Radio: iPM on a patient with capacity having her life-sustaining pacemaker deactivated

Last year, the Radio 4 programme iPM ran an item about an adult patient with capacity seeking to have her pacemaker deactivated:

“Who can make decisions about a pacemaker once it’s in my body?’ – After a listener got in touch with an ethical dilemma, we explore what the UK law says about switching off pacemakers and other implanted medical devices.”

Last week, the programme updated the story with details of the deactivation and eventual death of the patient.

“The listener who fought for her pacemaker to be turned off and the US doctor who helps to stop his dying patients’ hearts.”

 

 

Comment: Overreaction? ‘Mentally ill patients sectioned unnecessarily’

The Independent lead today on a story entitled ‘Mentally ill patients sectioned unnecessarily just to gain access to a hospital bed’. To summarise, the House of Commons Select Committee on Health has uncovered ‘more than anecdotal’ evidence that the shortage of voluntary beds for mentally disordered patients has led to doctors sectioning patients under section 2 of the Mental Health Act 1983 (MHA 1983) in order to trigger (rapid) involuntary admission. Under section 2, a patient may be admitted to hospital for mental heath assessment for a period of up to 28 days on the recommendation of two doctors if:

(a)he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
(b)he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

The Indy quote evidence from Dr Julie Chalmers ‘that, in some areas, “being detained is the ticket to getting a bed”’. Simon Lawton-Smith, from the Mental Health foundation is also states on the record that: ‘is [sic] was possible a clinician might section a patient who in the past would not have been sectioned in order to access a psychiatric unit’ (Indy’s paraphrase).

What should we make of this? Obviously, it is very concerning that there are not enough beds available for mentally disordered individuals seeking treatment. Mental health services suffer from underprioritisation, and individuals with mental health issues are subject to much undeserved stigma. People deserve better.

However, I also want to focus on the comments of Stephen Dorrell MP, the chair of the Health Select Committee, who said:

“This represents a serious violation of patients’ basic right and it is never acceptable for patients to be subjected to compulsory detention unless it is clinically necessary.”

I want to try outline how Dorrell’s response is possibly an overreaction, using the following hypothetical example:

Let’s say I’m a GP, and I have a patient, Nigel, who has possible mental health issues, but is not at present a risk to himself or others. Nigel, says that he would consent (let’s stipulate that he is able validly to consent) to mental health assessment and treatment on a voluntary basis. I explain to Nigel that there is a long waiting list in our area, and it is unlikely that he will be seen for assessment for some considerable time. I offer him the option of sectioning under section 2 MHA 1983, and explain the risks to him. In particular, I stress that discharge in involuntary detention cases is reliant on doctors’ clinical assessments, whereas voluntary patients can withdraw consent, which in principle will result in discharge (although the patient who withdraws consent runs the risk of being sectioned). Nigel consents to sectioning, and a colleague and I do the relevant paperwork.

To the extent that Nigel is not at present a risk to himself or others, Dorrell is right that sectioning is not clinically necessary. However, on the example that I have given, a) arguably sectioning is necessary, since it is the only way to access services in a timely fashion and b) it is hard to see how Nigel’s rights have been violated. On my scenario, Nigel’s interest in accessing mental health services has been promoted; he has voluntarily consented to being ‘involuntarily’ detained in order to receive the assessment and possible treatment he needs. Of course, the situation is not ideal, given the risk of actual involuntary detention once the 28 day period is up. However, if Nigel is aware and willing to accept this risk,* why should we deprive him of this option?

Of course, I have no evidence to suggest that this is what patients and doctors actually do in order to access mental health services.** Nevertheless, cases like Nigel’s may provide a plausible explanation for the some of the increase in sectioning. And if cases like Nigel’s do exist, I argue that what patients and doctors do is not wrong: they merely collude to game a dysfunctional system. If so, Dorrell (and others) should avoid making simplistic statements about people’s’ rights being violated when in fact they are being vindicated in a non ideal fashion.

*The risk might be mitigated if the treating mental health professionals are made aware that Nigel should really be a voluntary patient.

**Although Nigel’s case is perhaps analogous to those in which doctors manipulate insurance systems in order to provide care to the uninsured, for which there is substantial evidence.

News and comment: Divisional court decision in Nicklinson

The Divisional Court has today decided against the applications brought by Tony Nicklinson and ‘Martin’ challenging the law governing murder and assisted suicide. In a judgment which rejects almost every argument made on behalf of Mr Nicklinson and ‘Martin’, the Administrative Court reiterated earlier court decisions that the law in this context could only be changed by Parliament:

75. The reasons given in Bland and in Inglis for saying that it is for Parliament to decide whether to change the law on euthanasia are compelling and should be followed by this court. The reasons have to do with competence, constitutionality and control of the consequences.

