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Playing God


Posted on 06 October 2009

“Doctors are busy playing God when so few of us have the qualifications. And besides, the job is taken.”

Bernie S. Siegel

god2.jpgDr Grumble’s recent post A flawed Act provoked a vigorous – and very necessary – debate over what happens when an individual’s right to kill themselves clashes with a doctor’s duty to preserve life.

The trigger for this conflict, and make no mistake, conflict it is, was Kerrie Wooltorton’s (the Norwich woman who killed herself by drinking antifreeze) use of a “living will” to prevent doctors from stopping her dying when she presented at hospital. Instead, the “living will” – an oxymoron if there ever was one - required doctors to provide only pain relief and comfort. The doctors complied, and Wooltorton died.

On one level, this is a doctors vs lawyers argument about what happens when one law, the Mental Capacity Act 2005, clashes with another law, the Suicide Act 1961. The effect of the MCA is to force doctors to fall foul of the Suicide Act (should they stand by), or face prosecution for assault (should they treat). They are damned if they do, and damned if they don’t.

Quite how the great legal minds that drafted the MCA failed to spot this obvious and inevitable clash beggars belief, unless, of course, you accept that, as is so often the case, the law is an ass – an observation which may explain how we got here, but does nothing to help solve the problem.

Be that as it may, doctors, unlike lawyers, work at the coal-face. They have to make real-time decisions about real people in the real world. Dr No, along with many other doctors, is of the view that in Wooltorton’s case there was sufficient doubt over capacity – Wooltorton had both depression and emotionally unstable personality disorder – to mean that treatment was in her case justified. But there remains the, so far as we know as yet untested, case in which a sane, capacitous individual initiates suicide and then seeks medical help with a do not resuscitate me string attached.

This is at the heart of the dilemma, a dilemma which extends far beyond asinine law. However saddened we might be at a suicide, it is rightly no longer illegal to end one’s own life. The individual who chooses to kill him or herself alone does not give rise to this dilemma. The dilemma arises when the patient – for that is what he or she becomes - seeks medical help. It places the doctor in a horrible position. The doctor has a duty to preserve life, but also to respect the patient’s wishes. And in this particular patient, these two duties are diametrically opposed.

The law, as we have seen, is of no help; in fact, it is part of the problem. It cannot be relied upon in any way to guide the doctor and the patient through the minefield that we are now in. We must look instead at the wider picture, at the moral and ethical questions that must be answered if we are to know what the right thing to do is.

Dr No does not have the answer. He does however think he may have an inkling of where the moral battleground is. Any suggestions he may make are tentative in the extreme. Dr No has no wish to have bricks come flying through his window or, far worse, have the Witch Doctor cast a spell on him. But he does think this is a very important question of our time, and one which needs airing – and answering.

Dr No thinks the clash lies between the right to life, and the right to autonomy (self-determination). Those who favour life will argue that the right to life is the supreme right, for without life there is nothing, and the religious will point to the sanctity of life; those that favour autonomy will say that we are free to determine our own fate, however much others (including God) may deplore what we do; that there can never be a place where one individual can force their will on another, and that to do so over life and death decisions is, quite literally, to play God. They will no doubt add that doctors have form when it comes to playing God.

Those who wish to die by their own hand will point to the anguish of a failed or thwarted attempt. They will say, very reasonably, that to die alone and in pain, even if one has caused one’s own death, is inhumane, and that doctors have a duty to relieve their suffering, even when they are dying by their own hand. They will point to the hospices and say you provide palliative care for them: why not for us?

What the pro-autonomy lobby (PAL) cannot deny is that doctors have a duty to preserve life. Any erosion of that duty will, by way of creep, start us on the path that leads to Dr Death, and the atrocities of Nazi Germany. Today the doctor stands by while the patient kills herself (that is what happened in Norwich) – an act of omission that allows a patient to die. Tomorrow the doctor will “assist” with suicide, even to the extent of administering the fatal injection. A red line has been crossed. The doctor has moved from a position of standing by to one of active intervention with intent to kill.

So far, the decision to die has rested with the individual who has chosen to die. But it is only a matter of time before the less good in this world see fit to make the decision on behalf of others. Owners put their pets out of their misery, because it is the kind thing to do; before long, doctors will put frail, pain-ridden, long suffering patients out of their misery, because it is the kind thing to do. Before we know it, we extend the principle ending miserable lives towards preventing miserable lives: we kill those whose lives we deem will be deficient. It’s what the Nazis did, in Europe, and less than a century ago.

What the pro-life lobby (PLL) will say is that the only way to avoid going down this path is never to turn on to it in the first place. The red line at the start of the black run must never be crossed; if it is, there will be no turning back.

The PAL will argue from a Kantian position that autonomy is the fundamental right, from which all others arise, and therefore has the higher ground. The PLL will argue that it is autonomy only in so far that it does not ill affect others – and that suicide does ill effect others – the survivors.

