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

23 July 2010

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

19 March 2010

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

25 February 2010

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.

News: Professor Sir Ian Kennedy, CMLE founder, appointed as Chair of Independent Parliamentary Standards Authority

4 November 2009

Professor Sir Ian Kennedy, founder of the Centre of Medical Law and Ethics at King’s College London, and of the Centre’s MA in Medical Ethics and Law, has been appointed as Chair Designate of the Independent Parliamentary Standards Authority.

News and Comment: High Court to decide on withdrawal of treatment from baby

2 November 2009

The High Court has been asked to decide on the best interests of RB, a one-year old child with congenital myasthenic syndrome (CMS). RB’s mother is supporting the NHS Trust’s application to withdraw life-sustaining treatment from RB, while his father opposes the application.

In such cases, a balancing approach is used by the court, looking at the child’s quality of life:

The judge must decide what is in the child’s best interests. In making that decision the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the patient (In re J [1991] Fam 33 [Athens login required]). There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable (In re J). The term “best interests” encompasses medical, emotional, and all other welfare issues (In re A [2000] 1 FLR 549 [Athens login required]). The court must conduct a balancing exercise in which all the relevant factors are weighed (In re J) and a helpful way of undertaking this exercise is to draw up a balance sheet (In re A).

Portsmouth Hospitals NHS Trust v Wyatt and another [2005] EWCA Civ 1181, [87].

In earlier cases, the test adopted was that treatment should be provided unless the child’s life post-treatment would be “intolerable” (Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421, 1424 (Dunn LJ, CA) [Athens login required]; Re J [1991] Fam 33, 55 (Taylor LJ)) [Athens login required]. The test of intolerability has since been abandoned, in favour of the balancing approach described above (Burke [2005] EWCA Civ 1003, [62]-[63]; Portsmouth Hospitals NHS Trust v Wyatt and another [2005] EWCA Civ 1181, [76].)

On the RB case, the Guardian is reporting that:

If the hospital succeeds in its application, it will be the first time a British court has gone against the wishes of a parent and ruled that life support can be discontinued or withdrawn from a child who does not have brain damage.

This assertion relies on a very fine distinction (between withdrawal, and withholding following withdrawal) made by Holman J. in An NHS Trust v B and others [2006] EWHC 507, [101]-[102]. In that case, Holman J. ruled in favour of continuing ventilation (against the recommendation of the NHS Trust) of MB, aged 18 months, who was suffering from type 1 spinal muscular atrophy (SMA):

M has age appropriate cognition, and does continue to have a relationship of value to him with his family, and does continue to gain other pleasures from touch, sight and sound. . . .  It is impossible to put a mathematical or any other value on the benefits. But they are precious and real and they are the benefits, and only benefits, that M was destined to gain from his life. I do not consider that from one day to the next all the routine discomfort, distress and pain that the doctors describe (but not the ones I have now excluded) outweigh those benefits so that I can say that it is in his best interests that those benefits, and life itself, should immediately end. On the contrary, I positively consider that as his life does still have benefits, and is his life, it should be enabled to continue, subject to excluding the treatment I have identified.

In that case (at [11]), Holman J. asserted the uniqueness of the case before him:

There have been legal cases and decisions in which approval has been given for the withdrawal of life support from, followed by immediate death of, brain dead or severely brain damaged children or patients. And there have been legal cases and decisions (of which the case of Charlotte Wyatt is an example) in which advance approval has been given not to embark upon (i.e. to withhold) forms of treatment or life support, if later needed, if the condition of a child is very poor. So far as I am aware, no court has yet been asked to approve that, against the will of the child’s parents, life support may be withdrawn or discontinued, with the predictable, inevitable and immediate death of a conscious child with sensory awareness and assumed normal cognition and no reliable evidence of any significant brain damage.

