I
continue to be troubled by the concept of advance decisions to refuse treatment
being used to prevent lifesaving treatment for the consequences of deliberate
attempts to end one’s life.
I
wrote about one such case back in 2011. This concerned a 26 year old woman
called Kerrie Wooltorton. She committed suicide on 19th September
2007 by swallowing ethylene glycol (antifreeze), and although she had herself
called an ambulance and had allowed herself to be taken to hospital, she had
refused the treatment which would have saved her life.
Kerrie Woooltorton's Inquest
The
doctors in charge of her treatment allowed her to die because she had made what
was at the time described as a “living will” stating that she did not wish to
receive treatment for the effects of the deliberate ingesting of this lethal
substance.
The
reason I am revisiting this issue is because I recently came across an account
of the inquest report. Previously, the only information I had was the news reports
at the time of the inquest, which had taken place two years later in 2009.
Five
days before, she had written a letter. This stated:
To
whom this may concern, if I come into hospital regarding taking an overdose or
any attempt on my life, I would like for NO lifesaving treatment to be given. I
would appreciate if you could continue to give medicines to help relieve my
discomfort, painkillers, oxygen, etc. I would hope these wishes will be carried
out without loads of questioning.
Please
be assured that I am 100% aware of the consequences of this and the probable
outcome of drinking anti-freeze, eg. death in 95-99% of cases and if I survive
then kidney failure, I understand and accept them and will take 100%
responsibility for this decision.
I
am aware that you may think that because I call the ambulance I therefore want
treatment. THIS IS NOT THE CASE! I do however want to be comfortable as nobody
want to die alone and scared and without going into details there are loads of
reasons I do not want to die at home which I will realise that you will not
understand and I apologise for this.
Please
understand that I definitely don’t want any form of ventilation, resuscitation
or dialysis, these are my wishes, please respect and carry them out.
In
his summing up, the coroner stated:
Kerrie
had capacity and she could not therefore be treated and indeed, going further
than that, if she was treated in these circumstances and her wishes overridden,
it would have been an assault to have done so… Any treatment to save Kerrie’s
life in these circumstances would have been unlawful because the law respects
the autonomy of an individual to make a decision even if the decision is seen
to be perverse or unwise by others.
It
was stated at the inquest that Kerrie had an “incurable emotionally unstable
personality disorder”, that she had a long history of self harm (she had taken
9 similar doses of antifreeze in the year before her death), and that she had
been sectioned and admitted to psychiatric hospital on a number of occasions in
the past.
In
my original post on Kerrie Wooltorton, I dismantled the case being made that it
was unlawful to treat in these circumstances. Stuart Sorensen, writing in
Community Care at the time, concluded that the
Mental Capacity Act's Code of Practice “is clear that the Act does not support
suicide, assisted dying or mercy killing”. Her clear intention to end her life:
means that she cannot be seen as decision-maker in the eyes of
the law. The power to decide passes to the care team who have to act in what
they reasonably believe to be her best interests. It seems reasonable to doubt
that best interests means watching her die slowly and presumably painfully from
acute poisoning.
The
inquest, taking place 2 years after the Mental Capacity Act, made an assumption
that the decisions the doctors had made related to the MCA.
However,
when I looked more closely at the dates, I realised that the MCA did not
actually come into force until 1st October 2007. This was 2 weeks
after Kerrie had written her advance decision to refuse treatment, and over a
week after she had taken her life.
Government
guidance on implementation of the MCA said that “most
advance decisions, refusing life-sustaining treatments, made before October
2007 are unlikely to meet the specific requirements of the Act.” This fact in
itself should have provided sufficient justification for the hospital to have
disregarded her “living will” and to have provided her with treatment.
Should such advance decisions be respected?
So, to come back to my initial question, just because Kerrie
Wooltorton’s advance decision could legitimately have been disregarded, does
that mean that advance decisions, properly made out, would have to be respected
in all circumstances?
To begin at the beginning, S.24(1) of the Mental Capacity Act 2005
states:
“Advance
decision” means a decision made by a person, after he has reached 18 and when
he has capacity to do so, that if—
(a)
at a later time and in such circumstances as he may specify, a specified
treatment is proposed to be carried out or continued by a person providing
health care for him, and
(b)
at that time he lacks capacity to consent to the carrying out or continuation
of the treatment, the specified treatment is not to be carried out or
continued.
The
MCA Code of Practice makes it clear the sort of circumstances that might
justify making, and respecting an advance decision to refuse treatment. It
provides this scenario:
Mrs
Long’s family has a history of polycystic ovary syndrome. She has made a
written advance decision refusing any treatment or procedures that might affect
her fertility. The document states that her ovaries and uterus must not be
removed. She is having surgery to treat a blocked fallopian tube and, during
the consent process, she told her doctor about her advance decision. During
surgery the doctor discovers a solid mass that he thinks might be cancerous. In
his clinical judgement, he thinks it would be in Mrs Long’s best interests for
him to remove the ovary. But he knows that Mrs Long had capacity when she made
her valid and applicable advance decision, so he must respect her rights and
follow her decision. After surgery, he can discuss the matter with Mrs Long and
advise her about treatment options.
In
this situation, it is clear that Mrs Long has capacity to make an informed
decision, and that the decision is based on sound principles. She wants to have
children, and does not want any treatment that might jeopardise this.
But
what about people who want to successfully end their lives? This is not nearly
so straightforward.
