sleeves up and get on with it as best you can under difficult circumstances.

I imagine A and E Charge Nurse will be facing this almost on a daily basis.

Dr Grumble said...

Sam, you are right.

Unfortunately it doesn't always work.

Some decades ago when Mrs Grumble was a lot younger than Dr Grumble he decided to show her how to manage a patient who was not listening to advice. This it turned out was a mistake. Dr G tried his charm. The patient had a hefty suitcase on her lap with the lid open. A signal of intent perhaps that she or somebody close to her was expecting a stay in hospital. But the patient was having none of it. Dr G made the mistake of steadying the suitcase by putting his fingers close to the hinge whereupon the patient slammed it shut.

Now what do you do if this patient was behaving that way because she had an infection that needed treatment?

Ah. I see WD has posted to tell us that even her charm does not always work. But it is amazing how a good relationship with a patient can sometimes go a long way.

None of this is the problem that it is when time is of the essence.

Dr Grumble said...

And how do you think I dealt with the patient's daughter who thought that I was not treating her mother out of bloodymindedness following her assault on me when really it was because I wanted to avoid assaulting her.

What do you think I did?

Witch Doctor said...

Puzzling post, Dr G.

Is Dr Grumble no longer much older than Mrs Grumble?

Can it be that Dr Grumble is dabbling with The Spell of Eternal Life?

Dr Grumble said...

The few years between a senior SHO and an HP who has just started are greater than the few years that still separate the Grumbles. I meant the nonsense I wrote in that way.

The reason this incident is remembered so vividly is that Mrs Grumble still reminds Dr Grumble of the time he offered to teach her how to manage such a patient. In some ways she hasn't grown up!

Witch Doctor said...

I suspect your squeal of pain and the rush for the cold water tap for you finger will have endeared you, now the patient, to everyone concerned and they will have been quite happy to tend to your needs (a bandage maybe?) and to go along with your wishes.

Doubtless you will have taken this window of opportunity to explain the wonders of antibiotics to restore to normality the confusional states associated with infection, as well as treating the physical problem.

Dr Grumble said...

How did you guess, WD?

There was a happy ending for all involved.

Witch Doctor said...

I guessed because I'm a witch, for goodness sake!

Sam said...

Knowing your nature Dr G, I too felt there was going to be a happy ending.

And you can only do your best, that's why I said good communication will work, in any walk of life, 'most' of the time .. I trust you'll do your best though :-)

And that about Mrs G:

'In some ways she hasn't grown up'

Only in 'some' ways?!! Ya luuuucky man! eh?

Hehehe ;-)

Sam said...

I meant that last comment for my most favourite witch too :-)

Prisoner of Hope said...

Just heard a brief discussion on Radio 4's Start the Week which has a bearing on the original post by Dr G. and my initial comment.

Trust: How we Lost it and How to get it back by Anthony Seldon was published a week ago.

The Independent introduced a brief review with the heading "We need trust, not more surveillance"

Dr Grumble said...

From Amazon:

Anthony Seldon examines the history of trust in civic society,draws lessons from the past and looks at new solutions to resolve our lack of trust in politics, business, science, the police, education,religion, and most important of all, ourselves.



Interestingly he leaves out medicine perhaps because doctors still seem to be trusted more than most.

But the system in all sorts of ways no longer trusts doctors as it did - even if, mostly, patients do. So while we have laws preventing people from helping others to commit suicide (even though they have capacity to decide that is what they want to do) we also have laws that prevent doctors treating them once they have set themselves on the path to death by insisting that doctors assume, in the absence of evidence to the contrary, that a suicide note was written by somebody who had capacity.

What you really need is a professional who is trusted to make the right decision when time is of the essence and prepared to take responsibility for his decision. Which as WD has been saying is what consultants are paid to do.

phatboy said...

Failing to provide treatment on the direct instruction of somebody with the capacity to make such a decision is not aiding, abetting, counselling or procuring the suicide and so the advice from the solicitors was correct.

I cannot imagine a situation where counselling or procuring could take place after the act designed to bring about the death (save where a doctor encouraged a patient to refuse treatment after an overdoes (for example) had already been taken).

Aiding and abetting would normally involve some positive act that assists a criminal offence, such as washing the clothes of a murder to hide evidence. I cannot imagine a court finding that failing to act in these circumstances would be sufficient to reach the standard for aiding and abetting.

