05 December 2009

Any clinician will tell you

Here is what one such clinician, an acute admitting physician, told the Joint Committee on the Draft Mental Incapacity Act.

What is the doctor to do if the patient is not incapacitated but merely distressed because of life circumstances? They may have discussed it with friends and relatives, may have written down their request in the form of a suicide note and gone on to take the overdose. We know that the majority of such patients, 19 out of 20, live but regret having taken the overdose. Any clinician will tell you, any psychiatrist will tell you that this business of taking overdoses is part of the very natural history of how distressed and depressed individuals behave. They want out. They want to get out of the situation into a different environment and there are all sorts of feelings of guilt and concern about it. I know from my clinical experience that the next day many of these patients are glad to be alive. It would be a tragedy if suicide notes were deemed valid advance directives. Why do we treat them? For the reasons I have stated. We know that their views are not fixed. Indeed this is part and parcel of the way that distressed individuals behave. They want help, they want a different environment and they want to be surrounded by people who can help them. We know that but at the time that they take the overdose on the Friday or Saturday night their intention may very well have been to kill themselves and they may have thought about that for two or three weeks or even months. I think there are dangers in having advance directives which will freeze in time individuals' so-called wishes when we know in practice that they change over time.


Dr Philip Howard was the doctor who put forward this view on behalf of the Guild of Catholic Doctors. Was that why his views were ignored? Did the committee think he had a religious agenda? Dr Grumble has never revealed his religious views here. He is not going to now. This is not about religion. It is about what is right and what is wrong. It is a shame that the law now views doctors with such distrust that they can no longer act in the best interests of their patients and save their lives when they are in a state of distress.

With thanks to Julie McAnulty

60 comments:

Quasi Serendipita said...

Well put, Dr G. Finally a coherent view point on this issue that I can make some sense of.

befuddled said...

My understanding is that a advance directive is only valid if it has been appropriately notorised via a solicitor. Therefore hand written suicide notes are not even close to being legally binding?

I suspect that legally the presence or absence of a suicide note is irrelevant although would welcome clarification from anyone with a better understanding of the MCA

the a&e charge nurse said...

befuddled, this item summaries the process.
http://www.ageconcern.org.uk/AgeConcern/Documents/FS72Advance_decisions_advance_statements_and_living_wills.pdf

First of all paperwork becomes irrelevant if the patient in front of you has capacity, in which case they can refuse or accept treatment as they see fit, even so there is no statutory requirement for a solicitor's signature to legally validate any document.

An advance decision can only be made by someone over the age of 18 who has the mental capacity to make the decision - the situation regarding children is a potential minefield.

An advance decision to refuse treatment is the only type of living will that is legally binding - the dilemma for doctors & nurses is highlighted in Dr Grumble's main post.

The Mental Capacity Act 2005 provides a legal framework to help 'empower' people to make their own decisions and to make clear what actions carers and family can take.
It puts the law on advance decisions (or living wills) on a clear statutory basis for the first time.
The rules relate particularly to advance decisions to refuse treatment, including refusal of life sustaining treatment.

The transient nature of some forms of self harm (such as impulsive overdose) does not seem to be addressed by the current legislation - so perhaps the size of the multi-disciplinary teams will need to be expanded even further to include the hospital solicitor?

Enzyme said...

Just a handful of quick comments:
First, there's a world of difference between a suicide note and an AD, as one of the contributors here has pointed out already. Anyone who can't tell the difference is suspect from the off.
Second, the numbers who regret a suicide attempt tells us nothing, since we could reasonably expect those who don't regret it to have another go, and thereby place themselves the reach of any opinion poll.
Third, beyond "any clinician will tell you", what's the evidence for the mental state of would-be suicides? And, even if the claim is true in general, it won't tell us a bloody thing about individuals.
Fourth - and, for now, finally, what's the limit of your claim about saving lives? Is there any refusal of life-saving treatment that you would respect?

Julie said...

Hi Enzyme,

I think the issue here is that with the Kerrie Wooltorton case, they decided that the decision to let her die was correct. If the enquiry had concluded that it was incorrect, then things would be clearer. At the moment it is as clear as mud and the Mental Capacity act is as clear as mud; it is full of contradictions. It's a bad piece of law. I don't think any of us here are vitalists; there's a time to save someone and there's a time to let go. But there are a lot of worrying things going on in medicine just now and Kerrie Wooltorton's case has thrown that into sharp relief.

Enzyme said...

Julie -
Who are "they", and what's your reason for saying that the decision was incorrect? I'm no whizz on the MCA, but, if it's really as unclear as you make out, couldn't it be that you've misunderstood it? My understanding of the Wooltorton case was that the coroner ruled that everything was in order.

Julie said...

Enzyme,

do you think the decision to let Kerrie Wooltorton die was correct?

Enzyme said...

Julie -
You raised Wooltorton, not I; I don't think that my take on the case is all that important in this context: you're the one who made the claim.

Anonymous said...

Seems a relevant question to me, Enzyme.

Julie said...

hi Enzyme,

This post is about Kerrie Wooltorton, so of course I bring the subject up.

'They' in this case refers to the coronor and the court that decided the decision re Kerrie Wooltorton was correct.

Enzyme said...

KW isn't mentioned until the comments; and I don't think that what - if anything - I think about that particular case has anything to do with the question I asked Julie. But, since you demanded it: the coroner was, it seems to me, correct in his legal assessment, and I'm inclined to accept the ruling's moral underpinnings, too.

I can't help but to notice that my questions remain largely unanswered.

