Live and let die
BMJ 2009; 339 doi: https://doi.org/10.1136/bmj.b4112 (Published 07 October 2009) Cite this as: BMJ 2009;339:b4112
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Along with many of the previous respondents I was disturbed by the
Coroner's conclusion that it was appropriate not to try to save the life
of Ms Wooltorton, a 26 year-old woman who had swollen antifreeze. The
attending renal physician said it was his duty to act on her wishes as
otherwise it would legally have been assault. The accompanying legal
commentary notes that if she "was in fact legally competent" then "refusal
was her right."
This confuses the right to refuse life-sustaining care by a patient
requiring or depending on such with refusing treatment in the context of
self-inflicted injury. In the case of the latter, such attempts have
traditionally been taught to be attempts at suicide -- not the result of
competent and rational deliberation but the product of individuals whose
capacity is impaired by a failure to truly appreciate or whose actions are
less than freely made. The right to self-determination is not the right to
drink antifreeze and not be treated.
Authorities in the US<1> and Canada<2> have allowed that
patients may refuse life-sustaining care where they have not set in motion
the death-causing illness. Thus,refusal allows the underlying illness to
take its natural course. By contrast, suicidal patients, like Ms
Wooltorton, attempt to cause their own death; such attempts are not cries
for no help, they are rather dire calls for more care and rescue. To worry
about charges of assault at such times is to be driven by worries about
lawyers at the bedside rather than the patient's best interests. It could
be considered a dereliction of one's professional duties, and indeed
grounds for charges of negligence, not to attempt to rescue suicidal
patients. Advance directives refusing care in cases of attempted suicide
are not binding as they are requesting physicians to do something that is
unprofessional. <3>
The only grounds that might justify not treating a patient after a
10th ingestion of antifreeze might be that of futility -- the
impossibility of beneficence -- but this would be a clinical judgment, not
a legal one.
It is a sad day when legal concerns outweigh common sense and good
ethics.
Footnotes:
1. Brophy v New England Sinai Hospital, [1986] Sup Jud Ct Mass 497 NE 2d
626.
2. Nancy B v Hotel-Dieu de Quebec et al. [1992], 86 D.L.R. (4th) 385-95
(Q.S.C.)
3. Hebert P. Doing Right: A Practical Guide to Ethics for Medical Trainees
and Physicians. 2nd ed (2009) Toronto, OUP: 234.
Competing interests:
None declared
Competing interests: No competing interests
The death of Kerrie Wooltorton by ingestion of antifreeze
was undoubtedly tragic [1]. However it was also wrong. An
audience of over 400 mental health professionals at a
conference on the reforms of the Mental Health and Mental
Capacity Acts in Manchester spontaneously applauded
consultant psychiatrist Dr Paul Strickland when he
proclaimed that he would have sought to save this woman’s
life [2].
McLean is correct to suggest that “even the presence of
mental illness” is not a bar to the presumption of mental
capacity[3]. But McLean fails to mention that depression and
emotionally unstable personality disorder are mental
disorders, which frequently impair an individual’s cognition
and emotional health. Moreover McLean fails to emphasise
that the mental capacity needed to make a decision to refuse
life-saving medical treatment is much higher than the mental
capacity needed to refuse other forms of medical treatment
[4]. It is difficult to see how a physician (and
subsequently a coroner’s court) could come to the view that
Wooltorton was able to “weigh” and “use” information given
to her about treatment and the consequences of refusing to
accept treatment, if she was mentally disordered as
described [5].