Dr No said...

Abetting doesn't have to be in in relation to a crime - it is just that it usually is. In the Suicide Act, abet is used in relation to that which is not a crime (suicide) to nonetheless say what is a crime:

"2 Criminal liability for complicity in another’s suicide

(1)A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years."

The essence of abetting is knowing facilitation. It can be an act of commission (washing the murderers clothes) or omission (leaving the alarm off so the burglars can get in).

I remain of the view that the Nor-docs knowingly facilitated KW's suicide.

Trust: Dr G is right; MORI polls consistently show doctors consistently top the most trusted profession by the people polls but the system - the DoH, and its official Stasi, the GMC, do not. In fact apparatchiks are not above spinning the question of trust any which way they want. Trust, however, is very precious. I posted on this here:

http://www.badmed.net/bad-medicine-blog/2009/08/lies-others.html

The Shrink said...

Have you seen an Advance Decision yet, in clinical practice, that's legally binding and relevant?

I've not.

They're so situation specific and decision specific it's tricky to draft one that's applicable in contentious, complex scenarios. Add to that the Code of Practice guidance that makes further stipulations (on Advance Decisions that end life, eg it being in writing, witnessed etc) and at best I've had Advance Decisions that convey broad values/wishes, but don't reach the threshhold for being legally enforceable.

It's rare a day goes by and I'm not asked to assess someone's capacity, often around major decisions (eg turning off their ventilator) so I guess I'm increasingly concrete in looking at these issues.

I don't see the law as difficult or that complicated. I know I'm reductionist and naive in this. But I see the law as being clear on what we can and can't do.

It's then the clinical care and the ethics that are complex, not the law.

Like Dr Grumble, I'm content to act in what I interpret as a lawful manner with my patients' best interests at heart, acting transparently, and answer any subsequent queries in an open manner, trusting all will be well . . .

Dr No said...

Shrink: what is exceptional about KW (and why it is not like switching off a ventilator in a patient who is dying of natural causes) is that KW initiated her own death. She was in the process of committing suicide.

The MCA 2005 says quite clearly at S62:

Scope of the Act

For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).

What this means is the MCA cannot trump the Suicide Act.

Back to abetting: let us consider other scenarios:

(a) a GP is called to the house of someone who has initiated their suicide. The suicide asks not to be admitted and the GP agrees not to call an ambulance. The GPs act is one of omission (not calling the ambulance). Is he complicit in - abetting - the suicide?

(b) a relative/friend knows full well that someone has initiated his or her suicide - and has asked the relative/friend not to call an ambulance. The relative/friend complies. Again, this is an act of omission. Is that relative/friend complicit in - abetting - the suicide?

You know what my answers are! What are yours?

Prisoner of Hope said...

My copy of the Seldon ( et al) book arrived from Amazon this morning. I thought the following worth adding into the mix about Trust:

As Plato said 'Good people do not need laws to tell them to act responsibly, while bad people will always find a way around the laws'

Society has fallen back on a whole panoply of middle ground trust developers. We refer here to contractual understandings, financial incentives, bonuses, regular inspections and measurable targets, all designed to boost accountability. None of these are wholly satisfactory as a way of generating trustworthy behaviour as they deny trust in the first instance.


In the preface to the book there is a list of 10 core arguments. I like numbers 4,5,6 and 2 viz:

4) A presumption of trust rather than a presumption of mistrust helps individuals and organisations flourish.

5) Blind trust is lazy and damaging: we need active trust, which is informed.

6) We must distinguish [between] trust in honesty and trust in competence

2) Trust is not just about today's relationships: trusteeship extends it into the future and the past.

I think these arguments apply to the training of future trusted clinicians, about which some of Dr G's commentators have expressed concern if not alarm.

Dr No said...

Replacing a presumption of trust with one of mistrust is very dangerous. My post The Lies of Others goes into this and has some useful links eg to transcripts of O'Neill's Reith lectures.

What is so scary - but at the end of the day not unexpected - is they way Obersturmf├╝hrer Marshall twisted O'Neill's words to mean the opposite of what she actually said.

The url (in case it does show up above) is http://www.badmed.net/bad-medicine-blog/2009/08/lies-others.html.

Andy Cowper said...