Anonymous said...

'Inclined to accept' seems to suggest, Enzyme, that you do have doubts about the rights and wrongs of the KW case. Yet KW's wishes were much better documented and considered than is usually possible in such circumstances.

Perhaps you do understand the concern that Julie and very many others have about the sort of situation mentioned by Dr Howard.

Or maybe your view is that anybody with capacity turning up in a hospital saying that they want to die should just be allowed to die.

I wonder how you would feel if it was your daughter who wanted to die after her boyfriend had walked out on her.

Julie said...

Enzyme,

I think the problem with KW's suicide note is that although it wasn't an official AD, it was the deciding factor in the doctors not treating her and it seems to have come under the more general definition of the principle in the Mental Capacity Act that just because someone makes an unwise decision, does not mean that it is an invalid one. The fact that the coroner and court have ruled that the correct decision was taken seems to imply that although a suicide note is not an AD, it can be regarded as significant in a case and so a clinician proceeds to treat at their peril. As I say, as clear as mud.

Julie said...

PS

I mentioned the extract in this post from the Commons Committee in relation to Kerrie Wooltorton on my own blog; Dr Grumble continued the theme in this post, giving credit at the bottom. This is about KW; you've just entered into the middle of a conversation that's been going on for a while Enzyme.

Dr Grumble said...

Enzyme's comments cause me to reread the post and seeing "They want help, they want a different environment and they want to be surrounded by people who can help them" made me even more worried about KW because there were various features in the story which suggested that that was exactly what she was really looking for. But we shall never know.

Anonymous said...

I believe that Kerrie had mental health problems, but i do not know what they were. I have bipolar. When i am happy, i am so unbelievably happy and when i am down you could not even imagine it. I do so want to die as I cant cope with it. My few friends back of as i drag them down. If i had the guts i would kill myself but when i am manic i am so glad i didnt. When i am down i have cut myself sto that people would no of my great pain and help, but nobody does. I just go into psychi and nobody cares.

Dr Grumble said...

Thank you for your comment, anonymous. Sometimes people don't believe doctors. A patient explaining the situation is very much more powerful.

The situation we are worrying about is when somebody like you might be admitted wanting to die. There are those out there telling us that if you want to die and you understand the consequences of your action we should respect your wishes and allow you to die. If patients like you think this is wrong you need to be shouting that as loud as you can from the roof tops.

Enzyme said...

To Anon: well, being pretty certain about the rights and wrongs of the case is compatible with having lingering questions to ask, and being aware that those who disagree with my take on it are not necessarily completely nuts. Cases like this one are interesting just because they're a bit messy.

Julie - I think we have a different opinion of the status of notes and ADs here. An "official" AD makes things easier from an administrative PoV, perhaps - but a note could easily have the same moral status, and I think that the courts'd be open to treating it as legally in the same league.

As far as I can see, the difference between an "official" AD and a note is likely to be something comparable to the difference between a cheque written in a book printed by the bank, and a signed promissory note on the back of an envelope. The latter is, perhaps, trickier, but there's no formal reason why it should be any less binding.

Julie said...

I think we have the same view of notes and ADs, Enzyme; that although it appears that they have a different status according to the MCA, that for practical purposes they don't. Other principles in the MCA are giving suicide notes the same weight as an AD and it was not meant to do this, at least not when the debate re the MCA was going on in Parliament.

Dr No said...

Dr G (and anon) - absolutely right - we need patients to tell the legalists and ethicists that it is not just some quack opinion on our part that these people are in a transient state of wishing to die.

Enzyme - methinks you are either an ethicist or a lawyer or, God forbid, both. I say this because I sense a certain what I can only describe as an armchair smugness about your remarks (eg "Cases like this one are interesting just because they're a bit messy" ). The trouble is that that armchair smugness is almost always based on a deontological position (you must do the "right" thing, regardless of the consequences), where as doctors and patients are grounded in the real world, and live (and die) by consequentalism (consequences matter). That said, I certainly welcome the debate: it is an important (cf "interesting") one and needs to be had, lest some dangerous deontology creep in through the back door (as it did in Norwich).

As Julie has pointed out, this is a very long-running debate that has been going on for 6 weeks or so on several blogs. The question of KW's DNR note and its relevance has been done to death (sic) (it was an informal AD; case law not the MCA applied at the time it was written/used; but it was irrelevant and should have had no bearing because deemed capacity at the time of admission trumped any pre-written AD). Coroner Armstrong's verdict and subsequent comments have also been thrashed out (yes, he was legally correct, but it was based on bad law which fails to recognise the transient nature of suicidal states in the majority of cases). Lastly, all doctors I know, and Julie, are quite comfortable with a time-to-live/time-to-die position. It is bad medicine to strive officiously to keep alive. And if a capacitous individual of sound mind makes, for whatever reason, a determined and durable to decision to kill themselves, then that is not a medical matter.

Kate Middleton said...

Dr No is right. The voices of patients need to be heard on this issue. I am appalled by the legal decision that allowing KW to die was the correct one.

I made my first attempt at suicide by overdose on the evening of 6th December 1982 after a massive psychological and physical assault by a "doctor" with no respect for my autonomy, the truth or medical ethics in the Warneford hospital.

I was completely sane by his own assessment on 17/11/82 - not anxious depressed or suicidal and he was supposed to be giving me "expert counselling". He actually had - in his own words - "no personal experience".

I sent a CD of scans of medical records to Professor Keith Hawton, director of adolescent suicide research at Oxford, earlier this year. He correctly identified my condition at the time and I congratulated him on that fact. My advice for preventing adolescent suicide? Keep them away from "psychiatists".