In
the case of people requiring treatment for mental disorder, the Code has this
to say:
Advance decisions can refuse any kind of treatment, whether for a
physical or mental disorder. But generally an advance decision to refuse
treatment for mental disorder can be overruled if the person is detained in
hospital under the Mental Health Act 1983, when treatment could be given compulsorily
under Part 4 of that Act. Advance decisions to refuse treatment for other
illnesses or conditions are not affected by the fact that the person is
detained in hospital under the Mental Health Act.
So
what the Code is saying is that treatment for mental disorder can be given
under the Mental Health Act regardless of any advance decision, although
treatment for purely medical problems cannot be given under the MHA.
So
in the case of Mrs Long, if she happened to be detained under the MHA because
of the need for treatment for mental illness, she could be given that specific
treatment, but her existing advance decision relating to gynaecological
treatment would still stand.
But
when it comes to respecting an advance decision in the case of an attempt at suicide,
it becomes more complex.
Professor Kapur, writing in the British Medical Journal, has
this to say:
It
is difficult to be certain about an individual’s capacity at the time of
drawing up an advance directive and, although this is an issue with advance
directives generally, it may be particularly pertinent for suicidal individuals.
Suicidal behaviour is clearly linked to psychiatric disorder, with most people
who die by suicide having evidence of a psychiatric illness at the time of
death. This can affect decision-making capacity and even the law recognises
that advance directives may not apply if a person is likely to be detained
under the Mental Health Act.
If
there is any question that the patient lacks capacity at the time of the need
for life-saving treatment, then a best interests decision could be made to
override any advance decision.
In
the case of Kerrie Wooltorton, for example, there was a known history of mental
disorder, she had been subject to the Mental Health Act on several occasions,
and she had a history of self harm using antifreeze.
Looking
at the timeline leading to the fatal event, she had written her “living will” 5
days before drinking the antifreeze.
This
raises serious questions as to whether or not she had capacity at the time she
wrote the letter. She was clearly planning to drink the antifreeze, and it
would appear that she had written the letter in order to try to preempt any
attempt to save her life. As she had an established mental disorder, and was
clearly suicidal at the time she wrote this letter, it would be fairly safe to
speculate that her capacity at that time was impaired.
There
was certainly sufficient evidence to cast enough doubt on her capacity to
ignore her wishes and provide her with the necessary treatment.
But
the MCA has more to say. This is on the subject of assisting a suicide.
S.62
MCA states:
For
the avoidance of doubt, it is hereby declared that nothing in this Act is to be
taken to affect the law relating to murder or manslaughter or the operation of
section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).
S.2
of the Suicide Act 1961 relates to complicity in another’s suicide. While the
Suicide Act made it no longer an offence to commit suicide, it is an offence to
do an act “capable of encouraging or assisting the suicide or attempted suicide
of another person, and [that] act was intended to encourage or assist suicide
or an attempt at suicide.”
The
Code points out: “Nobody can ask for and receive procedures that are against
the law (for example, help with committing suicide)” (9.6).
While
on the surface this appears to relate more to the active assistance of suicide,
it is arguable that a deliberate failure to give life saving treatment might
actually constitute a criminal offence.
Purely
on this basis, I would argue that a doctor would be justified in deciding not
to risk prosecution.
So
what should a hospital do when someone who has attempted suicide presents with
an advance decision to refuse treatment?
Clearly,
the first thing to establish would be the validity of the decision. One would
need to be absolutely certain that they had full capacity when the decision was
made.
It
is arguable that someone with a history of severe mental disorder, and with
suicidal ideation and a history of previous attempts, may not have full
capacity. If the decision was made within days of the action, as in Kerrie
Wooltorton’s case, this could be evidence that their state of mind at the time
they made the decision was impaired by their mental disorder.
Such an advance
decision could easily be construed as being invalid.
But
what about a hypothetical case of someone with motor neurone disease who had
made an advance decision some months previously not to be treated or
resuscitated, and who had then contrived to take a fatal overdose at the point
at which they considered their condition to be adversely affecting their
quality of life so as to make that life worthless? Would one disregard their
decision? If they had had capacity, and had rationally explained their thinking
well in advance, it may be difficult to justify doing that.
Other ways of bypassing an advance decision in these circumstances
Up
until now, I have not explored alternatives to relying on the Mental Capacity
Act. There are at least two other options.
One
is, of course, to use the Mental Health Act.
It
is not uncommon to assess someone under the MHA who is either seriously
planning suicide, or has taken an overdose of a noxious substance and is
refusing treatment.
Capacity
is not an essential factor in these assessments. Nowhere in the MHA is capacity
mentioned. The requirement is for someone to have a mental disorder within the
meaning of the Act (which is very broad), and to be in need of assessment
and/or treatment.
Detention
under either S.2 or S.3 MHA would then provide a legal framework to provide treatment
against the will of the patient. While one cannot use this to compel treatment
for unrelated medical conditions (as in the case of Mrs Long), it can be (and
often is) used to treat the consequences of self harm arising from the
patient’s mental disorder. This would include treatment for overdoses or the
effects of other noxious substances.
Any
advance decision would be irrelevant in such a situation.
The
hospital would also have a third option. This would be to go to the Court of
Protection. Then a Judge can make a decision as to whether to impose life
saving treatment or to permit the withdrawal of treatment.
I
have discussed a number of court decisions on this blog where a Judge, or even
the Appeal Court, has been asked to make decisions relating to the treatment or
otherwise of people with anorexia nervosa and other mental disorders.
So
to conclude, I do not think that there was a need for Kerrie Wooltorton to die
back in 2007. I also think that, in a similar situation today, there are a
number of ways in which treatment could be provided regardless of the existence
of any advance decision.
People
with mental disorder do not have to be allowed to die simply because that is
what they say they want at the time of the crisis.
