Should euthanasia be permitted for people with mental disorder? The case of Aurelia Brouwers

Aurelia Brouwers

In August 2018 the BBC published an article online about a woman in the Netherlands called Aurelia Brouwers. The full article can be found here.

Aurelia was quoted as saying:

I'm 29 years old and I've chosen to be voluntarily euthanised. I've chosen this because I have a lot of mental health issues. I suffer unbearably and hopelessly. Every breath I take is torture…

The article went on to explain that in the Netherlands euthanasia is permitted if a doctor is satisfied a patient's suffering is "unbearable with no prospect of improvement" and if there is "no reasonable alternative in the patient's situation".

Although most euthanasia candidates in the Netherlands have terminal or otherwise untreatable medical conditions, 83 people with mental health issues were subject to euthanasia in 2017. Only around 10% of requests for euthanasia from people with psychiatric conditions are approved.

Aurelia said:

When I was 12, I suffered from depression. And when I was first diagnosed, they told me I had Borderline Personality Disorder," she says. "Other diagnoses followed - attachment disorder, chronic depression, I'm chronically suicidal, I have anxiety, psychoses, and I hear voices.

The psychiatrist who approved the decision to end Aurelia’s life, Dr. Kit Vanmechelen, said:

 You must have done everything to help them diminish the symptoms of their pathology. In personality disorders a death wish isn't uncommon. If that is consistent, and they've had their personality disorder treatments, it's a death wish the same as in a cancer patient who says, 'I don't want to go on to the end.'

On 26^th January 2018 she was given the poison that would kill her and took it.

Readers of this blog will know that I continue to be troubled by people with mental disorders either being allowed to die,or facilitating their deaths.

Assisted suicide, which is what euthanasia is, remains a criminal offence in the UK, so cases like Aurelia Brouwers cannot happen here. That is not to say that there are no cases of assisted suicide, but the incidence of such cases is low.

According to the Crown Prosecution Service, between 1^st April 2009 and 31^st January 2018, there were 138 cases referred by the police that had been recorded as assisted suicide. Of these 138 cases, 91 were not proceeded with by the CPS. 28 cases were withdrawn by the police. This is an average of only around 15 per year.

The CPS website states:

There are currently two ongoing cases. Three cases of assisted attempted suicide have been successfully prosecuted. One case of assisted suicide was charged and acquitted after trial in May 2015 and seven cases were referred onwards for prosecution for homicide or other serious crime.

One such case was that of Kevin Howe. He was a friend of Stephen Walker, who while drunk, asked him to buy him some petrol so he could set fire to himself. He duly obliged, and Stephen fulfilled his promise. Stephen did survive, but Kevin Howe was found guilty of attempted assisted suicide, and received a 12 year prison sentence.

Another case was that of Lyndsay Jones. She was an acquaintance of Philip Makinson, who was suffering from severe depression and had already tried to kill himself by cutting his wrists. She was a heroin addict, and at his request and with his consent provided him with what she knew to be a fatal dose of heroin. She was convicted of manslaughter, and received a prison sentence of 4½ years.

It is significant that both these cases involved people with mental health problems rather than terminal illness. In one of these cases, the person who “assisted” the person wishing to kill themselves did so with deliberate malice. According to the CPS, it is less likely to lead to a prosecution if the person assisting “was wholly motivated by compassion”. In these situations, this was certainly not the case.

However, there are situations in which people with mental disorder have been permitted to die, either through no action being taken to save life, or through a decision of the courts to cease lifesaving treatment.

One such, of course, is the case of Kerrie Wooltorton, which I have discussed at length in two blog posts, most recently in June 2018. Kerrie took a fatal dose of antifreeze, and because she had written an advance decision to withhold treatment, the doctors in the A&E department allowed her to die. I am thankfully not aware of any other incidences in which an advance decision has been made, or allowed to stand, for a person with mental disorder.

There have also been Court of Protection decisions relating to people with mental disorder, where a decision has been taken to cease lifesaving treatment. One, the case of C from 2015, concerned a woman with narcissistic personality disorder who did not wish to continue treatment for the effects of a serious overdose because she had “lost her sparkle” and no longer wanted to live.