Nobody would listen to me about what had happened until I went to the police twenty five years later and made a CID statement. The internal notes from the Warneford were then retrieved and not only confimed my story but had a suicide diary in installments which I had written in my study at Radley College.

My problem at the time was precisely as stated. "I need to be out of this place/situation" as I put it in writing at the time. If one of those adults responsible for my welfare had listened to me then I would not have spent my entire adult life suffering from post traumatic effects.

Bullying and sexual assault lead to post traumatic stress disorder and ultimately suicide. It has now been acknowledged in a report by the Care Quality Commission that abuse and bullying in mental hospitals is widespread and leads to lonely death by suicide..

http://www.bullyonline.org/stress/suicide.htm

In this diary, I attributed the beginning of very severe symptoms of psychiatric injury to the day of an examination of my genitals without consent and horriffic bullying afterwards. 25/11/82. 'I have been feeling physically ill for the last 4 days ...'

A key element of complex PTSD is being trapped in a situation and I recorded that as well.

http://www.bullyonline.org/stress/ptsd.htm

The referring GP, Dr Thorne, had said I was "rather upset" and "vulnerable" several times in his referral of 15/11/82. There was no question of my sanity however.

Dr Anthony Storr, "the famous Oxford professor" who "assessed" me the day after the overdose was sent this diary and ignored it. In 1985, I told a Dr McDonald I had the impression that Storr had made up his mid before I entered the room. I was right.

I made several further attempts later on, all induced by abusive treatment by "psychiatrists". I am glad I didn't succeed but not pleased that I am having untangle the mess 27 years later.

The law needs to be clarified in this area. Doctors should save lives. If you go to hospital with and overdose you should expect to be treated. If you really want to die then do it in the woods. It was clearly wrong to allow KW to die. I would have liked to have heard her story in detail; there was surely some abuse in the background.

Here's the diary Storr ignored "I get the impression people aren't taking my feelings as a major part of my problems ..."

http://katemiddleton-lsu.blogspot.com/2009/08/suicide-diary-in-instalments.html

Dr Grumble said...

Thank you, Kate. As Dr No and I have said we need patients with stories like yours to explain to the lawyers and armchair ethicists why they are wrong.

For some reason these people just won't believe doctors. They seem to have got it into their heads that doctors are hell-bent on keeping people alive who no longer wish to be treated. Enzyme's question "Is there any refusal of life-saving treatment that you would respect?" shows how they perceive us. But we are not talking about the sort of people who take themselves to Dignitas. We are talking about people who pitch up in hospital having taken an overdose who, at the time, say they want to die but in the future will be glad they were brought back to life.

Although Enzyme seems disbelieving it is beyond doubt that there are vast numbers of these people. While your story, Kate, may be unique there are many others who are equally glad doctors saved their lives at a time that they though life was not worth living.

the a&e charge nurse said...

Kate Middleton the MCA is said to be driven by "respect for autonomy" (for better or worse).

I don't think patient's can have it both ways?

Either they ARE free to choose, even if they choose badly (assuming they are capacitated), or, Doctors, by virtue of their clinical experience, know best and will treat on the principle of 'best interest'.

You said it was 'wrong' to let KW die, presumably because you believe respect for autonomy cannot be applied in ALL circumstances?

It may be that a % of patients who have taken a potentially lethal overdose come to hospital, not to be saved, but so that they do not die alone, or suffer distressing symptoms? - in other words, there may be an expectation that palliation should still be available to them, even though this may be very difficult for clinical staff?

Dr Grumble said...

That is the nub of the problem, a&e charge nurse, and shows why it is that we would have been better trusting to case law than having things dictated to us by the MCA.

Patients and lawyers think that we should be allowed to decide our own fate and that doctors should be obliged to follow the wishes of their patients. At the same time patients like Kate are glad they were treated at a time when their sanity was not in question yet they wanted to die.

How many of us would be comfortable if our teenage daughter took an overdose after breaking up with her boyfriend, wrote a suicide note and was allowed to die in the local hospital because the doctors felt her wishes should be followed?

the a&e charge nurse said...

Incidentally, Dr Grumble, are you suggesting there is a hierarchy of opinion in which those of a doctor trump those of an 'armchair ethicist?

Many stories circulate about the behaviour of doctors (and nurses) when it comes to how patients die, ranging from DNR orders that are decided without ever involving the patient, to thousands of cases of so called 'slow euthanasia'
http://www.dailymail.co.uk/news/article-1223616/Doctors-admit-practising-slow-euthanasia-terminally-ill-patients.html

It goes without saying the Mental Capacity Act begins with the principle of awarding the biggest say to patients themselves - although as Jack Nicholson says in "A few good men" - "you (the patient) can't handle the truth"?
http://www.youtube.com/watch?v=5j2F4VcBmeo

Dr No said...

I had a look at KW's case through the "lens" of the DPP's guidance on prosecuting cases of assisted suicide here (I am fully aware no charges have been brought, but thought the exercise worthwhile in it's own right).

Item (3) of the factors favouring prosecution reads:

The victim did not have a clear, settled and informed wish to commit suicide; for example, the victim’s history suggests that his or her wish to commit suicide was temporary or subject to change.

KW was very fickle in her plans to die - she was certainly not settled in her wish.

It seems she chose the wrong day/hospital...another time, another place, and she might have lived...

A postcode lottery for completed suicide? That can't be right.

Dr Grumble said...