76. As to competence, the subject is profoundly difficult and complex, raising a myriad of moral, medical and practical considerations. . . .

79. As to constitutionality, it is one thing for the courts to adapt and develop the principles of the common law incrementally in order to keep up with the requirements of justice in a changing society, but major changes involving matters of controversial social policy are for Parliament. . . .

84. A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

85. As to control of the consequences, it is hard to imagine that Parliament would legalise any form of euthanasia without a surrounding framework regarding end of life care and without procedural safeguards. . . .

86. It would be impossible for a court to introduce, still less monitor, any such regime.

87. For all of those reasons it would be wrong for the court to depart from the long established position that voluntary euthanasia is murder, however understandable the motives may be, unless the court is required to do so by article 8.

The arguments under Article 8 were dealt with relatively briefly. Although there was agreement that the applicants’ Article 8(1) rights were engaged, the court found that the decisions in Pretty were conclusive on the issue of Article 8(2):

121. The only general principles which the Strasbourg court has expounded are that the right of an individual to decide how and when to end his life is an aspect of the right of respect for private life within article 8 and that states have a wide margin of appreciation in this area. For reasons which I have already given, I am satisfied that the law maker in this area (euthanasia) should be Parliament, just as Lord Hope and others said in Purdy that Parliament should be the law maker in the area of assisted suicide. Furthermore, since it has been held by both the House of Lords and the Strasbourg court [in Pretty] that a blanket ban on assisted suicide is not incompatible with article 8, the same must apply with added force to the ban on voluntary euthanasia.

In relation to Martin’s case, which challenged the differential treatment of professionals who assist in suicide under the Director of Public Prosecutions’ policy on prosecution, the court held that the policy meets the requirements of Article 8 as mandated by the House of Lords in Purdy:

138. The DPP has in my judgment done what was required of him by the decision in Purdy and it would be wrong to require him to do more.

139. From the DPP’s policy statement, I believe that it would be clear to a person who, in the course of his profession, agreed to provide assistance to another with the intention of encouraging or assisting that person to commit suicide, that such conduct would carry with it a real risk of prosecution.

In an article in Legal Studies in 2010 on the DPP’s policy, I wrote:

The dangers sought to be addressed by the policy focus on the unscrupulous or even abusive family member or friend, and the healthcare professional or activist. The shift of focus away from the victim, and the desire to avoid the appearance of the creation of a regulatory regime, have opened the door to assisted suicide in cases which would not be permitted by most of the existing regulatory regimes, while exposing to the risk of prosecution those with much-needed expertise and those who agree with the victim’s decision.

Unsurprisingly, the policy begins with the reassurance that ‘only Parliament can change the law on encouraging or assisting suicide.’ While Parliament has been unwilling to undertake formal legal change on assisted suicide, informal legal change has been accelerated by the House of Lords’ surprising decision in Purdy, coupled with a DPP willing to create an expansive policy covering all assisted suicides rather than just those which take place in another more permissive jurisdiction. The DPP has done so by implicitly describing (albeit imperfectly through the use of factors for and against prosecution) a class of assisted suicides which are permissible.

In England and Wales, we are now in uncharted territory, with a reluctant legislature, little guidance from the courts and an opaque process of informal legal change by prosecutors.

Lord Justice Toulson was keen to rebut this contention (which had also been put forward by the Commission on Assisted Dying, as quoted in paragraph 135 of the judgment). Instead, he asserted that the factor-based approach lay on the right side of an important “constitutional boundary”:

143. . . . For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non-prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion.

According to Toulson LJ, it is therefore the very imperfectness of the DPP’s policy which prevents him from having usurped his authority. And yet in Purdy, Lord Hope asserted that “it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.” (para. 55) This suggests that the policy could have identified “a class that requires special treatment”.

Overall, though, the court’s message is clear. This is not a matter for the courts, but only for Parliament. The unusual step taken in Purdy must be seen as an isolated instance of judicial activism centred on the precise requirements of Article 8(2). For further legal change, unless the higher courts are more sympathetic to developing the defence of necessity, Mr Nicklinson and Martin will need to look to Parliament, which seems unlikely to take such a step.

Addendum: One further interesting aspect of this decision is the extent to which it cites and relies on the report of the Commission on Assisted Dying, chaired by Lord Falconer and evidence given to it, including evidence given by the Director of Public Prosecutions. Although the Commission was independent of government and Parliament, its report seems to have influenced the court on a number of points (see, eg, paragraphs 24, 37-38, 76-77, 85, 130-133, 135).

