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HEAL Seminar: 14 January 2015, with Isra Black speaking on ‘Best interests (physician) assisted death’

In 2015, Best interests, Death and dying, Meetings on January 12, 2015 at 3:29 pm

Happy new year to you all.

We kick off 2015 with a HEAL seminar this week, with Isra Black from King’s College London speaking on ‘Best interests (physician) assisted death’. Isra can also be found on Twitter @israblack.

Abstract I propose a model for assisted death based on two criteria: (i) that P has made an autonomous decision; (ii) that assisted death is in P’s best interests. I argue that there is legislative space for this model despite autonomy being the principal focus of the majority of the Supreme Court in Nicklinson. I also claim that this model for physician assisted death could be brought within the medical exception, therefore bypassing the need for legislation. Finally, I attempt to show that best interests physician assisted death would be preferable to an ‘autonomy only’ model, or a model that took a medical condition or status (such as terminal illness) as a substantive criterion.

The seminar will begin at 4pm on Wednesday 14 January in room 2055, building 4 (Law staff room). All welcome.

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This week’s HEAL event: Andrew McGee on ‘Is Withdrawing Life-Prolonging Treatment Killing?’

In 2013, Death and dying, Meetings on December 2, 2013 at 8:10 am

 

Our next HEAL event will be on Wednesday 4 December from 3pm in building 4/room 3007, with Andrew McGee, from the Faculty of Law at Queensland University of Technology.

The title of Andrew’s paper: ‘Is Withdrawing Life-Prolonging Treatment Killing?’

Abstract:

This paper discusses recent arguments of Franklin Miller and Robert Truog about withdrawal of life-sustaining treatment and causation. The authors argue that traditional medical ethics, and the law, are mistaken to take the view that withdrawal does not kill the patient but merely allows the patient to die, describing such a view as ‘patently false’. In so arguing, Miller and Truog join a long line of academic criticism of the law that extends back to the seminal decision of Airedale NHS Trust v Bland [1993] AC 789 (HL) and beyond. In this paper, I take issue with the authors’ claims. I argue that there are reasonable grounds upon which traditional medical ethics and the law can regard withdrawal of life-sustaining treatment as allowing the patient to die rather than as killing the patient.

We look forward to seeing you there – if you could let Adrian know if you wish to attend, by emailing A.M.Viens@soton.ac.uk (so we can keep an eye on numbers) that would be appreciated.

Burke, Biggs, and Disagreements on Who Knows Best

In 2013, Death and dying on November 4, 2013 at 7:45 am

Burke, Biggs, and Disagreements on Who Knows Best

It is my great pleasure this academic year to be teaching on our third year option in health care law, albeit that the position has only become available by virtue of our losing Jonathan Montgomery to UCL. It is a privilege to teach matters that are central to my research, and the experience is all the more enjoyable as I’ve been lucky enough to do ‘team-teaching’ with my dear colleague, and former HEAL Co-Director, Hazel Biggs.

Part of the point of, and reason for, sharing a platform with Hazel is that we can each bring our own distinct—and perhaps distinctive!—approaches to, and views on, different issues in health care law and ethics. This isn’t simply a point of expanding students’ perspectives by direct exposure to differing views, but also about allowing them to see the nature of debate and disagreement between academics in the field; on some matters, agreeing with Hazel means disagreeing with me, but more fundamentally there’s every chance that disagreeing with both of us is the best way forward!

In a recent lecture, I was reminded of a point on which Hazel and I are particularly at odds, and imagine that our disagreement reflects in microcosm quite pervasive and deeply-held disagreements amongst academic health care lawyers  more generally. Potted histories of bioethics and health care law tend to reflect an eventual (or partial) triumph of concerns for patient autonomy over a dominant, paternalistic (or worse) medical hegemony. Certainly we now find strong defences of autonomy expressed in laws governing consent and mental capacity.

But one divide that remains unbridged, even at the level of principle, is that between negative rights—a patient’s ‘absolute’ right to refuse health care interventions—and positive claims—a patient’s ‘right’, not supported at law, to demand a given intervention regardless of the views of the health care team.  The most noted authority on this point, the Court of Appeal decision in Burke, is clear that ‘autonomy rights’ do not entail a right to demand treatment.