Holman J. then went on to distinguish another case involving type 1 SMA, Re C (a minor) (medical treatment) [1998] 1 FLR 384 (Athens login required), in which Sir Stephen Brown (the then President of the Family Division) held that it was in the 16 month old child’s best interests “that she be taken off ventilation and that it should not be reintroduced if she should suffer a further respiratory arrest.” Holman J. explained the distinction between the two SMA cases as follows (at [13]):

She [C], like M, was conscious. Further, she was able to recognise her parents and to smile. However, unlike M, she was only on intermittent positive pressure ventilation. The doctors considered, and the parents agreed, that she should be weaned off that ventilation before she became fully dependant upon it. The issue was whether, if or when she suffered a respiratory arrest, positive pressure ventilation should be restarted. The parents sought an order that it should be, but Sir Stephen Brown P declined to grant one, in part because of the well established principle that a court will not order a doctor to undertake a course of treatment which the doctor is unwilling to do; but also because Sir Stephen expressly held that it was in the best interests of the child not later to reimpose ventilation if needed. Since the doctors considered that a respiratory arrest would be inevitable the case is very close to the present one. But it did not involve or contemplate the immediate death of the conscious child; and the actual withdrawal of intermittent ventilation was agreed to, and supported, by the parents.

I’m not entirely convinced by this distinction. Is it substantial enough to bear the weight placed upon it by the Guardian? Certainly the case of RB is not as unique as the Guardian suggests.

It is always difficult to assess the best interests of a baby when deciding whether treatment should be continued or withdrawn. The factors which were important for Holman J. in MB were the existence of an interactive relationship with the parents, and the capacity to experience pleasure. Based on the media reports of the RB case, these factors appear likely to play a significant role in the High Court’s decision.

News and Comment: Switzerland considers plan to restrict suicide tourism

29 October 2009

In Switzerland, assisted suicide is criminalised only where the assister’s motive was selfish rather than compassionate. (Penal Code, Art. 115).  When it was originally drafted, medically-assisted suicide for the terminally ill was not envisaged as a possible use of the relevant article of the Penal Code: “the whole discussion did not envisage assisted suicide from a medical perspective. Instead, it was inspired by romantic stories about people committing suicide in defence of their own, or their family’s, honour and about suicides committed by rejected lovers.” (Olivier Guillod & Aline Schmidt, ‘Assisted suicide under Swiss law’ (2005) 12 Eur. J. Health L. 25, 29 (Shibboleth login required)). However, the current use of the Penal Code provision is well-known, and for some time the Swiss Government has been troubled over the increase in suicide tourism. The Swiss Minister of Justice has now announced plans to send two different draft bills to Parliament for debate. The option favoured by the Government would regulate the practice of organised assisted suicide (currently by Exit Deutsche Schweiz, Exit ADMD (Association pour le droit de mourir dans la dignité), Dignitas and Exit International). The regulation proposed focuses on ensuring an informed, voluntary and well-considered request for assistance in suicide including a mandatory discussion of alternatives; independent medical certification of capacity; independent medical certification of a terminal illness; medical involvement in the prescription of the drug used; and provisions to ensure that assisted suicide is non-commercial and that only costs and expenses can be recovered. The explicit aim of the proposals is to prevent “the negative aspects and abuse of organised assisted suicide . . . and [to reduce] ‘suicide tourism’ . . .” The terminal illness requirement would be a new one for the Swiss, although it finds a precedent in the Oregon legislation (and the UK Assisted Dying for the Terminally Ill Bill). The press release observes that:

“This would rule out organised assisted suicide for those with chronic illnesses that are not in themselves terminal, and for those suffering mental illness. Comprehensive treatment, care and support, in the sense of palliative medicine, should allow these people to continue to live in dignity.”

Certainly such a requirement would have prevented some of the British persons who have recently obtained assisted suicide in Switzerland from doing so, including Daniel James and Sir Edward Thomas Downes. The requirement of medical involvement in the prescription of the drug used appears to be aimed at Dignitas, which, according to media reports, has recently been using helium (which does not require medical involvement) to assist in suicide, in order to avoid local regulation in the canton of Zürich requiring that non-residents seeking assistance in suicide have at least two interviews with the doctor who prescribes the lethal medication. Apparently because of a split in the Government, a second and much more radical option has also been tabled: a complete ban on organised assisted suicide. According to the press release:

“This option rests on the belief that individuals working in assisted suicide organisations are never actually motivated by purely altruistic reasons, and may develop a close relationship with the suicidal person.”