Dr Grumble, are you suggesting there is a hierarchy of opinion in which those of a doctor trump those of an 'armchair ethicist?
***********

Let's put it this way. If I go to the garage to have my car fixed I prefer to take advice from the mechanic with an oily rag in his hand than the bimbo at the desk who plainly has never seen the underside of a car.

The lawyers and armchair ethicists seem to think that it is common sense that the patient's view should be paramount but those of us who have to roll up our sleeves and deal with problems for real realise that it is not quite as simple as that as I hope Kate's contribution has made clear.

Doctors should not feel ashamed about questioning a law which seems to require us to allow competent suicidal patients to die even when we have good reason to think that if we keep them alive they will one day be grateful to us.

the a&e charge nurse said...

Dr No - I cannot think of any medical condition unaffected by post code lottery.

Maybe you are alluding to the persuasive powers, or tenacity of doctors involved in these difficult kinds of cases?

As you know charismatic personalities are generally more adept at exerting a certain kind of influence (and are thus more likely to get their own way), but of course it is very difficult to legislate for 'charisma'.

Dr Grumble - I am with you on the theory/practice divide.
I have wrestled with patients (preventing them from leaving A&E, etc) not because I am a bully, but because I believed I was acting in their best interest, and until the KW case, regarded such actions as within the law.

Now I'm not sure - but there is one factor that tends to favour NHS staff.

There is no objective, or measurable test for 'capacity' - if staff HONESTLY believe a patient is incapacitated (temporarily) because of the level of emotional arousal, effects of drugs or alcohol, or possible psychiatric symptoms (distorted cognitions due to depression, etc) then we have the law on our side if we impose treatment applying the 'best interest' principle.

Patients may complain about infringement to autonomy but I would argue that a visit to A&E is an implied request for help - and in the context of impulsive self-harm there are almost always enough unknowns/imponderables to argue that (on balance) it is best to assume temporary lack of capacity unless there are very good reasons to think otherwise

Kate Middleton said...

the a&e charge nurse said...
Kate Middleton the MCA is said to be driven by "respect for autonomy" (for better or worse).

Surely patients cannot have it both ways.

I think that these situations are not black and white and where there is the least doubt in a case like KWs the doctor should treat to save life. It is unreasonable and wrong to expect palative care if you are a youngish woman.

KW had been labelled and stigmatised with an "emotionally unstable personality disorder". As Professor Judith Lewis Herman has pointed out in Trauma and Recovery
(a brilliant book) "Borderline" PD - (which is the same thing) is little more than a sophisticated insult.People - usually women- with these labels often get badly treated by "caregivers".

In my experience, it is practically impossible to get any constructive assistance for complex PTSD on the NHS; this is injury rather than illness. The options are clueless GP counsellors or coercive shrinks.

There is a consistent pattern of compassionate, literate GPs in my records over the last 27 years and abusive shrinks. The GPs all recognised trauma but never correctly attributed it to abuse by psychiatists, starting when I was 17. So I wonder how much useful help KW had?

I know a couple of people under the "care" of shrinks (thank God,I'm not) one said that she felt like a "Guinea pig" the other that he feels like a "lab rat". Under those circumstances, life can seem not worth living, especially when the diagnosis socially maginalises someone.

There is a huge difference between someone old and/or with an incurable disease deciding to die and a relatively young woman like KW. Note the comment above from anonymous with "bipolar" about cutting him/herself hoping someone will help and nobody cares. He/she just gets put in a mental hospital.

Someone like that, given constructive assistance in the first place (people do recover from bipolar)might go on to live a good life. The feeling that 'nobody cares' could drive the person into spirals of despair which lead to suicide.

the a&e charge nurse said...

"There is a huge difference between someone old and/or with an incurable disease deciding to die and a relatively young woman like KW".

Agreed, Kate, perhaps I was not making myself clear when using terms like 'palliation'.

To recap, the MCA gives primacy to patients providing they are not lacking in capacity (and the Act assumes ALL adults are competent until proven otherwise).

But the Act does not stipulate that treatment should be withdrawn (by medical staff) once a patient refuses life saving treatment - patients are still perfectly entitled to request palliation of unpleasant symptoms (vomiting, stomach pain, breathing problems, etc) which is NOT the same as life saving treatment (such as administering an antidote to an anti-freeze overdose, for example).

In short the Act over-rides the ethical principles of doctors/nurse who argue that in reality they are facilitating suicide - many of us, including myself do not think this is the right thing to do either for patients or staff.

Dr Grumble said...

Agreed, a&e charge nurse, the question of capacity is the way out here. Dr G has argued that elsewhere. The guidance notes for the MCA support that approach.

Kate, you plainly have a much better understanding of the problems doctors face than the armchair ethicists. You are so right to point out that there is a huge difference between someone old and/or with an incurable disease deciding to die and a relatively young woman like KW.

Dr No said...

A&E Charge Nurse - "In short the Act over-rides the ethical principles of doctors/nurse who argue that in reality they are facilitating suicide"

I'm sure many feel that they would be facilitating a suicide but I don't thing the MCA provides cover because assissted suicde is specifically excluded in S62:

"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)."

Kate Middleton said...

Dr Grumble, Thank you so much for saying that I have an understanding of the practical problems facing doctors.

I do think the question of capacity is critical here and as charge nurse points out allowing someone like KW to die is the wrong thing to do for patients and staff. If you allow someone like that to die, you never know whether life might have radically improved in the future.