The coroner’s notes confirm that the doctors in charge of
Woolterton decided that she did not have a mental disorder
[6]. This appears to have been without the benefit of a
psychiatric assessment. No reference to a psychiatric
assessment is contained in the notes of extracts from the
summing up by coroner William Armstrong following the
inquest held on 28th September 2009. This is surprising
given the prima facie evidence that she was suffering from
mental disorder: she had a history of repeated self-harm and
presented having ingested a fatal overdose. Where there is a
suspicion of mental disorder in these circumstances a
psychiatric assessment ought to mandatory to establish the
presence of mental disorder and whether capacity to consent
to treatment was impaired. Moreover, if mental disorder had
been diagnosed, an assessment for detention under section 2
of the Mental Health Act 1983 could have been undertaken. It
may then have been possible to compulsorily treat Woolterton
for the consequences of mental disorder (the ingestion of
antifreeze) under section 63 of the Mental Health Act 1983
[7]. The Mental Health Act 1983 ‘trumps’ the Mental Capacity
Act 2005 (except in the case of specific treatments such as
ECT where capacity to refuse in most circumstances cannot be
overridden).
This tragedy needs to be understood in the context of
recognized “pejorative, judgmental, and rejecting attitudes”
towards those who have been given a diagnosis of personality
disorder. Patients previously labelled as personality
disordered are seen as “manipulative, difficult to manage,
unlikely to arouse sympathy, annoying, and not deserving NHS
resources” [8]. This is not to suggest that such attitudes
were a factor in this case, but without education and debate
there is a risk that this judgment could worsen clinical
outcomes in suicidal patients with personality disorder.
The treatment and death of Wooltorton demonstrates the
difficulty in achieving the correct balance between a
vulnerable person’s right to autonomy and their right to
life-saving medical treatment.
1. British Medical Journal 2009;339:b4112
2. Personal observation made at ‘Taking Stock: The Mental
Health and Mental Capacity reforms: the first year’ at Royal
Northern College of Music, Manchester by the Approved Mental
Health Professionals Association of North West and North
Wales and Cardiff Law School on 9th October 2009
3. British Medical Journal 2009;339:b4112
4. T (adult: refusal of treatment), RE [1992] 4 All ER 649
at 661
5. Section 3(1)(c) Mental Capacity Act 2005
6. Personal communication from coroner William Armstrong,
notes of extracts from summing up of the Kerrie Wooltorton
Inquest 28th September 2009
7. B v Croydon HA [1994] 22 BMLR 13 at 687 and 688
8. British Journal of Psychiatry (1988), 153, 44-49
Competing interests:
None declared
Competing interests: No competing interests
Prof McLean has given us a cogent summary of the law as it apparently
stands. The Mental Capacity Act 2005 provides for a presumption of
capacity- and people with capacity are allowed to make unwise decisions.
Thus far, the issues of cases such as Ms Wooltorton -tragic as they are-
have centred on capacity.However, it must be acknowledged in assessment of
capacity that there is a body of opinion among GPs & psychiatrists
that the belief system that ends in a decision to end one’s life calls
into question whether one can truly understand, retain and (most
importantly for the belief system) weigh information about the decison
they are making. Additionally, there is judicial acknowledgement that the
more important the consequences of a decision, the more thorough the
assessment of capacity must be.The capacity required to refuse treatment
is stricter than the capacity to consent- see Re: T (adult) [1992] 4 All
ER 649. It is also worth noting that a judge is not bound by a
professional's assessment of capacity and may consider other evidence of
the manner in which a person goes about his affairs- Re: (adult) [2002]
EWHC 901 (Fam); Masterman-Lister v Jewell [2002] EWCA Civ 1889 [2003] 3
All ER 162. There is more to this issue than might be suggested in Prof
McLean's sysnopsis.
Additionally, I await with interest what will happen when someone
perceived as vulnerable takes their own life using an advance directive.
If Ms Wooltorton was in a police or prison cell, the state has a duty of
care to those whose liberty it has taken according to our law- see the
Reeves v Commissioner of Police of the Metropolis [1999] 3 All ER 897 or
Savage v South Essex Savage v South Essex Partnership NHS Foundation Trust
[2008] UKHL 74 cases. But will coroners see it that way?