News: Switzerland decides against regulating assisted suicide

The Swiss process of reviewing the legal regulation of assisted suicide has ended with a decision by the Federal Council not to regulate either organised assisted suicide or ‘suicide tourism’, as was originally proposed in 2009. The Federal Council reached the view that the practice of assisted suicide is already adequately regulated through the Penal Code, the Therapeutic Products Act, the Narcotics Act and professional rules. The Federal Council described continuing goals of suicide prevention and promotion of self-determination at the end of life including the choice of palliative care rather than assisted suicide:

the Federal Council wishes to continue to support the prevention of suicide, palliative care, and the care and treatment of people with terminal, life-threatening and chronic illnesses. The focus is on improving self-determination at the end of life. To this end, the public should be made aware of the alternatives to suicide.

News: assisted suicide in Switzerland on the KCLMEL blog

The law and practice of assisted suicide in Switzerland will be much discussed this week following the broadcast of Terry Pratchett’s documentary. Earlier posts have discussed the Swiss government’s plans for reform of the law, and a recent court decision allowing the defence of necessity in a case of euthanasia (termination of life on request).

The DPP’s policy on prosecuting cases of assisted suicide, including cases in which the assisted suicide takes place in Switzerland, has been discussed in a series of posts, the links to the most recent of which can be found in this post on the Caractacus Downes case. Earlier posts on the interim policy and the Purdy case can be found by scrolling through the posts tagged ‘Switzerland’.

News: Switzerland court allows defence of necessity in a case of termination of life on request

While the legal position of assisted suicide in Switzerland is well-known, termination of life on request has been less discussed. In addition to the offence of murder, some civil law jurisdictions have a separate, lesser offence of consensual homicide or termination of life on request. This is the case in Switzerland, where Article 114 of the Penal Code provides that: ‘Every person who shall for honourable reasons, especially mercy, kill a person on his or her serious and pressing request, shall be liable to imprisonment.’

In 2009, Daphné Berner, a retired physician who was a member of the organisation Exit, terminated the life of a woman with Amyotrophic Lateral Schlerosis (ALS) who had, subsequent to her repeated requests for assistance with suicide, lost the ability to perform the suicidal act herself as a result of a sudden deterioration in her condition. The judge in Neuchâtel found that it “would have been cruel not to act” and that the defence of necessity was applicable to the defendant’s actions and therefore acquitted her.

The decision may have limited value as a precedent as the judge found it significant that the defendant’s initial intention had been only to assist a suicide; the termination of life on request was not “premeditated”. Moreover, the decision is likely to be appealed by the prosecutor to the Tribunal fédéral, and until then it is not in force.

Update (4 January 2011): the prosecutor has decided not to appeal but he stated publicly that the decision of the Neuchâtel court would not be binding on other courts.

Parliamentary debate: End of life assistance (Scotland) Bill

“Publication of the Stage 1 Report on the End of Life Assistance (Scotland) Bill – Thursday 18 November 2010 and Stage 1 Debate on the End of Life Assistance (Scotland) Bill – Thursday 25 November 2010

The report, along with a news release, will be available from about 7am on the Parliament’s website.

The Scottish Parliament will hold its Stage 1 debate on the Bill on Thursday 25 November 2010. This debate will commence at 2.55pm in the debating chamber of the Scottish Parliament.

Following this debate the Parliament will vote on the Bill at Stage 1 (as part of Decision Time at 5pm on 25 November). If the Parliament approves the Bill, it will proceed to Stage 2 (Committee amendment stage). If the Parliament does not approve the Bill, it will fall.

You will be able to watch the debate online at www.holyrood.tv.”

Award: Dr Neema Sofaer wins Mark S. Ehrenreich Prize in Healthcare Ethics Research

Dr. Neema Sofaer, who is a Wellcome Trust Post-Doctoral Research Fellow at the Centre of Medical Law and Ethics, has won the Mark S. Ehrenreich Prize in Healthcare Ethics Research, which is presented annually by the International Association of Bioethics and the Pacific Center for Health Policy and Ethics. Neema won this award together with her Harvard-based co-author Nir Eyal for Sofaer, N. and N. Eyal (2010). “The Diverse Ethics of Translational Research” forthcoming in the American Journal of Bioethics as a target article.

News and Comment: first application of DPP’s Final Policy on assisted suicide

In the first case in which the DPP’s Final Policy on Prosecutions for Assisted Suicide has been applied, the DPP has decided that it would not be in the public interest to prosecute Caractacus Downes, the son of Sir Edward and Lady Joan Downes.

In July 2009, the conductor Sir Edward and his wife Lady Joan ended their lives at the Dignitas clinic in Zurich. Sir Edward was described as “almost blind and increasingly deaf” in a statement released by the couple’s children, while Lady Joan was described as “terminally ill”.

Following a police investigation, senior Crown Prosecution Service prosecutors determined that no public interest determination was necessary in relation to the couple’s daughter, Boudicca — who lives in Rome and met her parents and brother in Zurich — as “there is no evidence that she undertook any act in England and Wales that could have assisted her parents in committing suicide.”