Dr No suspects that, approached in these ways, the dilemma is unresovable. There is simply no reliable way of determining whether one right has the ascendancy over another. All rights are equal. The problem is, we are no nearer a solution.

If we are unable to resolve the dilemma by establishing a hierarchy of rights, perhaps there are other ways of approaching the question. Dr No thinks there might be: by way of looking not at the abstract right, but the practical outcome, and by way of precedent.

If we accept both rights have equal weight, what happens in each of the two cases where we allow one or the other to hold sway? When the PAL holds sway, the patient dies, and the doctor has their moral duty offended (and for some this offence will be hard to bear); when the PLL holds sway, the doctor imposes their will on that of their patient and the patient is forced, against their will, back to life.

Not all will answer the same way, but to Dr No, it does seem that a case can be made that the offending of a moral duty is a lesser evil than the forced imposition of one will over another, and that maybe for this reason the way of the PAL wins the day. Autonomy does trump life - as long as all other things are equal.

For those who haven’t spotted it – I did drop a clue six paragraphs ago – this dilemma bears a remarkable similarity to a precedent - the abortion debate. Both, at their heart are about the right to life against the right to self-determination.

We allow abortion – but we manage it in a planned way. It is thought through before a commitment to abort is made. Doctors who are uncomfortable with abortion – for whatever reason - are not forced to get involved, as long as they refer the patient to a doctor who is prepared to get involved. We could adopt the same approach to the sane, capacitous individual who wishes to kill him or herself.

So, in summary:

The red line – committing an act with intent to kill – is never crossed by doctors. If it is necessary (Dr No is inclined to think it is not) to kill others outside war, then that is done not by doctors, but by executioners.

The suicide who presents as an emergency with a do not resuscitate me string attached is always treatable, because the doctor cannot reliably assess capacity, let alone other aspects of the patient, in the urgency of an emergency situation where time is of the essence. Death, remember, is a one way street.

The sane, capacitous individual who wishes to kill themselves and wishes to have pre-planned, pre-agreed medical pain relief and comfort in their last hours does have this right. But not all doctors are not obliged to be involved: those who are uncomfortable – for whatever reason – are not forced to get involved, as long as they refer the individual to a doctor who is prepared to get involved.

The MCA as it stands is bad law. It needs modification to remove the conflict between it and the Suicide Act on the one hand and the doctor’s moral duty to preserve life on the other hand. Until such time as this conflict is removed, doctors are not compelled to comply with bad law.

Meanwhile, the sensible suicide steers clear of the medical profession altogether, and just gets on with it. They, as it were, keep it between themselves and their God – and by so doing don’t give the doctors a chance to play their God.

8 comments:

Another thoughtful post, Dr No. To understand how the MCA ended up as such a hotch-potch of contradictions, you need to look at its history.

Originally the Mental Capacity bill (or the Mental Incapacity bill as it was known when going through Parliament) was about providing a professional advocacy service for people that were mentally incapacitated. It was a resurrection of a bill that Tom Clarke (my MP) had tried to put through some years previously. The principle of advocacy was agreed to but the caveat 'when costs allow' was added, and so the bill sank without trace during the Thather years.The Mental Capacity bill was meant to be an honouring of that promise, but what happened instead was that it got hijacked by pro euthanasia supporters. Food and fluids provided intraveneously were defined as medical treatment, which meant it could be removed as such. If a person at some point had expressed a wish to die, that instruction could be followed. It didn't need to be written down or witnessed and the person reporting it could be a relative, friend or social worker. After protests from pro-life groups, a caveat was added to the bill that said it in no way contravened the Suicide Act and that it was still considered an offence to assist in a suicide. Hence the mess.
I was involved in the campaign against it; my mum has dementia and I had seen at first hand the kind of sly neglect that goes on with people in her condition and I felt that the law did not need to give encouragement to it. And so I have the same problem as the Witchdoctor; that of creep. When the law about food and fluids was introduced, the case that was quoted was that of Tony Bland who was in PVS for four years. What it has led to, is that elderly people who enter hospital with a stroke and need intraveneous feeding so that they don't choke, do not get a line put in and are left to slowly starve and dehydrate to death. It was common before the act; now it has official sanction. I know, because I and others in my position have encountered it several times.

What I would say about the law itself;there isn't a law in the country that can cover all eventualities. You have to legislate for the majority and then what you do is put in checks and balances. So you have a prosecution service to decide if there is a case to answer, then a judge and jury to decide how much of an infringement has occured and what the penalty should be. The law does have a human face; it isn't summary law and in difficult cases it can be weighed up and people can use their common sense. But hard cases do make bad laws and I am increasingly uneasy at the way that suicide is being portrayed as a lifestyle choice. Until someone can explain to me how you square the circle of an growing elderly population, with a decrease in elderly care without involuntary euthanasia, I am not going along with any arguments about autonomy and the right to die. Some people will have a choice about their death; but the poor, the sick and the mentally ill will not.
Sorry, my comment is almost as long as your post! Think I might do one on this..