Yet the Court leaves its presentation of principle somewhat cryptic. In negative terms, we are told clearly at paragraph 31 that the duty to treat is not founded on the patient’s demand. But rather less categorically, we are told in positive terms simply that “The source of the duty lies elsewhere.” Part of the explanation for remaining quiet on this question is a strong desire on the Court’s part not to stray into general doctrine, but rather to remain focused on the question under issue (on which it does go on to express reasons). But on what should the general duty to treat be founded? For Hazel, patient autonomy is a sufficiently strong concern that health care practitioners should have no determinative say in treatment decisions; they can advise, yes, but not dictate.

For my part, I would argue that positive claims to health care do rightly include determinative roles both for patients and health care experts. This is in part due to the exceptional nature of health care; it is something special, and something in which we demand expertise, professional judgment, and evidence-based reasoning. It is right, in such circumstances, to insist on a level of deference to clinical judgment and opinion in regard to what can be demanded from the system. My reasoning is in part too based on macro-level concerns; in a system of constrained resources, brakes must be put on what treatments can be given. Amongst good reasons for not providing a health care intervention must be that it will have no or limited efficacy; again, this is a question well judged by someone with expertise. (To be clear, other factors rightly count too, and of course in some instances a small chance of a big gain will be worth taking.)

The ethical debates will rumble on, inside and outside the classroom – but I doubt that the courts will be persuaded to provide an exclusive, general competence to patients in positive decisions.

John Coggon

Assisted Dying: Philosophical, Legal and Practice Perspectives

In 2013, Death and dying on February 25, 2013 at 9:00 am

On Wednesday 20th February 2013, sponsored by the International Centre for Nursing Ethics, School of Health and Social Care and the School of Law at the University of Surrey, four experts from different disciplines debated issues related to assisted dying. Focusing on the related themes of autonomy and dignity at the end of life each panel member spoke for ten minutes and offered their own perspective on the topic. The presentations were then followed by a lively debate between the panellists after which the floor was opened up to questions from audience members.

Ray Tallis, former Professor of Geriatric medicine and recently described as ‘one of the top living polymaths’ opened the discussion with an entreaty to autonomy. He argued that the wishes of those who are terminally ill and seek an assisted death ought to be respected and that the law should be reformed to permit that. Hazel Biggs, Professor of Health Care Law at the University of Southampton, then outlined some of the legal aspects of the debate. She explained that the law does not explicitly support autonomy or dignity, other than through the legal right to consent to or refuse medical treatment and used various examples of assisted dying to reveal deep inconsistencies in the legal approach to end of life decision-making. Barry Quinn, MacMillan Consultant Lead Nurse at Ashford and St Peter’s Hospital NHS Trust then introduced some practical perspectives, arguing that today death is remote from the living and encouraging everyone in the audience to think about ways in which they might be with the dying so that people at the end of life feel less alone and better cared for. David Albert Jones, Director of the Anscombe Bioethics Centre and Research Fellow at Blackfriars Hall, Oxford continued the debate on autonomy drawing on philosophical theory to support his argument that in some respects personal autonomy ought properly to be limited.

The animated debate that the individual presentations provoked, demonstrate that assisted dying remains a controversial and emotive topic that is never far from the public consciousness. Such discussions are invaluable in generating informed public opinion.

More information can be found here.

JME Editor’s Choice: John Coggon on Elective Ventilation

In 2013, Death and dying, Public Ethics on February 21, 2013 at 7:27 am

The latest issue of the Journal of Medical Ethics (JME) is a special issue focused on ‘Elective Ventilation’. John Coggon’s paper – which he delivered as a HEAL seminar last year – has been selected as the Editor’s Choice, hence it is open access and can be read in full here.

Abstract This paper examines questions concerning elective ventilation, contextualised within English law and policy. It presents the general debate with reference both to the Exeter Protocol on elective ventilation, and the considerable developments in legal principle since the time that that protocol was declared to be unlawful. I distinguish different aspects of what might be labelled elective ventilation policies under the following four headings: ‘basic elective ventilation’; ‘epistemically complex elective ventilation’; ‘practically complex elective ventilation’; and ‘epistemically and practically complex elective ventilation’. I give a legal analysis of each. In concluding remarks on their potential practical viability, I emphasise the importance not just of ascertaining the legal and ethical acceptability of these and other forms of elective ventilation, but also of assessing their professional and political acceptability. This importance relates both to the successful implementation of the individual practices, and to guarding against possible harmful effects in the wider efforts to increase the rates of posthumous organ donation.

Choice at the end of life?