Mmmm. Utterly excellent comments from everyone on an issue as straightforward to grasp as a rosebed's worth of thorns.

I was going to link to the Oonora O'Neill Reith Lectures on trust, but I see that Dr No has done so.

This is a classsic wicked problem, it seems to me.

It's probably deeply unsympathetic of me to feel exasperated by the aspects of this individual's behaviour that smack of attention-seeking. I am sure they were depressed, with suicidal ideation.

But I'm not sure beyond a reasonable doubt that they were suicidal.

Moreover, in moral terms, the individual who does this has abrogated their personal responsibility - through the act of taking themselves to A&E after having poisoned themself, but simultaneously forbidding any clinician there to act to save their life.

Occam's Razor time: why did they go to A&E if they wished to die? What is provided at A&E is life-saving, emergency healthcare.

Not an audience.

Not hospice services.

If this individual had been sincerely suicidal with no hint of equivocation or uncertainty, I suggest that they would not have attended A&E.

I hope that I would have taken refuge in a Catch-22 defence that a person whose suicide bid takes them to A&E in time to be treated is therefore not, in fact, suicidal, and treated them against their wishes.

And I don't believe in default medical paternalism.

But nor do I believe that making others complicit in your suicide bid is morally or ethically acceptable. It's just plain bad manners, in fact.

Me said...

"What is so scary - but at the end of the day not unexpected - is they way Obersturmf├╝hrer Marshall twisted O'Neill's words to mean the opposite of what she actually said."

I wouldn't call it "Scary", I would call that what it really is; unfair and unethical 'bullying'. And quite stupid too, because this usually attracts great attention, just like you yourself took note here.

Then again, stupidity is quite scarry, so, at the end of the day, I beg not to differ.

Anonymous said...

I hope that I would have taken refuge in a Catch-22 defence that a person whose suicide bid takes them to A&E in time to be treated is therefore not, in fact, suicidal, and treated them against their wishes.
__________________________
But the law hardly ever formally allows doctors to treat patients with a physical illnesss against their wishes. There is no Catch-22 defence. That is why KW was allowed to die. The doctors were not prepared to break the law to save her life.

Andy Cowper said...

Hello. In response to your comments, "There is no Catch-22 defence", I'd suggest the word "yet", because if more such cases happen (let's hope not) but with different action by the clinicians (let's hope so), then there could be a 'Catch-22' defence.

UK criminal law, under which any case would be judged, involves the impact of case law on common law.

It seems to me that the potential Catch-22 defence could be a logical and reasonable attempt to set precedent in a case of first impression.

It's just an idea, tossed out there for discussion.

Dr Grumble said...

You cannot usefully consult the hospital management and solicitors when time is of the essence. We generally get on and do what we believe to be right and trust to the good sense of the courts if ever we get into trouble.

But the KW case was a little different in that there was some time to consult. It is clear from Professor McClean's article that the legal position is not in doubt. In fact the doctors concerned were lauded for allowing their patient to die. The issue of whether the patient would have gone on wanting to die is not something the legal people were bothered about. It may matter ethically but it matters not a jot legally. That's the trouble with the law. It is not about right and wrong it is about what the law says.

Having consulted the hospital solicitors and received unequivocal advice it would have been difficult for the medical staff to go against that advice, do what they believed to be in their patient's best interests and keep their careers.

Julie said...

I think you're right about the precedent thing, Andy. The thing that annoys me about the MCA is that the loopholes in it could be relatively easily closed. It's not a matter of re-writing the whole law. For example, they could have made advance directives advisory, which would clear up a lot of this mess (and this is the case in Scottish law) or they could make advance directives legally binding except in the case of refusing life-sustaining treatment. It isn't rocket science. But they didn't do it and as you say, precedent is what's going to matter.

Dr Grumble said...

According to this government link, you can't use an advance decision to "force doctors to act against their professional judgement". And a doctor might not act on an advance decision "if the person has done anything clearly inconsistent with the advance decision which affects its validity".

It would seem that in requiring doctors to enable her suicide KW was forcing them to act against their professional judgement and furthermore her actions in turning up to hospital having poisoned herself could be regarded as inconsistent with her written wishes.

Of course the KW case was not strictly about advance directives but it does seem that the law in this area did have some influence over the decision not to treat her as it gave more validity to her note than might have been the case otherwise.

