Posts Tagged ‘Death and Dying’

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.

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?’


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

What is a presumption worth?

In 2012, Capacity, Key Legal Concepts on July 9, 2012 at 9:00 am

Presumptions are a promising legal tool. They work in two ways. First to establish a default position – in the absence of specific evidence what should we presume the right position to be? Second to ensure that we only move way from that default position when we are satisfied that the evidence on which we are doing so is clear enough to justify displacing the presumption in question. These two separate but connected questions can be described in terms of the onus, or burden, of proof and of the standard of proof. Thus, the presumption of innocence in criminal law means first that the onus lies on the prosecution to prove that the accused has perpetrated a crime, and second to do so beyond all reasonable doubt (the criminal standard of proof, rather than against the civil standard – the balance of probabilities). The higher the standard of proof, the more weighty the presumption can be said to be.

Such presumptions can be used in health care law to point professionals  in the direction of what is thought to be the most likely desirable practice and, when appropriately weighted, may be used to ensure that they will only depart from that practice when they have a solid basis for doing so. In practice, however, courts may not apply presumptions in the way that is anticipated. A presumption with no weight at all (so that no real evidence is required to rebut it) is barely worth its place in the law.

These issues have been neatly illustrated in recent cases concerning decisions by adults that they wish to be allowed to die. The Mental Capacity Act 2005 section 1 established a presumption of competence to which the courts seem to have given little weight. Further, they seem to have created a strong presumption that life is to be preserved despite the absence of any weighting in the best interest checklist in s 4 of that Act.

In Re E (Medical treatment: Anorexia) (Rev 1) [2012] EWHC 1639 (COP) (15 June 2012) Peter Jackson J found that a 32-year-old woman who suffered from severe anorexia nervosa, who was refusing to eat and would accept only a small quantity of water, lacked capacity to make a decision about life-sustaining treatment. Although the judge recognised that there was a presumption that E had competence, he found that it was displaced by her ‘obsessive fear of weight gain’ (which made her ‘incapable of weighing the advantages and disadvantages of eating in any meaningful way’). He said that this ‘compulsion’ had become ‘the card that trumps all others’ and ‘overpowers all other thoughts’.  His evidence to support this was that when a conversation turned to the question of weight gain she began to cry, having previously been ‘smiling and laughing’ [Para 49]. In addition as a secondary reason for the conclusion of  lack of competence, she was in a ‘drug haze’ due to strong sedative medication [para 50]. The court reached this conclusion despite the views of the Official Solicitor’s representative, and of the two doctors who knew the patient best, that her views should be respected [para 51].

E had also made two advance declarations that she did not want to be resuscitated or to be given any medical intervention to prolong her life. Here, the Court of Protection had the power to rule on whether she had capacity when she made it (MCA Code of Practice, para 9.67) but Jackson J did not consider that any weighted presumption of capacity was applicable. To the contrary ‘where evidence of capacity is doubtful or equivocal it is not appropriate to uphold the decision’ [para 55]. The girl’s parents, all the health professionals treating her, her independent mental health advocate and her solicitor had all believed that she had capacity at the time that she made the advance decisions. However, Jackson J held ‘on the balance of probabilities’ that she had in fact lacked capacity; only a ‘full, reasoned and contemporaneous assessment evidencing  mental capacity’ would have led him to a different view [para 65]. In the absence of such evidence he would not accept that she was competent.  In effect, he held that there is a presumption of incapacity in advance decision cases, despite the terms of section 1 of the Act. Further, that presumption carried considerable weight and only strong evidence would rebut it.

He then turned to consider whether treatment (i.e. force feeding) was in E’s best interests, as required under section 4 of the MCA in relation to patients who lack competence.

One might be forgiven for thinking that the arguments in favour of palliative care, allowing E to die were considerable. Jackson summarised them as respect for E’s wishes and her personal autonomy, sparing her the risks associated with and ‘harrowing aspects of’ treatment which had limited prospects of success and about which E’s parents and clinicians were ‘at best sceptical’, allowing her to die with dignity and close to home [para 115]. These had to be ‘balanced’ [para 114]  against the fact that,without forcible feeding,E would die and lose the 10-15% chance to recover and lead a relatively normal life (after 1-2 years of hospital treatment) [paras 113, 116]. Further, ‘the longer E lives, the greater the opportunity for her to benefit from treatment and to revise her views about her future’ [para 116]. ‘At its simplest, the balance to be struck places the value of E’s life in one scale and the value of her personal independence in the other, with these transcendent factors being weighed in the light of the reality of her actual situation’ [para 118].

Jackson J accepted that the MCA ‘might have given absolute priority to the preservation of life’ but had not actually done so [para 121]. In fact, the MCA gives no priority to any one factor, let alone an ‘absolute’ one, setting out the test as one of ‘best interests’. Further, the only reference to the value of life is to exclude anything ‘motivated by a desire to bring about [the patient’s]  death’ (s 4(5)). Jackson J seems to have created a presumption in favour of preserving life in his suggestion that only where care was futile should it be stopped; ‘the prospects of her making a reasonable recovery are highly uncertain, but it cannot be said that treatment efforts are doomed to fail or that treatment would inevitably be futile’ [para 122]. He also created a presumption that it seems almost impossible to rebut by characterising  ‘the balancing exercise [as] not mechanistic but intuitive and there are weighty factors on each side of the scales’ [Para 129]; an approach that makes the conclusion a matter of personal judgment not reasoned argument. Any criticism of the balance struck is therefore an attack on the opinion rather than rationality of the judge. No reasons are given for the striking of the balance, only a description of the factor that inform judicial intuition.

So a clear statutory presumption of competence was neutralised and a weighty judge-made presumption was inserted into a statutory framework that lacked one. This does not tell us that presumptions are not useful, but it does make us sceptical as to the uses to which they might be put.

Jonathan Montgomery