The CPS found that the couple’s son, Caractacus, had booked a hotel room in Switzerland for his parents before leaving England with them and accompanying them to Zurich.

“We have considered carefully whether these acts can properly be characterised as assistance for the purposes of section 2(1) of the Suicide Act 1961. Whilst we recognise that some may take a different view, we are satisfied that, taken together, such acts are capable of constituting assistance. As Mr Downes fully accepts that he undertook those acts, there is sufficient evidence to provide a realistic prospect of conviction for an offence contrary to section 2(1) of the Suicide Act 1961 in accordance with the Full Code Test, as set out in the Code for Crown Prosecutors (the Code).”

Thus the CPS then considered whether such a prosecution would be in the public interest, applying the factors from the Final Policy:

“With regard to factors tending in favour of prosecution, it is clear that both Sir Edward and Lady Downes were able to undertake the acts that Mr Downes undertook on their behalf.

However, with regard to factors tending against prosecution, it is also clear that Sir Edward and Lady Downes had each reached a voluntary, clear, settled and informed decision to commit suicide.

In the context of those decisions and the steps taken by Sir Edward and Lady Downes to give effect to their decisions, the actions of Mr Downes, although sufficient to come within the definition of the offence, were very much only of minor assistance.

The evidence and information available indicates that Mr Downes was wholly motivated by compassion.

The police have confirmed that Mr Downes reported his parents’ suicide to them through his solicitor and that he fully assisted them in their enquiries into the circumstances of his parents’ suicide and his part in providing assistance.

There is information to suggest that Mr Downes has benefited financially from the death of his parents as a result of their wills. It might be said, as a result, that it is difficult to conclude that he was wholly motivated by compassion in giving his parents the assistance that he did.

The relationship between compassion and financial gain is considered in paragraph 44 of the Policy. There, it is recognised that a suspect may gain some benefit from the resultant suicide of the victims. The Policy states that the critical element to consider is the motive behind the suspect’s act. If it is shown that compassion was the only driving force behind his actions, the fact that the suspect may gain some benefit will not usually be treated as a factor tending in favour of prosecution.

Having reviewed all the available information, we have concluded that this is a case where the only driving force behind Mr Downes’ actions was compassion. Accordingly, we do not regard the fact that he stands to gain financially in accordance with the terms of his parents’ wills as a factor tending in favour of prosecution in this case.

Having assessed the public interest factors in accordance with the Code for Crown Prosecutors and the Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, we are sure that the public interest factors tending against prosecution outweigh those tending in favour. As a result, consent has not been given to the bringing of a prosecution against Mr Downes for his part in the suicide of his parents.”

The decision is unsurprising, given the large number of similar cases in which no prosecution has been brought. It is interesting, though, that no mention was made by the DPP of factors 4 and 5 against prosecution:

4. the suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide;

5. the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide;

As I have recently written in the Solicitors Journal, these two factors

“encapsulate an idealised scenario that involves an unwilling ‘suspect’ and a determined ‘victim’ . . .

No reasons for the inclusion of these factors have been provided, although they were supported by two thirds of consultation respondents.

What if the suspect is fully supportive of the victim’s decision, recognising that the victim has reached his or her own decision and agreeing that it is the right course of action for him or her in the circumstances? Does this make prosecution more in the public interest than if the suspect is ‘reluctant’ and sought to ‘dissuade’ the victim? Factor 4 envisages the decision to seek assisted suicide as an unwise or irrational decision from which the person should be dissuaded, or at least suggests that this is how the ideal suspect should react to the decision. The inclusion of these two factors seems to prescribe a certain kind of emotional reaction on the part of a family member or friend to the victim’s condition; for example, not accepting a terminal diagnosis, or wanting the person to remain alive as long as possible.”

It will be worth watching whether these factors are omitted from further decisions on the application of the Final Policy. If they are applied in future cases, it will be interesting to see how this will work.

More difficult cases will undoubtedly emerge, including those where:

• the assisted suicide takes place within England and Wales

• the act of assistance is not a minor one

• a healthcare professional has provided assistance

In relation to the latter, a decision is expected next month in the case of Dr. Michael Irwin, who paid for his patient Raymond Cutkelvin’s flight to Zurich. Dr. Irwin was also involved in the earlier assisted suicide of Patrick Kneen.

News: DPP speaks about assisted suicide guidance on the Today programme

The Director of Public Prosecutions gave an interview to the Today programme this morning on the final guidance on assisted suicide prosecutions which will be released later today. Nearly 5000 responses were received during the consultation period.

The DPP said that in the final guidance “there has been a change of focus, in particular on the factors against prosecution, and we’re  now concentrating very much on the acts and the motives of the suspect, rather than the characteristics . . . of the victim.”

More details are on the BBC News website and in an article by the DPP in today’s Times.