After all, she had been 'diagnosed' with an 'emotionally unstable personality disorder'. I do not accept the validity of such a diagnosis but, at the same time, it does suggest that her wish to die might have been temporary.

In my experience, much of the problem lies with the extremely poor manner in which 'mental health problems' such as depression are dealt with by the medical profession and applying stigmatising labels to people which suggest that states are permanent and there is no hope of recovery.

I do some practical experience working with a young man who had been 'diagnosed' with all kinds of problems:autism/Aspergers, dyslexia, dyspraxia etc who was doing a university course.

My approach was the opposite of the psychiatrists who had been pathologising him. I would listen carefully and systematically point out what was right with him rather that what was wrong with him. It was most interesting one day when he turned to me and said, 'you are not like the rest of them, you don't hate me'.

The poor chap had been dragged around to be "assessed" by various professionals who tend to observe rather than engage with people, intent on "diagnosing" them with various 'illnesses' that they intend to treat with drugs or "psycho/the/rapy". It was interesting to observe a positive response from firm, consistent and positive support. CBT techniques were particularly useful.

He did, in fact, become suicidal at one point and I knew that the the departments response was critical. Under such circumstances, by doing nothing one is just as guilty of aiding and abetting a suicide as actively doing something. Unfortunately, my "manager", a notorious and incompetent bully, chose to be dismissive in spite of never having met him.

I wrote a long letter pointing out breaches in health & safety laws etc and was sacked. He ended up in a mental hospital. So I do have some practical understanding of staff being put in unfair positions.

I do understand the meaning of palative care and associate it with an old person/someone with an incurable illness being allowed to die with their pain being eased.

It seems to me to be madness to apply the same principle to a young woman presenting having made a suicide attempt regardless of what she has put in writing. And very unfair to expect people who have gone into a profession to save lives to stand around and watch her die.

There needs to be a firm principle established that if you turn up at A & E, you should expect to be saved - for everyones sake.

Enzyme said...

Doctors Grumble and No both seem to have quite an impoverished view of moral debate... It's not a straightforward case of deontology vs consequentialism, since neither of those approaches to a moral problem will be unified in the answer generated. Each term describes a sort of technique, but the details might still vary (most obviously, there might be a different answer generated by act- and rule-consequentialists).

Nor is it the case that ethicists or lawyers automatically take the patient's view as beyond criticism - at least, none worth his salt does.

Of course, people should be questioning all laws. That's not the same as ignoring them, or being a denialist about the motivation behind them...

Finally, I think that the criticism of deontology articulated by Dr No boils down to either "deontology is wrong because I disagree with it", or "deontology is wrong because it's not consequentialism", and neither of those responses is at all convincing...

Julie said...

'Finally, I think that the criticism of deontology articulated by Dr No boils down to either "deontology is wrong because I disagree with it", or "deontology is wrong because it's not consequentialism", and neither of those responses is at all convincing...'

No, I think Dr No's critisism of deontology boils down to; 'Deontology is not flexible enough to deal with the variety of situations that cross our path and can end up leaving a 26 year old dead.'
A perfectly reasonable conclusion to make and one which has been made by several philosophers, the most famous being John Stuart Mill in his essays on utilitarianism. But I think you knew that already, Enzyme.

the a&e charge nurse said...

The bottom line, Enzyme, is that doctors and nurses (in the main) have great difficulty standing by while a patient in crises tries to kill themselves.

For this reason we will look for a set of principles (or philosophical theory) supporting our position.
The 'best interest' paradigm is an extremely useful framework in my opinion.
http://www.ethics-network.org.uk/educational-resources/mental-capacity-act-2005/best-interests

Personally I think it is difficult (if not impossible) to PROVE with absolute certainty in every case that a patient, by virtue of being in a 'crises', was not overwhelmed, at least temporarily, thus impairing capacity?

Surely if there is doubt we must act in the best interest of the patient - in A&E we have no more than 4 hours to address these delicate issues.

Dr No said...

My latest reply to Enzyme became more a post in its own right - so have posted it here. It is the best I can do to show how and why the MCA is fails - and so how and why those who seek its shelter have got it wrong.

Anonymous said...

Excellent reply you have linked to, Dr No. It brings up the concept of 'dispositional autonomy' which is an attempt to look at the previously stated wishes of someone when they are unable to currently make a decision - looking at their overall 'life direction' / goals / etc. This concept can and should be used in these situations and I think does have some ethically justifiable weight behind it. Agree the law is fine superficially but (being a deontological construct) falls down in these difficult situations. On the other hand, what would you change it to? Hard cases make bad law and all that....

Enzyme said...

Julie - Only reasonable if you've decided that outcomes of a certain sort are the parameter by which moral decisions ought to be judged. If you don't accept that, then you'll disagree. So there's a metaethical dispute at the core of things here - one to do with whether the consequentialists or the non-cons have got their moral theory right. And to settle that, you can't go pointing to the consequences in a given situation without begging the question.

Dr No said...

Anon - interesting that the idea of "dispositional autonomy" is already out there. But I can see it stumbling a bit when the dispositional clashes with the current autonomous choice unless one bites the bullet and accepts that autonomy is not always aligned with best interests.

What would I change? I've written a reply to a comment on my blog that covers this in more detail, but in essence my view is that when the capcitous individual refuses treatment and in so doing is likely to lead to their death then there needs to be an additional test that shows that their descision is a settled decision.

Dr No said...