Btw, the funding for the advocacy service was mooted at £55 million for England and Wales. At that point there were 200 000 appointees for the mentally incapacitated; it was woefully inadequate for the proposal. The term 'advocate' also got changed to 'consultee' in the bill, which conveniently blurred the lines of how professional(or otherwise) the advocate was going to be.

Julie, I think you have clarified my thoughts.

I too have a feeling of unease regarding the philosophy that the right to self-determination should always trump the right to life. Presumably this is regarded as the ultimate freedom. However, I think you have explained why I am so uneasy about it. Basically, its because I don't have a great deal of confidence that the human race will do the right thing.

WD

Julie - Thanks for your comment. Don't worry about the length - it needed to be that length to say the important things you have said. Background is very important in these things.

Like you and WD, I have seen at first hand the appalling "care" that happens daily on the wards. I have spoken out locally, and lost work as a result. What I am saying is that I am not just an armchair campaigner on this one.

Again, like both of you, I am greatly concerned about creep. I have said elsewhere it is a real thing, not speculation: it happened in Europe, less than 100 years ago. In my OP here I give a detailed account of how it could (will) happen "Any erosion of that duty will, by way of creep..." by way of fleshing out an abstract term we understand ("creep") into something others can see as a real possibility, because it has happened before, and if it happened once, it can happen again. (A friend reading one of my earlier posts read creep as a verb, not realising we are using it as a noun, hence the need to spell it out.)

Again, this is not new ground for me. I did an intercalated BSc in Psychology at medical school, and spent some time studying Milgram and his work on conformity and obedience to authority. I quote Burke under my main title on this site. So I am with the WD on there being no certainly that humankind will do the right thing. Indeed the evidence is that they don't - more genocide in the last 100 years than ever before. Give them the tools, and they will complete the job. It is also why I wrote the post pointing out that what is normally called democracy is usually a sham. States are run by minorities; the question is in who's interest do they govern?

At the same (we're all allowed a bit of paradox), I am at heart a libertarian. I do think it is wrong that one person should tell another what to do and think without due cause. Because of that, I end up favouring autonomy, and the thing about autonomy is that, once the caveat "without harming others" is added, autonomy means what it says on the tin (you make your own law). But it still gets complicated: suicide is not harm to others free (the survivors).

As Julie says, there are circles to be squared, and until they are, we should, as I hope we are, shine lights into hidden places, and all the while urge the greatest caution lest we really do end up somewhere very nasty.

The conflict between the MCA and Suicide Act has been mentioned. On Page 6 of The Mental Capacity Act 2005 there is something called a “declaratory provision” which specifically says:

“Scope of the Act

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

Looking at the wording of the Suicide Act 1961 (c.60)

"2 Criminal liability for complicity in another’s suicide

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

It seems to me “The Scope of the Act” is the attempt of the law to avoid a situation such as happened in Norwich. i.e. the Suicide Act over-rides the Mental Capacity Act.

The meaning of the words aids, abets, procures and complicity are crucial to this interpretation.

http://www.opsi.gov.uk/acts/acts2005/ukpga_20050009_en_6

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1961/cukpga_19610060_en_1

WD - I have already covered this point (in a comment to "A flawed Act"). What I said was:

The Suicide Act says:

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

"Aid" means to assist; "abet" means to countenance, or sanction, an act. Electing to withold an available effective treatment is an act (an act of omission) which, in the case of a individual in the process of suicide, will aid and abet that suicide.

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 S 62 of the MCA, or, for that matter S6(7):

(7) But nothing in subsection (6) stops a person—
(a) providing life-sustaining treatment, or
(b) doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court.

A bull with sharp horns tossed these unfortunate doctors in the air, and it seems that, wherever they landed, there would be a sharp horn waiting for them.

This is the crux of the matter. There is no doubt that the law is a mess. And as I have said many times, there is no obligation for a doctor to follow bad law. Their own medical conscience kicks in. That is the duty of a doctor. Unfortunately, theirs did not kick in.

Or something very very sinister went on. I have posted before on the Survival of the Conformist: how in the bad times the professions subsume their will to the State, and so become puppets of the State. The independent get thrown out, and the conformists survive.

Maybe that is what happened in Norwich.

The thought crossed my mind that Kerrie Wooltorton, as a nine times self harming visitor to A&E, would be regarded as a nuisance and an expensive nuisance at that. I wonder if she ever was referred to mental health and if she got appropriate treatment. Did they let her die because they respected her choice, or because they were not willing to offer an alternative?

Julie - KW had BPD and depression. I'm sure she went through the local CMHT hoops countless times. Many CMHTs are pretty useless, and when it comes to BPD, downright hopeless. I strongly suspect that the CMHT failed her.

That is not to say BPD is easy to treat, or that is even an illness in the conventional meaning of the word. One day I'll get round to writing a post on this. But right now we need to keep the focus on getting the MCA sorted out.

Maybe that is what happened in Norwich.


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