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The Oxygen of Morality


Posted by Dr No on 09 October 2009

kerrie1.jpgKerrie Wooltorton is dead. But she isn’t going to go away. Her sad suicide, and the aiding and abetting of that suicide by her doctors, have opened a door to a cesspit of legal incompetence and medical Eichmannship.

For those who have been frying fish for the last few days, KW was a woman with both depression and emotionally unstable personality disorder who wanted to kill herself. That’s what she said, anyway.

Her method was self-poisoning by anti-freeze. She had several goes, all of which failed. At her last attempt, she got the dose right. She did not wish to die alone and in pain. So she presented to her local casualty, asking for pain relief and comfort, but no life-saving treatment. She said this verbally, and in her so-called “living will”:

14/09/2007 To whom this may concern

If I come into hospital regarding an overdose or any attempt of my life, I would like for NO life saving treatment to be given. I would appreciate it if you could continue to give medicines to help relieve my discomfort, painkillers, oxygen etc. I would hope these wishes would be carried out without loads of questioning.

Please be assured that I am 100% aware of the consequences of this and the probable outcome of drinking antifreeze, eg death in 95-99% of cases and if I survive then kidney failure, I understand and accept them and will take 100% responsibility for this decision.

I am aware that you may think that because I called the ambulance I therefore want treatment, THIS IS NOT THE CASE! I do however want to be comfortable as nobody wants to die alone and scared and without going into details there are loads of reasons I do not want to die at home which I realise you will not understand and I apologise for this.

Please understand that I definitely don’t want any form of ventilation, resuscitation or dialysis. These are my wishes please respect and carry them out.

Yours sincerely

Kerrie Wooltorton

This placed her doctors in a bit of a spot. On the one hand, the Suicide Act 1961 makes it an offence to aid and abet a suicide, while on the other hand the Mental Capacity Act 2005 requires a doctor to respect the will of a capacitous individual.

Good doctors know better than to let any bull, let alone a legal bull, toss them in the air. They know there will be sharp horns waiting for them when they land.

Good doctors belong to a profession with a long and noble moral tradition, and that tradition provides a moral compass that enables a doctor to steer with confidence through the foggiest of medico-legal minefields.

But this didn’t happen in Norwich.

Instead, it appears the doctors in Norwich waved their hands in the air and bleated “Help we don’t know what to do!”. They shirked their duty – which includes making decisions in difficult circumstances – and passed the buck. There is a name for this process: it is called the collusion of anonymity.

This is very sinister. For not only did these doctors pass the buck, they also in so doing agreed to subjugate their conscience to a third party.

Unfortunately, the third party was a bunch of legal contortionists and that collection of clowns known as the hospital managers, including, of course, the medical director.

These clowns and contortionists, at their remove from the bedside, came to the view that the MCA, and so KW’s living will, held sway. The doctors at the bedside were ordered to stand back, and allow KW to die. We do not know what care and comfort, if any, they did provide to this poor woman.

The Wooltorton family have decided to sue the hospital. That is a courageous – and right – thing to do.

The reason it is right as well as courageous is that the government have slid a toxic Act under the back door of our legal code – an Act which when misused, as it has been, and will continue to be, can be used to justify the most sinister of actions. It is an Act that provides a Licence to Kill. It has to go. The Wooltortons, by taking the case to the Courts, will throw light on the need to remove this dangerous law.

The doctors at the bedside, the ones who stood back, will no doubt adopt the Nazi defence of saying they were “just following orders”. This will not wash. Not only did they place themselves in the subservient position of asking for and then following orders when they had no need to do so, they also chose to follow bad orders. As Nuremberg and other Courts have shown, “just following orders” is no defence when evil is abroad.

Dr No is in no way a rabid pro-life nutter. He aims to strike a balanced view. At medical school, he was taught never to kill, but also never to strive officiously to keep alive, and that has always served him well in times of uncertainty. He knows his duty is to strive to cure sometimes, to relieve often, and to comfort always.

KW was a woman with a long history of mental health problems. She presented as an emergency. She may or may not have had capacity, but time was of the essence, and deciding capacity in such circumstances requires a fuller picture of the patient and her illness, and how it affected her ability to weigh the facts so as to decide, than the circumstances allowed. The right course was for the doctors to treat first, and ask the questions afterwards.

Dr No has written elsewhere of the importance of autonomy, and the right to self-determination, and what should happen when these principles clash with other important principles, such as the right to life, and the doctor’s duty to preserve life.

He accepts, as he does with abortion, that there are times when an action that appears to contradict a doctor’s duty might in fact be in an individual’s best interests. But he is sure these matters should be deliberated in the calm of a consulting room, not the maelstrom of a casualty department.