Enzyme commented as I was writing one. Julie's "Dr No's critisism of deontology boils down to; 'Deontology is not flexible enough to deal with the variety of situations that cross our path and can end up leaving a 26 year old dead.'" is 100% right. Dr No has always distrusted rules (and so deontology) for 1001 reasons (not least the one of who makes the rules) but the clincher for Dr No is deontology is first cousin to Nazism. Once rules matter more than people, and what happens to people, then anything goes.

Achtung!

Julie said...

'Only reasonable if you've decided that outcomes of a certain sort are the parameter by which moral decisions ought to be judged. If you don't accept that, then you'll disagree. So there's a metaethical dispute at the core of things here - one to do with whether the consequentialists or the non-cons have got their moral theory right. And to settle that, you can't go pointing to the consequences in a given situation without begging the question.'

Ah, I see we're onto dear old Euthyphro or a variation of it anyway.

'Is the pious loved by the gods because it is pious, or is it pious because it is loved by the gods?'

Or to put it in the terms of this argument 'Is a judgement approved by law because it is moral, or is it moral because it is approved by the law?'

If you take the view that judgements are moral because they are approved by the law/ethicists/whatever, then Dr No is indeed begging the question, as are you. In such a situation, there is no such thing as right or wrong; only the majority opinion. If on the other hand you take the view that there is such a thing as right and wrong regardless of what is in fashion, then Dr No is not begging the question; he has simply decided that the law is an ass and stuck to the more reliable principle of 'First do no harm.'

Underpinning your argument Enzyme, is a tacit assumption that objectivity is 'right' and subjectivity is 'wrong'. I think you should examine that assumption. It is possible to be 'objective' in a discussion such as this. It is not possible to be 'objective' in the real world; a decision has to be taken one way or the other. Life is subjective and as we say in Scotland, 'Things maun be some wey'.


'metaethical'

I'll use that as my 'am I pissed' test next time I've had too much...

Dr Grumble said...

There is an excellent comment here by the Shrink. His essential point is that the Mental Capacity Act is a good act and the problems are with its interpretation. Dr No essentially agrees. And so does Dr Grumble.

Given how common it is to find oneself dealing with somebody who wants to kill themselves it is disappointing that this situation is not one of the examples explicitly dealt with in the Code of Practice. The Code does suggest that someone being suicidal raises questions about their capacity but against this we have lawyers and coroners and ethicists praising doctors for their approach in the KW case which superficially appears somewhat similar to the everyday cases we see in the Emergency Department.

Julie said...

I think the trouble with the MCA is that you can interpret it any way you please. On the one hand, you could say that KW didn't have a valid AD and so you act in the 'best interest' of the patient and treat. Or you take the view that 'because a patient makes an unwise decision does not make it an invalid one' and as she has asked for treatment to be withheld, you follow that. Either decision is equally valid under the MCA and that is bad law.

One thing that I did not realise, is that the reason that KW was not treated under the Mental Health Act, was because the condition that was to be treated was a physical one (the effects from the overdose). This meant that it had to be dealt with under the MCA, even although it was KW's mental condition that led to the overdose. This is important, because under the MHA you can give treatment against the will of the patient; under the MCA you cannot. I think the MCA needs to go back to Parliament for amendment. Some of the everyday stuff re consent is ok, but on matters such as this it's confused and unclear.

Dr No said...

Julie - you can treat a physical disorder under the MHA as long as it is related to the mental disorder that is causing the detention. So - if KW had been detained, then the MHA could have allowed treatment of her self-poisoning which arose from her mental disorder. If she was not detainable, then she could not have been treated under the MHA. The relevant section is S63.

The other things is that if either act might apply, then the MHA normally trumps the MCA.

the a&e charge nurse said...

" ......... you can treat a physical disorder under the MHA as long as it is related to the mental disorder that is causing the detention".

Yes and no, Dr No - according to one consultant, psychiatrist, Dr Curtis, " .......an overdose is not a symptom of mental disorder, but a consequence of mental disorder. The Mental Health Act allows one to treat the causes (e.g. thyrotoxicosis) and symptoms of mental disorder. The latest edition of the Code of Practice makes this very explicit, and recommends that if there is doubt legal advice should be sought".

There is a fascinating debate on this topic here;
http://www.bmj.com/cgi/eletters/319/7202/107

x3 cases are sometimes cited to illustrate these complexities;
i. In addition to B v Croydon HA ([1995] Fam 133), which is mentioned by Mumford & Mumford (11 July 1999), there are at least three cases which bear upon Hassan et al's well-constructed hypothetical scenario. The solution to the problem, however, seems to require that we do not overlook how the circumstances of Hassan et al's would-be suicide differ from those of the patients in some of the best-known and most important consent cases.

Re C (Adult: Refusal of Treatment) ([1994] 1 WLR 290) concerned a patient who was diagnosed as a paranoid schizophrenic. C, who was a diabetic, developed gangrene in his foot, but refused to consent to amputation. Was his refusal 'valid'? If C lacked sufficient capacity to make a genuinely autonomous decision, then nonconsentual treatment would not have been unlawful. Why? Because the doctors could justify their otherwise unlawful touching in terms of acting in the patient's best interests, consistent with Hunter/Bolam principles. As it happened, the court found that C was capable of making a meaningful judgement about this aspect of his medical care. Treatment in defiance of his competent refusal would have attracted liability.

