Law, Ethics and Compromise at the Limits of Life

To Treat or not to Treat?

Richard Huxtable

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136227028
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho médico

A conflict arises in the clinic over the care of a critically ill, incapacitated patient. The clinicians and the patient's family confront a difficult choice: to treat or not to treat? Decisions to withdraw or withhold life-sustaining treatment feature frequently in the courts and in the world's media, with prominent examples including the cases of Charlotte Wyatt, in the UK, and Terri Schiavo, in the USA. According to legislation like the Mental Capacity Act 2005, the central issues are the welfare (or 'best interests') of the patient, alongside any wishes they might have conveyed, via an 'advance directive' or through the appointment of a 'lasting power of attorney'.

Richard Huxtable argues that the law governing both welfare and wishes frequently fails to furnish clinicians and families with the guidance they require. However, he finds this unsurprising, given the competing ethical issues at stake. Huxtable proposes that there is a case for 'principled compromise' here, such that the processes for resolving principled disputes take precedence. He argues for greater ethical engagement, through a reinvigorated system of clinical ethics support, in which committees work alongside the courts to resolve the conflicts that can arise at the limits of life.

Providing a comprehensive account of the law pertaining to children and adults alike, and distinctively combining medico-legal and bioethical insights, this book engages scholars and students from both disciplines, as well as informing clinicians about the scope (and limits) of law at the limits of life.

1
Judging law and ethics at the limits of life

The common law is tolerant of much illogicality, especially on the surface; but no system of law can be workable if it has not got logic at the root of it.

Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465 at 516 (Lord Devlin)

1.1 Conflicts in the clinic: the case of David Glass

David Glass was born in 1986 with hydrocephalus, spastic quadriplegia, learning difficulties and no ability either to walk or talk.¹ His family, in particular his mother Carol, provided him with 24-hour care. Having become particularly unwell in July 1998, he was admitted to St Mary’s Hospital, Portsmouth, where an operation to alleviate an upper respiratory tract obstruction was undertaken. Post-operative complications, including infections, led to David being placed on a ventilator. The health care team advised David’s family that he was dying and that further intensive care was inappropriate. Although the family members were not satisfied with this judgment,² they twice declined the team’s offer to arrange an independent second opinion.

In the event, David was well enough by the end of July to be moved from intensive care to the paediatric ward. Around this time, the possibility of using morphine to relieve David’s distress was explored, to which his mother objected. David was discharged in early September but was readmitted on a number of occasions for treatment for respiratory tract infections. The use of morphine was again discussed when David was hospitalised on 8 September; Mrs Glass remained firmly opposed to this and she also instructed that efforts should be made to resuscitate her son in the event of cardiac arrest.

One of the doctors recorded that he thought an outside view should be sought, perhaps from the courts. David’s GP also contacted the team, noting the family’s concern that David would be ‘helped on his way’ with morphine.³ Other notes taken by the doctors that day and the next suggest that Mrs Glass accepted that intubation would be inappropriate (although oxygen would be offered) and, as the Official Solicitor had advised,⁴ that morphine could be used to relieve David’s distress even without her consent. One of the team, Dr Hallet, noted Mrs Glass’s opposition to ‘euthanasia’ and explained that this was not the team’s intention; he recorded that Mrs Glass agreed with the use of morphine if it was needed to control pain.⁵ Satisfied that agreement had been reached, Dr Hallet concluded that ‘involvement of the court may not be necessary’.⁶

In October, David’s condition again deteriorated, necessitating readmission. By 20 October, the doctors felt that David was ‘dying from his lung disease’.⁷ Mrs Glass and her family disputed this view, and objected to the proposed use of diamorphine (which is a more soluble and potent opioid than morphine). Once more the doctors recorded that ‘the use of Morphine is not euthanasia – it is to relieve [David’s] distress’.⁸ By this time, the police had become involved; an officer advised the family that any attempt to remove David would result in arrest and that they themselves would be removed if they attempted to interfere with the administration of diamorphine. The dose of the analgesic was also disputed (1mg per hour, which the family argued was an adult dose), but the doctors replied that David had built up tolerance to opioids and that the dose was appropriate given his weight. Security guards then intervened and threatened to eject the family after they attempted to prevent the doctors from entering David’s room. Around this time, a ‘Do Not Resuscitate’ (DNR) order was placed in David’s notes, without Mrs Glass’s knowledge.⁹ The doctors also recorded that the diamorphine was achieving its intended purpose, although the dose was reduced following further objections.