The May 2009 Federal Department of Justice and Police Report on Organised assistance with suicide, which led to the current proposals, is available in French, German and Italian. The Times believes that the move will “set off a rush of patients from Britain and elsewhere in Europe since Switzerland has become the main destination for those seeking assisted suicide.” As approximately 75% of all assisted suicides in Switzerland are cases of terminal illness, this may be an over-statement. Terminally ill patients will not be hugely affected by the proposed regulatory changes of the preferred option. However, this proportion does seem to be falling, and this is clearly of concern to the Swiss Government who view the liberalisation of the criteria used by Dignitas and Exit Deutsche Schweiz as a worrying development (Report, §2.1). The data here is from Fischer et al., ‘Suicide assisted by two Swiss right-to-die organisations’ (2008) 34 J Med Ethics 810-14, Tables 1 & 4 (Shibboleth login required), which is cited in the Report, §2.1, n. 17.

News: an advance decision to refuse treatment following a suicide attempt

1 October 2009

The inquest into the death of Kerrie Wooltorton has recorded a narrative verdict. According to BBC News, “Miss Wooltorton wrote her living will in September 2007, asking for no intervention if she tried to take her own life. She died four days after being admitted to hospital for drinking anti-freeze. . . . The hearing in Norwich on Monday was told Miss Wooltorton had mental capacity and had the right to not consent to medical intervention.”

The BBC reports excerpts from the verdict:

“Even when she was losing consciousness she was absolutely clear in refusing treatment . . . The doctor went over and above what was required of him.”

“He discussed the case with clinical colleagues, took a second opinion from a fellow consultant and sought advice from the medical director.”

“A deliberate decision to die may appear repugnant, but any treatment to have saved Kerrie’s life in the absence of her consent would have been unlawful.”

“She had capacity to consent to treatment which, it is more likely than not, would have prevented her death.”

“She refused that treatment in full knowledge of the consequences and died as a result.”

Advance directives, living wills or advance decisions are decisions made while a person is competent regarding the treatment and care of that person once he or she becomes incompetent. The Journal of Medical Ethics published an interesting article on this topic last year: D Sontheimer. Suicide by advance directive. Journal of Medical Ethics 2008;34:e4. (You will need an Athens account to access this.)

Both Sky News and the BBC reported earlier today that Ms Wooltorton’s ‘living will’ was binding because of the Mental Capacity Act 2005. This is incorrect; the relevant provisions of the Act (ss.24-26) did not come into force until 1st October 2007 and this case occurred in September 2007. The validity of her advance refusal was governed by the common law. (Had it been governed by the Act, the advance decision would not have been valid unless it was witnessed (s.25(6))).

The common law allowed persons to refuse unwanted treatment in advance of incapacity (In re T. (Adult: Refusal of Treatment) [1993] Fam. 95; Airedale NHS Trust v Bland [1993] AC 789; Re C (Adult Refusal of Treatment) [1994] 1 WLR 290; Re AK (Medical Treatment: Consent) [2001] 1 FLR 129; HE v A Hospital NHS Trust [2003] 2 FLR 408). This was not a “grey area”, as described by Andrew Jones to Sky News Online. The following quotation from Lord Goff’s speech in the House of Lords decision in Airedale NHS Trust v Bland [1993] AC 789, 864 makes this clear:

“First, it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so . . . To this extent, the principle of the sanctity of human life must yield to the principle of self-determination . . . and, for present purposes perhaps more important, the doctor’s duty to act in the best interests of his patient must likewise be qualified.  On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B v Hotel-Dieu de Quebec (1992) 86 D.L.R. (4th) 385.  Moreover the same principle applies where the patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred: : see, e.g., In re T. (Adult: Refusal of Treatment) [1993] Fam. 95.”