Re W (A Minor) (Medical Treatment: Court's Jurisdiction) ([1993] Fam 64) centred on the fate of an anorexic 16-year-old female, who refused attempts to feed her, and who failed to be persuaded that relocation to a specialist hospital would be to her benefit. The court in this case held that the disorder in question significantly diminishes capacity for rational choice - i.e., such acute, transient diminution of the capacity for genuinely autonomous decision-making is 'part of the condition of anorexia nervosa itself' (Davies M 1998 Textbook on Medical Law, 2nd ed., London: Blackstone Press, p.136), and force-feeding is in such cases an ineliminable (if unfortunate) part of autonomy-restoration treatment. In any case, the immanent threat to her health and life - and her diminished capacity for informed choosing - meant that the imposition of such treatment as was indicated was not unlawful, even in the absence of her consent.

St George's Healthcare NHS Trust v S (1998) (The Times Law Report 8 May 1998) required the courts to face squarely the issue of a refusal to undergo a caesarean section, where this was clearly indicated (foetal/maternal life was at risk). Despite her protests (S insisted upon a vaginal delivery - preferably in a barn in Wales) S was sectioned under the Mental Health Act 1983, and the caesarean was carried out.

Dr No said...

I agree it's grey: but that is what we need. Strict rules aways fail because there is always the exception that breaks the rule.

What we have here is an argument between state rules (law) and professional discretion. When I take my overdose, I hope I will be managed by a discrete profession, and not by a government rule.

Dr No said...

Having furthered reviewed the BMJ's Rapid Responses linked to above, and the cases mentioned above, I continue to think that where there is uncertainty (ie where we do not have an obviously sane and capacitous individual with a settled intent to commit suicide); the balance swings in favour of treatment.

While it is true the courts have decided both ways (which in and of itself strongly suggests the matter is not settled), there is a bias in favour of treatment. Even the notable well known exception - Re C (Adult: Refusal of Treatment) ([1994] 1 WLR 290) - was grey: part of the patient's delusional system had him as a great doctor competent to make his own decsions...

My earlier comment (16:20 yesterday) was carefully worded: can, not must; could, not should. These areas are so grey that there needs to be room for the individual discretion of the doctor at the bedside. An absolute, definitive legal answer to all cases is too rigid (hard cases make bad law - although for doctors it is ironically the probably the other way round - hard cases make better medicine - because we can learn from them).

Section 63 of the MHA (as amended) reads:

63 Treatment not requiring consent

The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment. (S57/58 being drastic treatment that requires a second opinion)

The key point is what constitutes the borders of "the medical disorder from which he is suffering"? It can - and has - been argued that a physical condition that causes of results from the mental disorder is part of that disorder. I fully appreciate this is all semantics - but it is that semantic laxity that allows us to act.

A couple of quotes from the Rapid Responses sum up what I believe to be the common - and correct - medical opinion:

"However, it would be the worst sort of defensive medicine to fail to provide the life-saving treatment that is a distressed young woman’s human right, because of a fear of the remote possibility of falling foul of the law of battery."

"The way I teach it to my trainees is as follows: I would rather be sued for battery than for wrongful death."

Dr Curtis's stringent assertions are the exception, not the rule.

Another interesting point is made by a philosopher/lawyer (where are the sensible ones this time round?):

"...one cannot safely move from the fact that X insists that she wants to die and/or the fact that she refuses treatment which would thwart her (alleged) desire, to the conclusion that X does genuinely want to kill herself and/or that she did intend to kill herself by means of the overdose. She might have intended any number of things...It is difficult to accept that anyone genuinely wanting to commit suicide - which, again, is not the same as genuinely 'wanting to die/be dead' - would run the risk of frustrating that objective by putting himself in arm's reach of nurses and doctors..."

Again - the uncertainty dominates.

These Rapid Responses were posted a decade ago. It seems a pity we haven't really moved on very much - apart from getting to the point where a woman in her twenties was allowed to die...

The Shrink said...

"I think the trouble with the MCA is that you can interpret it any way you please." - Julie

"I agree it's grey: but that is what we need. Strict rules aways fail because there is always the exception that breaks the rule." - Dr No

That's why I like it. You can apply a common sense approach, interpreted in a range of ways, that's congruent with the MCA 2005, so your practice is lawful.

The law supports good practice, rather than clinical care being compromised to support direction of a rigid law.

Clinicans get to work as they wish, the law supports a range of sensible parctice (rather than directing one absolute How It Shalt Be) and everyone can win.

I like it.

the a&e charge nurse said...

"Clinicans get to work as they wish".

Was this really true of the doctors in the KW case, Shrink?

Having listened in detail to the views of Dr No & Dr Grumble it seems to me they are both arguing that the issue of imposing, or not imposing treatment (following assessment of capacity) is based on too narrow a time frame?

Put simply experience tells us time and time again that a significant number of patients change their minds (about wanting to commit suicide) and are grateful that they have been supported by medical staff during a crises (even if medical staff have behaved paternalistically).

Basing life and death decisions on such a narrow time frame seems to be a dangerous flaw within the MCA and one that contributed toward the death of a young woman like KW?

Dr No said...

A&E Charge Nurse - "Basing life and death decisions on such a narrow time frame seems to be a dangerous flaw within the MCA " - I agree - it is but a snapshot. Hence my suggestion (back on BadMed) that the answer might be an additional test in the case of life-threatening refusals to establish that the decision is a settled decision, and not a whim of the moment. I can also see other advantages to adding such a test in such cases...

The Shrink said...

A&E Charge Nurse, in the KW case they chose to do things in a certain way. I'd suggest that they could have done things differently, but still been congruent with the MCA 2005. Practice can be supported by the MCA 2005, rather than the MCA 2005 directing specific decisions/outcomes on specific issues of clinical care.