Competing interests:
None declared
Competing interests: No competing interests
Administering life saving treatment for patients who have attempted
suicide, and who are refusing such treatment is an area of interface
between the Mental Health Act (MHA) and the Mental Capacity Act (MCA). The
majority of people who commit suicide have a mental illness at the time of
committing suicide (Barraclough et al, 1974). Therefore, withdrawing life
saving treatment for such patients should not be done before seeking a
psychiatric opinion, and carefully considering the use of the MHA. If the
use of the MHA is thought to be appropriate, any advanced decisions made
by the patient to refuse treatment can be overridden by the compulsory
treatment provisions of Part 4 of the Act. Further guidance should be made
available to doctors of all specialities, on how to act when faced with
such a situation.
References:
Barraclough et al, A hundred cases of suicide: clinical aspects. British
Journal of Psychiatry 1974; 125: 355 -373
Competing interests:
None declared
Competing interests: No competing interests
The case of Kerrie Wooltorton raises some interesting issues. I
don't know the full details of the case, but I do wonder if Shelia McClean
is correct in saying the healthcare professionals involved had 'no
alternative' but to let her die. No mention is made of the possibility of
using the mental health act.
In this case the patient had a clearly diagnosed mental disorder
(emotionally unstable personality disorder) and it could be argued that
her self-poisoning (placing her at serious risk) was a direct result of
this disorder. Thus, she could be detained in hospital and treated for
the poisoning under the mental health act, regardless of her wishes.
Whether it is ethically sound to treat a capacitous person against their
will is quite another question (1).
Reference:
1. Richardson G. Balancing autonomy and risk: a failure of nerve in
England and Wales? Int J Law Psychiatry 2007; 30: 71 –80
Competing interests:
None declared
Competing interests: No competing interests
Sheila A M McLean's article 'Live and let die' mentions the issue of
depression and how it affects capacity. I think this is an important issue
and one that people need to take account of when assessing capacity.
People who are depressed may well be fully able to go through all the
steps necassary to have capacity and thus seem to be capable of making
decisions. The problem is that the depression drives the decision making
process in a certain direction that may not be the one the individual
would go if they were not depressed. This is most easily seen in the
'weighing' process of the information. In considering their future, for
example, someone who is depressed will attach more weight to negative
information and less weight to positive information and may therefore come
to the conclusion that life is not worth going on with. This may result in
them refusing life saving treatment. If they are not depressed the weight
they attach to the different bits of information will be more equal and
the decision reached that life is worth living and thus life saving
treatment accepted. Even quite mild degrees of depression, however caused,
can have subtle effects on the weighing up of information that result in a
very different decision being reached to the one the patient would reach
were they not depressed.
So depression often does not apparently make someone fail the
capacity test but we must be aware that the mood disorder may well be
completely distorting the whole decision making process in a certain
direction resulting in different decisions being made. Conversely someone
with mania/hypomania will have a decision making process distorted in the
opposite direction.
Evaluating mood disorders and their effect on the decision making
process is therefore vitally important when accessing capacity.
Competing interests:
None declared
Competing interests: No competing interests
The comments by Sheila McLean in “Live and let die” highlight the
relevant key legal issues. Presumably there had been several psychiatric
opinions previously.We do not know how far she really consented to
treatment on the 9 previous occasions. The advance decision/directive
could have been an attempt to clarify her wishes . Whether one calls it a
directive or decision is largely immaterial provided it was drawn up in
line with the Mental Capacity Act advice and included a statement to the
effect that it should apply even if she might die as a result. It might
have included provision for the circumstances surrounding the final
admission (ie been disease specific) to avoid further treatment as
previously. As she was deemed to have capacity on admission the
decision/directive was irrelevant legally but perhaps provided some
emotional comfort to the doctors concerned that they were acting
appropriately. One hopes that the medical and nursing teams treated any
distressing symptoms arising from the poisoning in a sympathetic and
compassionate way even if they disagreed with her refusal of other
treatment. Initiating aggressive treatment pending various opinions and
perhaps eventually withdrawing it was not a clearly humane alternative.