It is in such difficult circumstances as these that the doctor turns not to the law, but to the Hippocratic tradition that has guided doctors throughout the centuries. It is there, and not in the law, that he will find the oxygen of morality that will sustain him throughout even the most testing of moral choices.

17 comments:

You rightly draw parallel to the autonomy vs right to life debate in abortion. But surely there are situations where a doctor must decide about the life of a foetus in an emergency situation (not a quiet consulting room)? What about when the best way to save the mother's life would kill her unborn child? Worse still, what if she demands you do everything to save her baby even if that is likely to kill her and potentially them both?
I'm sure such situations have already been encountered. What would your "good doctor" do in such a case?

Dr No, while I was penning the comment below to your previous post, you have put up a new one! So I’ll post it here although I realise you have moved further on in your debate.

Quotation:

“There is little doubt in my mind that the Norwich doctors, at the very least, abetted in the suicide of KW. They have fallen foul of the Suicide Act.

But the MCA complicated matters for them. It seems they and their medical director, various suits, and their lawyers failed to read S62 of the MCA or for that matterS6(7).”

Assuming, as members of the medical profession, we fully understand the meaning of the words “complicity” “aids” “abets” “procures,” there are some questions that the lawyers of the land need to answer:

What do lawyers understand these words to mean?

If the legal profession speaks the same English language as the medical profession why was “ Section 62 Scope of the Mental Capacity Act” referring to “Section 2 of the Suicide Act 1961 (c. 60) (assisting suicide) and Section 6(7)” not taken into account when advice was given to the consultant concerned when he sought the urgent help of lawyers regarding his patient’s Advance Directive?

Why was “Section 62 Scope of the Mental Capacity Act” referring to “Section 2 of the Suicide Act 1961 (c. 60) (assisting suicide) and Section 6(7)” not taken into account subsequently by other members of the legal profession who have opined on this matter?

These questions need to be definitively answered by the legal profession, because if they are not, precedents have been set in Norwich as a consequence of an oversight of a clause in a legal document that involves the life and death of patients when they are at their most vulnerable.

Furthermore, how are the experts in medical ethics and medical jurisprudence going to teach the doctors of tomorrow if this interpretation of the law is in fact the result of a legal oversight?

I'm sorry but I just can't see the difference between this case and that of a Jehovah's Witness refusing a blood transfusion for a PPH. Both are exerting their beliefs and refusing life saving treatment, just because one is a religious belief should make no difference.

LZeph - A good question. The obstetric patient brings another patient to the party. The scenarios you describe require the pregnancy to be far enough advanced for the foetus to survive if born (before that the mother obviously takes precedence: if the mother dies, then so too does the foetus).

I think the "good doctor", facing an antenatal emergency - say heavy maternal bleeding in late pregnancy - would have to save the mother, even if the only available treatment would kill the as yet unborn foetus - in the either/or situation you describe, the existing life is trumping the as yet unborn foetus. But in most cases the foetus will either be already dead, or if viable, can be saved by emergency Caesarean section (and delivering the baby may actually be just what is needed to save the mother's life).

The second scenario is more difficult, partly because my mind has gone blank trying to imagine a situation where this could arise (a medical condition where treatment to save the baby kills the mother). If the mother is dying from another condition - say she has had a brain haemorrhage, then a still alive foetus can be delivered by Caesarean Section. The only general scenario I can see is one in which a foetus needs delivery by Caesarean section if it is to survive, and it is known in advance that the operation will kill the mother. I can't think of a specific clinical case where this would apply but maybe there is one (or more) - perhaps a reader can supply the detail. In the abstract case I think the "good doctor" would have to refuse the mother: to embark on a treatment will mean certain death to one patient (the mother) for the potential benefit of another (as yet unborn foetus) is to knowingly and certainly kill a live individual. At the very least it would be assisting in a bizarre suicide.

Anon @ 5.20pm - by "this case" I take it you mean LZeph's pregnant mother. The key difference is that in PPH (heavy maternal bleeding after the baby is born), the baby has left the party, so to speak. There is no "either the baby dies or the mother dies" choice to be made.

WD - you raise a very important question about the competence of the Trust's legal advisers. It appears they haven't read the Act in full, or if they did, didn't put two and two together. I hope the Wooltorton's brave choice to sue the hospital will throw some light on this.

I'm not a lawyer, but I think unless otherwise defined, ordinary words will have the meaning in law that they would have to the (wo)man on the Clapham omnibus. So (these being key):

aid: assist, support, help

abet: facilitate, countenance, know about but not stop

from which I can only conclude that the Norwich doctors did aid and abet KW's suicide. But I am not a lawyer.