It's a grey area, healthcare professionals are used to living with uncertainty (in diagnosis, prognosis and most elements of practice) so it's not too challenging to formultate (and consequently frame things) in the way you'd wish, that's in your patient's best interests.

Julie said...

I think there's too much choice in the MCA, Shrink.

If they had opted to keep KW alive, that probably would have been allowed. But they chose to let her die and that was also allowed and judged as a correct decision.

What bothers me is how much of this decision was due to management being fed up with a regular self harmer clogging up A&E. If this had been KW's first time in A&E, would they have stood back and let her die? I'm not sure that they would.

Ironically, it's the one 'inflexible' feature in the MCA that led to all the confusion. ADs now have a statutory, rather than an advisory status, and at the time, the discussion was round whether KW's note was an AD or not. It wasn't, and it may be in future that it will not carry this kind of weight; on the other hand it may fall under 'patients wishes and feelings'.

Sam said...

"The law supports good practice, rather than clinical care being compromised to support direction of a rigid law.

Clinicans get to work as they wish, the law supports a range of sensible parctice (rather than directing one absolute How It Shalt Be) and everyone can win.

I like it."

You're taking the argument back to square one The Shrink! This is what this whole debate is about; this law allowed room for manouver which led to the death of a physically healthy 26 year old 'In Hospital' while the doctors who could have saved her life stood by and allow it to happen!

When things like that happen, one understands why laws 'have to be' rigid when it comes to matters of life and death; because while you may act sensibly, others won't

This law is flawed! Big time!

Dr No said...

Shrink - Sam makes a good point, and one that Dr No and Witch Doctor (sadly currently not with us) would agree with: some people cannot be trusted. That is the lesson of history.

I have always felt (this is no criticism, just observation) that you are of the Julian of Norwich (!ironic) way - eg your "About Me":

I work with fantastic people. All is well with the world, in my wee corner of it. I am happy.

The trouble is that there are other wee corners, where things are not so well...

I don't think (as yet) you have expressed a view on how you would manage a patient like KW. It would be very interesting to hear what your approach would be!

Anonymous said...

My feeling is that the law pushed the doctors in the KW case into allowing Kerrie to die. The hospital's solicitors were involved and we know that there are many lawyers who take the view that legally the management of the case was correct.

Her life had been saved nine times in the previous year. What had changed in that time? It was the introduction of the Mental Capacity Act which enabled the hospital solicitors to read across from statutes when previously they would have been reliant on much vaguer case law - which would probably have meant that doctors wouldn't even have consulted the lawyers.

According to the Telegraph: "Experts said that before the new laws came in, doctors faced with a similar case to Miss Wooltorton’s would have been likely to insist the patient be treated."

If that is the case the law is surely a bad one. But is it bad law or bad interpretation of the law? If KW had really wanted to die does it really make sense that she appeared in the hospital - as she had done on every one of the nine previous occasions when she was treated? Nobody in their right mind would go to hospital if they didn't want treatment. Which means that KW was not in her right mind. In other words there must have been enough doubt about KW's capacity to have permitted her treatment. This should have been apparent to both the lawyers and the doctors involved in the decision making.

The problem was caused by a new law which was poorly interpreted.

Sam said...

" is it bad law or bad interpretation of the law?"

Both, because a law that allows itself to be misinterpreted is flawed

And I agree with you anonymous, this young woman had no capacity to decide nor would she have gone to hospital if she really wanted to die

Hence, if she would have been treated and her life was saved had their been no Capacity Act 2005, then that act is, again, flawed because laws are not made to harm but to protect from harm ... this act just did the opposite.

(Allowing a terminally ill patient to choose to die is still protecting that individual from harm, in the form of having to endure extreme suffering and pain if not allowed the choice, while in this case this senario did not exist)

Julie said...

If the coroner and the court had come out at the end of their deliberations and said, 'The clinicians misinterpreted the intentions of the MCA, for which we do not blame them, but we do not want this to occur again and make it clear that the MCA cannot be used like this,' then I would feel a lot easier about this. OR if they had said, 'The clinicians should have used the Mental Health Act in this case rather than the MCA,' then I wouldn't have a problem. It's the fact that the coroner and the court have said that that the clinicians took the correct decision that bothers me. It implies that the MCA a) was the correct act to use b)that the correct conclusion was reached using it. I really wish I could see a transcript of the judgement somewhere; it would help. But not even that's available and in such a vital case as well.

Kiwi Survivor said...

I have visited A&E more times than I can remember (literally - I gave myself short-term memory loss) for overdoses. At the time, I wanted to die more than anything else in the world. I have enough reason - I was abused as a child and abandoned - but even when I pleaded with the staff to just let me die, they still saved me. And I believe they were right. I was screaming for help; I just didn't know it at the time. The fact that the help hardly ever appeared is a subject for another time.

I believe that if I had truly wanted to die, subconsciously as well as consciously, I would have chosen something more reliable and permanent. Walk in front of a train or something. But I didn't, and really all I wanted was for the pain to go away, not the world.

For goodness' sake, she called an ambulance. She was imposing her fate on the conscence of others, which is brutally unfair. The natural instinct of the human being is to do all in their power to save another in distress, and her survival was predicated on this instinct. Perhaps she was even relying on it, as her illness twisted her in ever more complicated knots. I cannot place any blame upon those who attended her, because they were put in an untenable position. But I also think that if someone who had been in her position was in attendance, they would have made the decision to save her. I would.

Dr Grumble said...

Thank you, Kiwi Survivor. You have put your point very well.