The Law Looks at Assisted Dying Thorax: First Published As 10.1136/Thx.2011.159574 on 18 February 2011
Total Page：16
File Type：pdf, Size：1020Kb
Review The law looks at assisted dying Thorax: first published as 10.1136/thx.2011.159574 on 18 February 2011. Downloaded from M A Branthwaite Correspondence to The ethical and legal aspects of suicide and assisted from his practice, is said to have protested ‘She M A Branthwaite, Flat 3, 10 suicide have been the subject of vigorous debate in wanted to die. That cannot be murder. It is Wilfred Street, London SW1E ’ 2 6PL, UK; the recent past but the controversy is not new. This impossible to accuse a doctor . Unfortunately for [email protected] paper, loosely based on an invited lecture to the the practitioner, his opinion was erroneous and he 2010 summer meeting of the British Thoracic was prosecuted, albeit unsuccessfully. However, the Accepted 14 January 2011 Society, seeks to explore the dilemma by tracing the legal importance of the case is that it endorsed the Published Online First attitude of English law to medical involvement in validity of the ethical doctrine of double effect at 18 February 2011 death and dying over the last 75 years. English law. Dr Bodkin Adams prescribed large and rapidly increasing doses of opiates to relieve THE CONTROVERSY IGNITES disturbed sleep in a number of elderly carehome The Society for the Legalisation of Voluntary residents, many of whom had made bequests to the Euthanasia was founded in 1935 by a group of doctor in their Will. The case attracted huge eminent medical and clerical practitioners and held publicity, and a detailed account of the trial was d its first meeting in BMA House. These origins seem published later by the trial judge Devlin J (as he d improbable in the light of the current attitude of then was) who thereby breached legal convention ’ both professions to assisted dying, but the new to a degree comparable to Lord Moran s account of ’ 23 Society was enthusiastic and introduced its first Winston Churchill s medical history. Devlin J is Private Member’s Bill in the House of Lords in critical of the prosecution team but also intimates 1936. It was defeated, one of those voting against personal unease at the outcome which was that the being Lord Dawson of Penn, then Physician to the practitioner had acted with good intent to relieve Royal Household. He defended his opposition on suffering and even had he thereby shortened life the grounds that legislation to permit intervention and known or believed this to be likely, such action intended to hasten death is unnecessary because as did not constitute a criminal offence. What was not soon as a medical practitioner is satisfied a patient’s explored then or since is whether or not a practi- death is inevitable, there is a duty to minimise tioner can act with double intent as distinct from distress and act accordingly. This opinion was double effect. In the general context of the expressed in his management of the death of King administration of opiates to patients with terminal George V in January of that year.1 The King illnes, is it possible that in some instances the suffered from chronic obstructive pulmonary practitioner does intend to hasten death as well as http://thorax.bmj.com/ ? disease and had developed an exacerbation shortly relieve symptoms The crucial importance of intention was re- before Christmas 1935. His condition deteriorated 4 until he was bed-bound, comatose and had devel- emphased in the 1992 case of R v Cox. Consultant oped pleurisy. By the end of the third week in rheumatologist Dr Cox had managed the severe, January, Lord Dawson was satisfied the King would destructive rheumatoid arthritis of Mrs Lillian not recover and, late one evening, administered Boyes for 17 years and had an excellent therapeutic a large dose of morphine followed by cocaine. relationship with both her and her family. Elderly, About an hour later the King fell into a deep sleep emaciated, bed-bound and suffering from pressure on October 2, 2021 by guest. Protected copyright. and thereafter died peacefully at ten to midnight sores, she was in severe and constant pain resistant without regaining consciousness. Two reasons are even to opiates and, supported by her family, she recorded in the diaries published years later: his begged and pleaded for assistance to die. Without belief that the family (sic) had suffered enough, and discussing his decision with nursing staff from that constitutional propriety would be facilitated if whom he obtained the medication, Dr Cox news of the King’s death reached Fleet Street before administered intravenous potassium chloride to the midnight deadline for appearing in the first Mrs Boyes who then died. Her body was cremated edition of the morrow’s newspapers. and it was a fortnight or so later before the matter Lord Dawson’s management was not challenged, was reported to the police. By then it was no longer but it seems unlikely that such reticence would possible to prove beyond