These are not new dilemmas.What is new is that doctors must yield their
earlier near total control and learn not to override any refusal of
treatment if that choice seems to be adequately informed and in line with
the MCA recommendations. This applies even if it goes contrary to the
religious or personal views of the doctor and it helps to protect the
patient from these. The real need is for pro-active action. After 9
episodes a tenth was foreseeable. Those opposing the Joffe Bill argued
that depression might underlie requests for assisted dying by the
terminally ill. I would argue that any depression should have been
recognised and treated much earlier. Finally,we should not lose sight of
the relevance of what happened to Kerrie Wooltorton in terms of the wider
debate about assisted dying. Even without any formal change in the law
docors may find dilemmas of this type will become more frequent.
Competing interests:
Member of Dignity in Dying
Competing interests: No competing interests
As a physician and teacher of ethics, I faced a similar situation to
the Woolorton case recently and have sympathies for all those
involved in the tragedy. However, I am deeply troubled by the spectre of
‘legalism’ in the commentaries and discourse following the coroner’s
ruling in Norwich (1). ‘Legalism’, whereby practitioners place an
undue emphasis on the law, is an ever-present danger in medical ethics,
with a temptation for practitioners to retreat to the certainties of the
law rather than engage with the more complex and challenging arena of
clinical ethics and practice which emphasize care, communication, and
competence, both clinical and ethical (2).
There are clearly important links and shared interests between health
law and ethics, but medical law is a separate discipline which is of its
nature anethical, and its processes of precedents are often too rigid for
the complexity and inter-individual variability of caring for individual
people. For example, Prof McLean quotes the well-known C case as a
precedent for refusing consent in the face of mental illness (Re C (adult:
refusal of medical treatment) [1994] 1 All ER 819). However, in C’s
case, there was extensive psychiatric assessment prior to the court case,
the patient’s mental health was relatively stable even if unwell, and
the amputation was a quasi-elective intervention: none of these would have
seemed to apply in the Norwich case. Given that the patient’s mental
state appeared unstable, a second psychiatric opinion at the very least
would appear to be critical. It would seem appropriate that doctors
involved are mindful of the extensive literature on altered mental status
and deep emotional distress at the time of attempted suicide, and to be
able to balance this against the fear of prosecution for assault.
For the profession, this case points for the need for a due
differentiation between ethics and medical jurisprudence, which would
recognize the needs of students and practitioners to acquire and
continually develop competence in each of these areas. The increasing
trend to joint departments of medical law and ethics in the UK may not
serve the development of a critical mass ethical fluency among clinicians,
as the focus on precedent and law may detract from the more holistic,
challenging and subtle demands of ethical deliberation.
Bertrand Russell wrote that the demand for certainty is one which is
natural to man, but nevertheless an intellectual vice. If we cannot
further promote ethical articulacy and prioritize an ethics of care,
communication and competence ahead of legalism (3), it is a troubling
thought that the demand for certainty may also pose a risk to life and
well-being.
References
1. McLean SA. Live and let die. BMJ 2009;339:b4112.
2. Appelbaum PS. Legalism, postmodernism, and the vicissitudes of teaching
ethics. Acad Psychiatry 2004;28(3):164-7.
3. Russell C, O'Neill D. Developing an ethics of competence, care, and
communication. Ir Med J 2009;102(3):69-70.