My feeling is that if the doctors had found some way to treat her as they had done on previous occasions they could have made all these arguments and escaped censure.

It is worth noting that according to the Mental Capacity Act:

Nothing in an apparent advance decision stops a person—

(a) providing life-sustaining treatment, or

(b) doing any act he reasonably believes to be necessary to prevent a
serious deterioration in P’s condition,

while a decision as respects any relevant issue is sought from the court.

This means that if you find yourself in a difficult legal situation related to the Mental Capacity Act you can treat first and ask the court to decide later.

Since KW made an attempt at an advance directive it would seem that the Mental Capacity Act was of some relevance to this case and that therefore the doctors could reasonably have treated their patient and asked the court to decide later.

Dr Grumble said...

The more I look into this the more I think that some of the legal advice we have been getting is plain wrong.

In A Guide for Healthcare Professionals (pdf) it states very clearly that "some forms of medical treatment will be lawful even in the absence of the patient’s consent if the procedures are in the patient’s best interests and are necessary to ensure improvement or prevent deterioration in health. This is known as the doctrine of necessity."

With that statement there in an official guide it does seem to me that it would not have been too difficult to justify treating KW while keeping within the law.

Dr Grumble said...

From the same document:

In cases where there is genuine doubt or ambiguity
about the person’s intention or capacity at the time the statement was made, healthcare professionals should adopt a best interests approach until clarification is obtained.

Witch Doctor said...

The link to the government document in three above isn't working Dr G.

Dr Grumble said...

Thanks, WD. The link should have been to Directgov Living wills: advance decision or directive.

Dr Grumble said...

The same links states that you cannot use an advance decision to ask for your life to be ended - which is not far off what KW asked for.

Dr Grumble said...

I agree very much with the Shrink that these advance directives are of extremely limited value in practice.

While I have views on when I would not like to be treated, even with my extensive experience in these areas I do not think I could usefully define what I would want to happen to me following the multitude of possible disasters that could strike me at any time with various ranges of severities and uncertainties as to the ultimate outcome.

If I developed, say, MND I might be tempted to try and explain when I would like treatment to be withdrawn but I might just feel differently nearer the time if, say, one of my children was about to get married or a grandchild was on its way.

Witch Doctor said...

The question that remains unanswered by the lawyers involved in Norwich at the time, and those thereafter is: “Why did they all put their efforts into interpreting the Mental Capacity Act in the KW case and seemingly ignore the Suicide Act 1961?”

After all, that is what it was. A suicide. It can’t be simpler than that.

In view of this case, all doctors now need to know exactly where they stand legally regarding the management of the conscious patient who has attempted suicide. Many patients struggle, and that could be interpreted as lack of consent. Capacity must be assumed until proven otherwise. So, not to treat such patients now seems to be at least an option if not the law.

Are doctors supposed to ignore the Suicide Act in the same way that the lawyers seem to have done?

The medical profession, who after all are at the sharp end, should pin the lawyers down and insist on a clear answer to the question above. After all, The Suicide Act carries with it the possibility of 14year imprisonment for a doctor who gets it wrong.

Dr Grumble said...

I sit on a committee alongside two lawyers. They rarely agree on anything and admit that that is generally the case when you put two lawyers alongside each other.

Witch Doctor said...

Then we'll just need to trust our common sense, our little moral compass, and an oath we took a long time ago.

Which is what most doctors would do anyway.

(I hope.)

Dr Grumble said...

Quite.

Julie said...

The thing is this. Kerrie Wooltorton killed herself in 2006. This is 2009 and for all that time a team of 'experts' have been deliberating whether or not the doctors did the right thing. They have concluded that they did and have given them a pat on the back for it. So where does that leave the doctors and where does it leave interpretation of the MCA? Whatever we think morally, legally a decision has been taken about this and it ain't looking good for doctors' discretion in these situations..

Marjorie said...

I've just been reading this post and the comments and find it fascinating and deeply troubling.
Witch Doctor suggested that the lawyers ignored the Suicide Act.

I disagree. (Full disclosure - I am a lawyer, although I do not practice in the fields of either Mental Health Law, Medical or Medical Negligence or Criminal Law, which I think are the areas which would be most relevant)

The Suicide Act imposes penalties on any one who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide - these are all acts of commission.