In 2012, Death and dying, Meetings on November 20, 2012 at 3:34 pm

On 23 October 2012 HEAL members met to discuss the All Party Parliamentary Group on Choice at the End of Life/Dignity in Dying consultation. This lively and informative discussion was followed up yesterday with an impromptu ‘meeting’ to finalise our response prior to submission. Sarah Wootton and Heidi Alexander made clear in their joint Foreword the purpose of the consultation, thus:

[Their]Our consultation seeks the input of experts, stakeholders and the public on how the proposals would work in practice and what would constitute adequate safeguards. The Bill is a draft and will be reviewed and revised in light of the responses we receive to this consultation. The APPG on Choice at the End of Life and Dignity in Dying are committed to promoting greater patient choice at the end of life, particularly over where, when and how one dies. We want to work with others to ensure not only that patients at the end of life have choice and control, but also, crucially, to ensure that the safeguards work well in practice.

HEAL has responded following our discussions – as one might expect there was some agreement with the proposals, and other areas raised greater concerns. Our full response can be accessed here (scroll down to p27).

Today’s HEAL meeting : discussing choice at the end of life

In 2012, Death and dying on October 23, 2012 at 3:42 pm

The next HEAL event will be on Tuesday 23 October from 4.30pm in rm 2055/building 4 (Law), led by Hazel Biggs, on the Safeguarding Choice consultation http://www.appg-endoflifechoice.org.uk/pdf/appg-safeguarding-choice.pdf. The consultation – which closes on 20 Nov – is being run by the All Party Parliamentary Group on Choice at the End of Life in partnership with Dignity in Dying, and includes a draft Bill (‘applying’ only to England and Wales).

Court declines to make new law in Nicklinson test case

In 2012, Death and dying, Key Legal Concepts, Testing project on August 21, 2012 at 4:30 pm

Judgment was given in the latest phase of the Nicklinson litigation on 16 August 2012. The court rejected the suggestions either  (a) that there was a common law defence of necessity that protected those who carried out voluntary euthanasia and or (b) that further clarifications were required of the prosecution policy set out by the Director of Public Prosecutions in 2010. Two cases were heard together, and as they raised significant constitutional issues the Attorney General was joined as a party at the request of the court.

The court acknowledged that these were ‘tragic cases’. Tony Nicklinson had suffered a catastrophic stroke in June 2005 that left him paralysed below the neck, unable to speak or move anything but his head and eyes. He communicated by blinking to indicate a letter on a Perspex board or through an eye blink computer. He said

‘My life can be summed up as dull, miserable, demeaning, undignified and intolerable. …it is misery created by the accumulation of lots of things which are minor in themselves but, taken together, ruin what’s left of my life. Things like…constant dribbling; having to be hoisted everywhere; loss of independence, …particularly toileting and washing, in fact all bodily functions (by far the hardest thing to get used to); having to forgo favourite foods; … having to wait until 10.30 to go to the toilet…in extreme circumstances I have gone in the chair, and have sat there until the carers arrived at the normal time.”

He had wanted his life to end since 2007, although not necessarily immediately. The court understood that he would probably wish to end it in a year or two, but he wanted to establish through the litigation the right to die with dignity at a time of his choosing.  His only options to achieve this were self-starvation or voluntary euthanasia. Assisted euthanasia, such as provided by Dignitas in Switzerland, would not have helped because he did not have the physical ability to carry out the final act himself.

Tony’s case was heard with a separate application from a man referred to by the pseudonym of ‘Martin’. He would be capable of physically assisted suicide, but this would have involved someone else committing an offence under the Suicide Act 1961, section 2. Martin’s wife, a nurse and devoted to his care, was not willing to support Martin for that purpose, with which she did not agree. Martin’s main claim was against the DPP, requesting clarification of the prosecution policy. However, the Solicitors Regulation Authority (SRA) and the General Medical Council (GMC) were also included in the proceedings.

Nicklinson argued for a defence of necessity in the following circumstances:

(a) the Court has confirmed in advance that the defence of necessity will arise on the facts of the particular case; (b) the Court is satisfied that the person is suffering from a medical condition that causes unbearable suffering; that there are no alternative means available by which his suffering may be relieved; and that he has made a voluntary, clear, settled and informed decision to end his life; and (c) the assistance is to be given by a medical doctor who is satisfied that his or her duty to respect autonomy and to ease the patient’s suffering outweighs his or her duty to preserve life;

He contended that his rights under Article 8 of the European Convention on Human Rights required the law to recognise such a defence.

However, the court found that it would be wrong to do so, as it ‘would be to go far beyond anything which the Strasbourg court has said, would be inconsistent with the judgments of the House of Lords and the Strasbourg court in Pretty, and would be to usurp the proper role of Parliament.’ In particular, three reasons were offered why the court should not take this step. These provide an important articulation of the constitutional restraints in relation to judicial law-making, which are significant for our wider project on test cases and hidden lawmakers.