reasonable doubt that this have ensued had any other member of the clinical very sick woman had died as a result of the prac- ’ team, or anyone from the royal household, given titioner s actions and, nominally for this reason, the injection of morphine. This suggests that at the the lesser charge of attempted murder was brought, time doctors were considered, to some unspecified so introducing the enormous legal advantage of degree, to be above the law. a sentence amenable to judicial discretion. Dr Cox was convicted but given only a 1 year suspended sentence. After a disciplinary hearing by the THE COMMON LAW EVOLVES General Medical Council he was allowed to Reliance on the existence of medical privilege is continue in practice, subject to some retraining. attributed to Dr John Bodkin Adams who, when The distinction between the cases of Dr Bodkin arrested in 1956 on suspicion of murder arising Adams and Dr Cox rests on ‘intention’. Both were Thorax 2011;66:347e350. doi:10.1136/thx.2011.159574 347 Review motivated to act by the benevolent wish to relieve symptoms rejected the view expressed by some clinicians that discontin- Thorax: first published as 10.1136/thx.2011.159574 on 18 February 2011. Downloaded from but Dr Cox intended to kill (albeit only to secure symptom uing mechanical ventilation would be killing the patient or relief), whereas Dr Bodkin Adamsdin the opinion of the assisting her to die. Yet the practicalities are less clear. Expert lawdintended only to relieve distress. Criminal offences are opinion was that Ms B had a less than 1% chance of surviving defined in terms of act and intent. Motive can be an exonerating while breathing spontaneously, presumably using her accessory factor, as it was for Dr Cox, but traditionally it only influences muscles. Cessation of ventilation was expected to lead to death. sentence, the end of the judicial process. The proximate cause, asphyxia, would be distressing for some Intent, motive and causation of death in a medical context minutes at least. Medication such as midazolam given to sedate were explored again in the 1992 case of Tony Bland who had been and relieve distress would be expected to impair the tone and in a persistent vegetative state after asphyxiation during the function of accessory respiratory muscles and so might hasten Hillsborough stadium disaster.5 A consensual application from death. However, this could not be criticised because the duty to the hospital authority and family sought a declaration that relieve distress, even though created by the patient’s rejection of withdrawing hydration and nutrition would not be unlawful treatment, justified coincident life-shortening consequences despite the expectation that death would follow. In other words, through the doctrine of double effect. neither civil suit nor criminal prosecution would ensue even though the patient’s condition was stable and likely to remain so indefinitely if hydration, nutrition and good nursing care THE ROLE OF STATUTE continued. Judicial opinion at all levels favoured the application, In another case from 2002 the European Court of Human Rights but the case was appealed as far as the House of Lords specifi- upheld the decision of the English courts at all levels that the cally because of the ethical importance of the decision. There it human rights of Diane Pretty were not contravened by the refusal was held that nutrition and hydration provided other than by to grant a declaration that her husband would not be prosecuted natural means did constitute medical treatment and that its were he to help her to die, at a time of her choosing, to avoid withdrawal would not be unlawful. Opinion was divided on further distress from her profoundly disabling motor neurone whether such a policy was justified because it was in the best disease.10 Her predicament prompted Lord Joel Joffe, former interests or not against the patient’s best interests or because his human rights lawyer who had conduct as solicitor in South degree of obtundation was so extreme that he had no best Africa in the Rivonia trial of Nelson Mandela and colleagues,11 interests. Despite the fact that the proximate or physiological to introduce a Private Members’s Bill in the House of Lords cause of death would be dehydration and starvation, the legal seeking to legalise medical assistance to die in carefully defined cause of death was deemed to be the ultimate factordthe circumstances and with many safeguards. A Select Committee asphyxial incident, not the actions of the clinical team. explored the evidence thoroughly and on an international basis. Following the principles of this decision, the subsequent inquest The proposal was neither supported nor rejected, but sugges- returned a verdict of accident and cited traumatic asphyxia as tions were made for further consideration.12 A modified Bill the cause of death.6 followed but was defeated on procedural grounds in a manner This landmark case made one other contribution to the contrary to parliamentary convention.