As a general rule, our legal system does not treat acts of omission as criminal acts. Where is does so, (offences of strict liability) this is explicitly spelled out. The best known example is perhaps failing to disclose who was driving your car when an offence was committed. However, these are very much the exception.

It I stand by and watch while you drown in 6 inches of water in the local duck pond, my failure to save your life by pulling you out is undoubtedly unethical, but it isn't illegal (I seem to recall this issue arising when some police officers did not go into a frozen pond to rescue a child)

Dr No (I think) drew the parallel of leaving a burglar alarm off so that the burglars can get in.

I don't think the comparison stands. In that instance, the culpability would not lie in having left the burglar alarm off, but in having conspired with the burglars to do so - the 'inside (wo)man' could face charges for conspiracy to steal, but the relent point would be their conspiracy with the burglars. (Leaving or turning the alarm off might be evidence to prove that conspiracy, of course)

If they left the alarm off without such prior knowledge or agreement (even if they knew, or should have known that burglars were operating n the area and were likely to strike) they would not be guilty of any crime.

I think the same applies to the medics in this situation. They did not take any action which caused or assisted the patient to commit suicide, nor did they do any thing to encourage it.


If they had treated her against her will, then, (assuming she had mental capacity) they would have been guilty of assault, and probably false imprisonment as well.

If she lacked capacity then as I understand it, the focus shifts to treating her in her best interests. I think this is reason why the focus was on the Mental Capacity Act not the Suicide Act.

I think the doctrine of necessity argument does not apply where you have a patient who is able to give (or withhold) consent - it is more relevant where someone cannot give consent because they have lost consciousness, or where the patient is a child and is too young to give consent. So far as I can see, that doctrine would only apply here is there was a genuine doubt as to whether the patient had Mental Capacity *and* there was no time to obtain a second opinion or other decision on that point.

Marjorie said...

I feel very sorry for the medical professionals involved in the case but unless this lady was so mentally disturbed at the time she attended hospital that she was incapacitated I think that the advice given was correct.

The letter's relevance would, it seems to me, only arise if the patient lost consciousness, or lost capacity after arriving at hospital, which as far as I can tell, doesn't seem to be the case here.

In my professional capacity I sometimes have to deal with clients with mental health difficulties some of whom may be judges to be incapable of giving instructions - In that situation, if I believe the client does have capacity I am permitted to follow my own judgment. However, if I judge that my client is not capable of providing instructions I have to get that formally confirmed by a psychiatrist (and then the Official Solicitor gets involves which comes down to 'act in the client's best interests') However, it is possible to have significant mental health difficulties but still have 'Mental Capacity'. I assume the same is true about the level of incapacity or mental illness needed to be able to override a patient's wishes.

By the by, some commenters have suggested that the lawyers are uncaring - just as it would be wrong, and unprofessional for a doctor to mislead a patient (for example, to tell her she was not pregnant, because he had an ethical objection to abortion and thought she might ask for one) it would be wrong and unprofessional for a lawyer to give incorrect advice about whether or not the patient’s wishes could be overridden. The lawyers, just as much as the doctors, concerned in this case may well have had personal regrets and suffered sleepless nights over this.

Being the one who has to break unwelcome news does not make you uncaring.

(sorry for such a long comment!)

Dr Grumble said...

Thank you for your comments, Marjorie. There is quite a lot of consistency about the legal view on this. Doctors have difficulty grasping legal views if ethically they appear wrong and it is not surprising that we want to find a way out of this dilemma which is a recurring one though in this case it was starker than usual because of the note and the complexity of the treatment intervention which needed to take place over quite a long period.

Of course one never knows all the details of a case from the papers but having now become an amateur lawyer as a result of my reading related to this problem my own view is that it is likely that interpretations could reasonably have been made by the doctors looking after KW which would have enabled lawful treatment. I was particularly taken with Lord Donaldson's point that the degree of capacity should match the gravity of the decision. If somebody has decided to kill themselves then plainly their degree of capacity should be maximal and it seems clear to me that the way KW presented, her previous behaviour and the underlying psychiatric issues raise sufficient questions for a reasonable doctor to consider her capacity to be less than sufficient to kill herself.

Dr Grumble said...

Official documents state "low self esteem........is not always recognised but it could affect a person's capacity."