The first was an issue of competence that derived from the difficulties involved in resolving broad conflicts of principles on which our society is divided through the resolution of specific cases. While it might be reasonable for a court to develop the implications of widely held principles, this did not make it competent to play the same role where those principles were controversial. The court’s analysis of the relevant human rights jurisprudence had led it to conclude that the issue of euthanasia was a matter within the margin of appreciation afforded to national legal systems to adopt their own conclusions. Consequently, the development that Nicklinson proposed was not justified as merely an interpretation of the common law to make it consistent with the requirements of the European Convention.

The second problem that the court saw with such judicial activism concerned its constitutionality as it would bring them into conflict with the sovereignty of parliament. The court thought it was being asked  ‘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’ (it noted such attempts in 2003, 2004, 2005, 2006, 2009 and 2012). This is a similar argument to that I made in the article, ‘Guarding the gates of St Peter: life, death and law making’ (2011) Legal Studies 31, (4), 644-666, about the decision of the House of Lords in R (Purdy) v DPP  [2009] UKHL 45. In Nicklinson, the court identified a number of cases where expressions of judicial restraint in deference to Parliamentary sovereignty can be found and felt that it should remain within that tradition.

Finally, the court expressed concern about the ability of case law to exercise the necessary control of the consequences that would be needed to develop the law in such a complex area. It suggested that safeguards would need to be designed that could only be properly done by Parliament. This could be said to be implicitly recognised by the terms of the declaration sought by Nicklinson, with its references to prior review by the courts and professional involvement in carrying out the ‘mercy killing’. If necessity really prevailed, then surely the circumstances would justify the killing whether or not the court had looked at it in advance.

Thus, the decision can be said to take a more orthodox approach to role of the courts than that adopted in Purdy. Rejecting the suggestion that further clarification was required of the DPP’s policy, the court suggested that to do so would be to require the DPP to impinge on Parliamentary sovereignty. It also noted that this would be too rigid an interpretation of the need for certainty implied by ‘in accordance with the law’ in Article 8(2) of the European Convention on Human Rights (again see my article for a similar argument), stating that

‘it would go beyond the Convention jurisprudence about the meaning of “law” in the context of the rule of law. Even when considering the meaning of “law” in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to “law” in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action.’ (para 141).

Finally, the court suggested that the argument being put forward was for so much detail in the policy as to be impractical. Again, as on the constitutional points, these positions seem to be a more orthodox account of the problems than set out in Purdy. An appeal is anticipated and it will be interesting to see how the constitutional issues play out in the higher courts.

Jonathan Montgomery

‘Don’t Blame Me’ – The role and scope of the principle of ‘Double Effect’

In 2012, Death and dying, Key Legal Concepts on July 30, 2012 at 9:00 am

On Friday 13th July, Jonathan Montgomery addressed the 6th international conference on paediatric palliative care in Cardiff at its meeting on Science, meaning and morality: the palliative package?  He was asked to explain the doctrine of ”double effect’. He argued that its general function is to explain why sometimes we may not attribute blame for actions that would normally be wrong but seem acceptable in the specific context. However, it is used both as a technical doctrine and more loosely to capture the idea that sometimes we have to make a ‘tragic choice’ – one that we would prefer not to have to make.

The work that we expect from the principle of ‘double effect’ depends on the general approach that we adopt to ethical judgments and responsibility. For some approaches to ethics, such as Utilitarianism, it may not be necessary to appeal to the idea of ‘double effect’ at all. If the rightness of an action depends on balancing the beneficial and negative effects of one’s actions, then this calculation will explain why it is thought acceptable to do something that may normally be wrong because, overall, the good outweighs the bad in the consequential calculus. However, for those whose approach to ethics is driven by the view that some actions are impermissible because they are intrinsically wrong, then problems are presented by cases in which decisions seem to involve choosing between two intrinsically wrong actions. It is this view that has led to the more precisely defined Doctrine of Double Effect’ , associated with Roman Catholic ethical traditions derived from the work of St Thomas Aquinas. Others who adopt the famous ‘Four Principles’ of autonomy, beneficence, non-maleficence and justice may consider the idea of double effect in the context of determining whether actions have breached the principle of non-maleficence and it is in this context that it is discussed in Beauchamp and Childress’s leading work.