If you visit Dr Grumble's blog, you'll find there was some discussion in the comments section regarding refusal of blood transfusion on religious grounds.

http://drgrumble.blogspot.com/2009/10/flawed-act.html

Been reading the MCA.I'd forgotten how weasel-worded it was; it's been about four years since I read it last and it hasn't improved (except that they've changed 'consultee' back to 'advocate'. Still haven't provided the funding for it, though.)

Basically it all comes down to 'ands' and 'ors

Sorry guys, posted accidentally there. I think I'll do a full blown blog post on the MCA and the discussions round it at the time. I'll finish this post tomorrow; I can't find the section where 'and' changed to 'or' would have made the difference and it's late. Nite nite..

great blogging, have linked you up to the ferret,
cheers
garth

Anon 5.20pm again

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

is it miss A

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

or Mrs A

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

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

Where do we go now?

Or what about Patient C who has come into A and E with same document as patient A but she has been snatched into membership of an extreme “cult” and her brain has been “doctored?”

Or patient D who is depressed for nine months but who is as happy as Larry for three months year on year?

Or patient E who is depressed for one month a year only but perfectly happy for the other eleven?

The default position in the law is that all are deemed to have “capacity” till proven otherwise.

Trouble is it takes a bit of crystal ball gazing to define “capacity”, neither is it evidence based, so it is back to the doctor’s moral compass followed with justification in court if necessary.

It seems to me the law is, by its nature, an attempt to reduce complex situations to protocol. Patients are unique and devilishly complex and so many medical judgments including those surrounding suicide cannot be placed within the context of a protocol.

William Armstrong, The Norfolk coroner involved, stated in his conclusion regarding the KW case that “ it was not a moral judgment – it was a judgment based on the law.”

It may well be that we are now seeing morality and the law parting company. And that is the ultimate testing ground of medicine as a profession.

"It may well be that we are now seeing morality and the law parting company. And that is the ultimate testing ground of medicine as a profession."

You have hit the nail on the head: this is the pre-condition necessary for creep of the most sinister kind to occur. Think Nazi Germany.

But there is also some hope - the Nuremberg trials. "Just following orders" - ie just following the law - is not a defence when, as I said before, evil is abroad.

One of the lessons from Nazi Germany was that old cliche "The Banality of Evil". The devil does not wear horns and a red latex jumpsuit; he sits next to you and I, and looks like you and I do.

Your last paragraph is so true and is the reason why creep comes so quietly and so easily.

I have been trying to clarify, in my own mind, whether the Norwich doctors did or did not abet KW's suicide.

The OED gives two current definitions for abet, v, one of which is:

"esp. in a bad sense: To encourage, instigate, countenance a crime or offence, or anything disapproved of"

Countenance seems relevant: its definition includes:

"to give countenance to; to look upon with sanction or favour; to favour, patronize, sanction, encourage, ‘back up’, bear out a thing (action, practice, opinion, etc.)"

An example I found of abetting which is particularly relevant because it describes an act of omission (failing to turn the alarm on):

"The manager of a jewelry store fails to turn on the store's silent alarm on the night she knows her cousin plans to rob the store. Her conduct is that of abetting the Robbery. If, however, she merely forgot to turn on the alarm, she would not have abetted the crime."

I do not think the Norwich doctors could argue that they did not countenance, or sanction, KW's suicide. The fact that their act was an act of omission (they omitted to treat) does not alter the position. There were also aware that the suicide was happening (you can't abet something you don't know about - but, as we know, they knew only too well what was going on).

So: it seems to me that the Norwich doctors did abet KW's suicide, certainly in a moral sense, but also quite possibly a legal sense - the MCA 2005 notwithstanding.

“countenance a crime or offence”

Robbery is a crime.

On the other hand you could argue that since suicide per se is not a unlawful, then it is not unlawful to countenance it. So, if “countenance” means “looking upon” it would have quite different legal implications from “countenance” meaning “encourage.”

It’s all a play on words.

A mess, really.

The wording of legal documents should not be murky like this.

But abetting a suicide is a crime...so if the Nor-docs abetted a suicide, even though suicide is not a crime, abetting a suicide is a crime (Suicide Act 1961).

They certainly countenanced (gave face to) KW's decision to kill herself.

I agree much of this is word play, but it is word play about very important matters.

The problem is that such notes can be written just by anyone who wants to kill a person in that sophisticated way. So if doctors become that submissive it will relay the charge upon them, legally.

The suicide of Kerrie Wooltorton was quite a shock to the world. We should not give much publicity to these sorts of incidents.
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Incidents like these tempts youngster of this generation to use such drugs and do stupid things.


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