Competing interests:
None declared
Competing interests: No competing interests
Suicidal thoughts, feelings, and behavior are a psychiatric crisis, which requires the multi-disciplinary intervention of physicians, nurses, psychologists, social workers, and clergy, all of whom have expertise in suicidology. In order to assist these professionals, I offer my suicide prevention checklist:
S- stressors (physical, emotional, social, financial)
U- underlying problems, conflicts, and disappointments
I- ideation, intentionality, and impulse control
C- coping, cooperation, contact, and continuity
I- intervention (psychotherapy, daycare, hospitalization)
D- diet, drugs, and addictive substances
E- expectation of help, improvement, and recovery
Competing interests:
None declared
Competing interests: No competing interests
Clear Guidance on Capacity Assessment is Urgently Required
We found Prof McLean’s reflections [1] on the ethical and
legal framework that justifies the course of action taken by
the doctors involved in the Kerrie Wooltorton case very
enlightening. As trainee psychiatrists, we are frequently
the first port of call for medical teams or A&E officers
confronted with patients objecting to treatment following an
act of self harm. These situations are notorious for raising
everyone’s anxiety, but as far as we recall tend to resolve
themselves through a combination of patience, negotiation
and assertiveness on the part of those involved. According
to Prof McLean the advance directive is a red herring in the
Wooltorton case, and it is the presence or absence of
contemporaneous capacity to refuse treatment which deserves
scrutiny.
In our view the result of the inquest has wide ranging
practical implications. The Mental Capacity Act 2005 states
that the assumption of capacity is universal unless proven
otherwise. In other words, the purpose of a capacity
assessment is to prove incapacity. There are four essential
components to this assessment [2]:
1-A person should be able to understand the information
relevant to the decision.
2-A person should be able to retain the information relevant
to the decision.
3-A person should be able weigh that information as part of
the process of making that decision.
4-A person should be able to communicate their decision.
It is the third point that can be mostly contentious and
subject to interpretation, specifically in the context of a
mental illness and following an act of self harm. Prof
McLean recognises the difficulties involved in considering
the impact of a ‘depression’ on one’s capacity to ‘weigh’
information objectively. One could argue that depression or
an emotional instability, as part of a personality disorder
or more acutely following adverse events (receiving bad news
, the breakup of a relationship, the effect of an overdose)
are states of mind that prevent a rational assessment of the
pros and cons of one’s decision. This is only one example of
the uncomfortable interface between the Mental Capacity Act
2005 and the Mental Health Act 2007 [3].
The choice faced by the treating physicians in the
Wooltorton case is not unusual. Their decision not to treat
seems to have derived from a rather narrow interpretation of
the third point mentioned above, backed by the coroner and
by Prof McLean as apparent in her article. In practice, the
majority of doctors would tend to apply the definition in
its broadest sense and treat when in doubt, since the
consequences of saving a life are at least reversible. The
other option would be for Emergency staff but more
worryingly for Mental Health Professionals to accept at face
value the wish of someone to end their life without
challenge, impacting no doubt on the number of completed
suicides.
A genuine debate is needed on this issue, and merely falling
back on the ethical justification is of limited use in the
pressured environment of emergency medicine. We might need
to move to a position whereby we accept that an act of
suicide can be the fruit of a rational process, but that can
only follow from an in-depth review of the philosophy behind
our suicide prevention strategy and the resources deployed
by mental health services to prevent acts of self harm in
the absence of a diagnosable severe and enduring mental
illness. As doctors we want to save lives where possible.
The dilemna faced by the clinical team involved in the
Wooltorton case was undoubtedly an unenviable experience.
The conclusions from the inquest do not offer a satisfactory
template to be routinely applied by clinicians. In fact it
complicates matters further and clear guidance is needed
sooner rather than later.
1. British Medical Journal 2009;339:b4112
2. Section 3(1) of the Mental Capacity Act 2005
3. British Medical Journal 2009;339:b4400
Dr Joseph El-Khoury MRCPsych, ST6 in Adult Psychiatry
Dr Nicholas Woodthorpe MRCPsych, ST6 in Old Age Psychiatry
Oxfordshire & Buckinghamshire Mental Health Foundation NHS
Trust
Competing interests:
None declared
Competing interests: No competing interests