For justifications under the formal ‘doctrine’ of double effect, four conditions are usually required to be met. (1) The act being performed must be ascertained to be ‘good’, or at least neutral, without reliance on the anticipated consequences. (2) You intend only the good effect (using a concept nearer that of ‘motive’ than reasonably foreseeable consequences as the law  usually defines ‘intention’).  (3) The bad effect must not be the means to the good (this may be little more than spelling out a point that some would argue is implicit in (2) if you accept that we must be taken to have intended the means by which we set out to achieve things). (4) The good effect must outweigh the bad one (sometimes explained in terms of ‘proportionality’ or ‘sufficient reason’).
The law in England and Wales does not use this doctrine in any formal sense, but it has used a number of techniques to address the problem. One of these, derived from the decision in R v Adams (1957) is often described as an application of ‘double effect’, although this is not necessarily a helpful short-hand for a ruling that was justified on an overlapping but independent set of grounds (which in turn are slightly muddled and frustratingly implicit). That case suggests that health professionals can give care that may also incidentally shorten life provided that (a) the patient is close to death, (b) it constitutes ‘right and proper care’ and (c) the purpose is to relieve pain rather than to shorten life. These conditions are not easy to defend in the face of established legal principles. The third seems to conflict with the expectation in the criminal law that people must be taken to intend the reasonably foreseeable consequences of their actions so that ‘motive’ is not normally relevant to the definition of a crime, but may be appropriate to questions of sentencing rather than guilt. The second implies that health professionals can place themselves above the law by defining their own criminal liabilities. The first seems to suggest that the fact that someone is already about to die means that they can be murdered with impunity.
This is not the only case in which the law has grappled with the issues to which ‘double effect’ thinking  has been applied. In R v Arthur (1981) a paediatrician had used a drug in the care of a disabled neonate that was said to suppress its appetite. He was prosecuted and the judge invited the jury to consider whether his actions were best described as (a)  ‘a holding operation, in the nature of setting conditions where the child could . . . if it contracted pneumonia . . . or if it revealed any other organic defect die peacefully’ or (b) ‘a positive act…which was likely to kill the child . . . accompanied by an intent on his part that it should as a result of the treatment that he prescribed die’. The former was said to be lawful, but the latter was a crime.  The jury acquitted Dr Arthur.
This approach draws less on the idea of ‘double effect’ than on the distinction between acts and omissions. It implies that allowing someone to die, even if those conditions have been ‘set’ intentionally is categorically different from killing them. However, pushing someone in front of a train may be only ‘setting conditions’ in which they might be run down, but it would still be murder. In any event omitting to save someone’s life when you have a duty to save them can be murder. The question is more about the scope of the duty to act than the supposed qualitative difference between acts and omission. The application of this to health care was discussed in Airedale NHS Trust v Bland (1983).
A further example from the case law concerned the conjoined twins known in the litigation as ‘Jodie’ and ‘Mary’ (reported as Re A). As is often the case in difficult legal decisions, the different judges explored different rationales without clearly indicating which was to be preferred. One strand – the family law analysis – focused on the legal duty to act in the best interests of children whose welfare falls to be overseen by the courts. It was reasonably clear that saving Jodie by surgical separation of the twins was in her best interests as it would be likely to mean her survival. However, to describe the operation as being in Mary’s best interests when she would be not be able to survive was counter-intuitive (although one judge thought it was in her interests to be permitted to die with dignity). On the family law analysis, it is probably best to characterise the decision as the least detrimental alternative, saving at least one life rather than losing both.
There was also discussion of the possibility that the operation could be justified as ‘self-defence’ by Jodie because Mary’s reliance on her was threatening her life. However, it is unclear that this could really apply to the actions of the surgeon. Perhaps the stronger legal analysis lies in the application of the defence of ‘necessity’, where there was (a) a need to act to avoid irreparable harm, (b) the defendant did no more than was necessary to avoid it, and (c) the evil inflicted was not disproportionate to the evil avoided. This doctrine of necessity is wider that the doctrine of double effect, but it has a more robust pedigree in English and Welsh law.

HEAL’s next meeting: 22 February 2012

In 2012, Death and dying, Meetings on February 17, 2012 at 8:32 am

HEAL’s next meeting will be on Wednesday February 22, 2012, at 1pm in 4/2007, where Hazel Biggs will lead a seminar on ‘The Death Commission’, drawing on the recent Report by the Commission on Assisted Dying. This is a follow up event to last year’s HEAL seminar on the parameters of the Commission’s consultation paper, led by Hazel Biggs, Jonathan Montgomery and Caroline Jones.