The next day Mrs Glass was alarmed at David’s deterioration and demanded that the diamorphine be stopped. Dr Walker was willing to do this provided that the family did not attempt to revive David, and thus disturb his current ‘peace’.¹⁰ A fistfight broke out between some family members and two of the doctors, during which time Mrs Glass apparently ‘resuscitated’ her son.¹¹ The police intervened, and they – along with a mother visiting another patient – were also assaulted. All but one of the patients on the ward had to be evacuated.

The day after these incredible incidents, David’s condition had improved sufficiently that, after arrangements were made for home care (albeit incomplete arrangements, according to Mrs Glass), he was discharged. In a letter in November 1998, the Portsmouth Trust notified the family that it could no longer offer treatment to David and, given the disagreements, explained that any future care should be provided in Southampton General Hospital.

Unsurprisingly, this difficult situation generated a flurry of legal activity. The criminal law was brought to bear, which resulted in some of the Glass family being convicted of assault and imprisoned (although their sentences were reduced on appeal).¹² The Crown Prosecution Service meanwhile found insufficient evidence to charge the doctors with attempted murder, conspiracy to murder, or any offences against the person. The General Medical Council also declined to find the doctors guilty of unprofessional behaviour; Mrs Glass had alleged that the doctors assaulted David in administering ‘heroin’ without parental or judicial approval.¹³ Efforts to invoke the civil law of tort, albeit this time against Mrs Glass, also failed, as the trust was unable to prove trespass to the person.

Mrs Glass also looked to administrative law for a remedy, by seeking judicial review of the Trust’s decisions in relation to David’s care. Scott Baker J rejected the case, finding that this was an inappropriate legal mechanism for assessing a situation that no longer obtained (as the Portsmouth Trust no longer provided David’s care) and that any prospective advice would be worthless as it would rest on speculation and might inhibit future treatment. On appeal,¹⁴ Woolf MR felt it unnecessary to worry about which legal mechanism was employed in a case such as this. However, he also ruled that the numerous ‘questions of judgment involved’ prevented the court from making any decision in advance of the situation which might materialise.¹⁵ He nevertheless reiterated Scott Baker J’s advice that the courts would be available if needed.

On 5 June 2000, David and Mrs Glass brought an action to the European Court of Human Rights, complaining that their rights under the European Convention on Human Rights had been breached. They specifically claimed violations of Articles 2 (the right to life), 6 (the right to a fair trial), 8 (the right to respect for private and family life), 13 (the right to an effective remedy) and 14 (freedom from discrimination in the enjoyment of the Convention rights). The Court admitted the case for a full hearing, albeit only on the basis of those claims pertaining to Article 8.¹⁶ At this hearing, the Court unanimously ruled that the right had been violated. Although Judge Casadevall felt that the non-consensual DNR order should also have been considered, the majority of the judges focused on the use of diamorphine: in the face of Mrs Glass’s ‘firm opposition’, this amounted to an interference with David’s ‘right to respect for his private life, and in particular his right to physical integrity’.¹⁷ The doctors had legitimately sought to serve David’s interests; it was clear also that they had not intended to hasten his death; but it was the Trust that fell short of its obligations, in failing to refer the matter to the High Court, particularly in the face of the doctors’ comments to this effect. The Trust could not have anticipated the fracas but it certainly could have obtained an emergency hearing. In addition to costs incurred, damages of €10,000 were awarded jointly to David and his mother.

1.2 Judging law: rationality and the rule of law

Did the law respond appropriately to the dilemmas in David Glass’s case? Or, more accurately, were the responses of the various legal officials and bodies (such as the prosecutors and judges), and the statements and principles of law on which they relied, appropriate to this case? And how are we to judge that which is appropriate and inappropriate here? The temptation to delve directly into the substantive issues posed by David Glass’s case is great; indeed, it is probably the standard approach in a book like this. However, I think it worth breaking with convention and postponing this enquiry until later chapters in favour of first developing a set of criteria for judging whether (any) law is ‘good’ or ‘bad’.

1.2.1 Judging law from within

In order to assess how law fares with the dilemmas arising in David Glass’s care, we first need to find some ground rules for judging law. More than a moment’s reflection on this task is merited, since the ground rules are often too readily assumed in the campaign to criticise the old and craft the new.

Distinctions emerge depending upon the standpoint from which one views law, and the substance with which one fills the criteria for judging law. Starting with the standpoint, one might view law from elsewhere, that is, from some external perspective, such as might be offered by ethical theory.¹⁸ This will often be entirely appropriate, certainly in a case like David’s, but we need also to be satisfied that we are judging law on its own terms, that is, from within, mindful of that which law is capable of achieving and, indeed, that which it is not. In the words of Alastair MacIntyre, we want to get within the practice known as ‘law’, where ‘a practice’ can be understood as:

… any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, ...