I can't imagine that KW had anything other than a low self esteem so, taken with Lord Donaldson's requirement for the level of capacity to be very high to make a decision to kill oneself, you could argue that the doctors were remiss in not finding KW's capacity to be lacking. Certainly this is the route I would have taken.



Source:
http://www.dca.gov.uk/legal-policy/mental-capacity/mibooklets/guide3.pdf

Marjorie said...

that was why I was wondering what the procedure would be, for them to be able to assess her as lacking capacity and to treat her even against her will.

A. Medstudent said...

I know I've come to this a bit late, but having read the comments it seems that it's all getting a bit complicated.

We have been lead to believe in our ethics and law lectures that so long as a patient has capacity (Re:C test and all that), treating them against their will is battery. It is illegal. It seems that in the KW case, much effort was expended in determining that KW DID have capacity. It therefore would have been illegal to treat her.

It may be that some people believe anyone who wants to die must be mentally deficient in some way. That is neither here nor there as the measure of capacity does not involve in-depth psychiatric analysis, it merely asks if the person understands information given to them, believes it and are able to come to a decision. If those criteria are met then capacity is retained, and capacity can still be present in serious mental illness. 'C' himself (of the Re:C case) was a schizophrenic in Broadmoor who believed he was a world famous doctor. He was still deemed competent to refuse potentially life saving treatment.

Whether knowing all that would make me any happier leaving a woman to die when I was 'on-take' is another matter. Perhaps the law is an ass?

Dr Grumble said...

Your summary of the situation is excellent Medstudent but as you say the situation is complicated by the small print of the official documents which imply that even something a slight as low self esteem might be taken as affecting somebody's capacity. Taken with Lord Donaldson's point about the level of capacity required to allow yourself to die this does seem to me to be a way forward for us.

For example it means that if we have a young girl who is very distressed and wants to die because her boyfriend has just walked out on her we can say that there are other fish in the sea but this is not something she can recognise because her capacity has been affected by her acute distress.

The simplistic McClean view as taught to medical students is easy to grasp and has the clarity that lawyers like but it is not good enough for the real world if we are to prevent people who think one thing one day and another the next from killing themselves in the heat of the moment.

witchdoctor said...

Marjory,

“The Suicide Act imposes penalties on any one who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide - these are all acts of commission. 

As a general rule, our legal system does not treat acts of omission as criminal acts. Where is does so, (offences of strict liability) this is explicitly spelled out.”
……….

Your comments have been very helpful in identifying the reason why lawyers seem to be unanimous that the right decision was made regarding this case in spite of the apparent conflict between the MCA and the Suicide Act and helps to dispel the view that an error could have been made.

Still, however, I personally cannot accept the interpretation that, if managing a patient in similar circumstances I would not be complicit in her death if I did not intervene to prevent it when I knew I could. Also, it seems to me the MCA was never intended to come into play in situations such as this.

Giving your example of drowning in a duck pond you mention how failure to act can be unethical but not illegal.

William Armstrong, the coroner involved in this case stated that his view that doctor’s acted correctly was:

“not a moral judgment – it was a judgment based on the law”

This parting of the ways between the law and the medical ethic that most doctors in the UK have adhered to up till now, is a very worrying aspect of this case.

I have expanded on some of the above here:

http://witchdoctor.wordpress.com/2009/10/23/the-kerry-wooltorton-debate/

Witch Doctor said...

Sorry Marjorie, I misspelled your name.

Witches are better at spells than spelling!

WD

Dr Grumble said...

I am not much taken with the duck pond argument. It is not at all the same.

If you are driving a bus and decide no longer to drive the bus it is surely your fault if the bus crashes and the passengers perish. You have a duty as a bus driver to continue to drive the bus safely. If you are a doctor looking after a sick patient you have a duty to look after your patient. If you change your routine and stop looking after your patient that is not really standing by and watching events. It is more like taking your hands off the steering wheel of the bus and allowing it to crash. It is a major deviation from what would ordinarily have taken place just as taking your hands off the steering wheel is. Doing nothing would mean that the normal routine would be followed. A consultant intervening to stop the normal routine is a commission not an omission.

Dr Grumble said...

For those that can access it this is relevant:

http://chestjournal.chestpubs.org/content/137/2/248.full?etoc