There have also been two other cases, the case of X and the case of W, both of whom had anorexia nervosa, where the decision was made not to continue with forced treatment for their disorders.

There is an essential difference between a regime in which someone with mental disorder can legally be assisted to end their own life at their request, and one where it is necessary for a court to make a situation specific decision regarding whether or not to continue to provide lifesaving treatment for the consequences of a mental disorder.

With the former, there is always the risk that a clinic specialising in assisting suicide, which presumably would expect to receive payment for the service, may not be sufficiently rigorous in deciding whether or not someone has the capacity to make a decision that will end their life. Indeed, it could be possible for a rogue clinician to encourage people to die.

There are several examples of doctors and nurses who have deliberately killed their patients. A British one is of course Dr Harold Shipman. Another currently in the German courts is Niels Hoegel, a nurse who has admitted killing at least 100 patients under his care.

My basic position stands, which is that no-one who wants to end their life because of their mental disorder should be permitted to do so if it can be prevented. This is one of the basic principles that informs my practice as an AMHP. Furthermore, the resources should be in place to reduce completed suicide as much as possible.

In October 2018, Jackie Doyle-Price was appointed as Minister for suicide prevention. This was in response to the fact that suicide is now the leading cause of death in men under 45 years in age.

Unfortunately, despite the recent announcement that £2 billion is being provided for mental health services, this is not actually new money, and in view of the leaching away of funding for mental health care over the last 8 years, even if it was all spent on improving services, it would be unlikely to significantly improve suicide prevention.

The Government report, Preventing Suicide in England, published in January 2017, stated that “the latest data shows that people who have died by suicide who have been in contact with mental health services is estimated to have increased to 1,372 in 20146 from 1,329 in 2013.”

The most recent NCISH Report for 2018 into Suicide and Safety in Mental Health reported that “in England the number of patient suicides in 2016 was similar to the previous two years but the patient suicide rate fell as patient numbers increased.”

This report suggested “10 ways to improve safety” in this helpful diagram.

It is clear that current services are failing miserably to provide these essential safety strategies, and it is unlikely that the current Government, Suicide Minister or not, has the motivation or will to make a significant difference to suicide prevention.

Can Advance Decisions be used to refuse treatment for suicide attempts?

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 19^th 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 1^st 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.

The Case of P and the MCA/MHA Interface: Recent Case Law

An urgent referral to the Courts for a child, P, aged 17 years, was made on 13th May 2014 and was heard late at night by Mr Justice Baker.

P had a history of self harming behaviour and was well known to the Child and adolescent Mental Health Service. She had briefly been detained under Sec.2 MHA, but had been discharged the previous week.

In the afternoon of 13th May 2014 she had taken an overdose of paracetamol, and was refusing lifesaving treatment. Although her mother had given consent to this treatment, the hospital trust was reluctant to treat her on this basis.

They arranged for the on call child and adolescent psychiatrist to assess P. He did not have any previous acquaintance with P prior to the assessment.

The judge noted:

 

“Although she suffered from a personality disorder, it was his view that she did not lack capacity to make decisions concerning her medical treatment. She was able to understand information and retain it, and also to weigh it up and use it. I was told that the physician at the hospital who was responsible for treating P this evening has some doubts about the psychiatrist’s opinion, having observed her behaving in an erratic and inconsistent way during the course of this hospital admission.”

Because of the necessity to treat the overdose before irreversible damage was done, the Trust went to the court to seek a declaration “that it was lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the overdose”.

The case depended entirely on a judgment relating to the capacity of P. The judge noted: “although the physician at present treating P in hospital has some doubts as to her capacity, the psychiatrist responsible for treating her has expressed the view that she has capacity, notwithstanding her mental health history and personality problems.”

The judge reached the conclusion that he was “not satisfied that P lacks capacity within the meaning of section 3 [of the MCA]. Having regard to the clear principles in section 1, I accordingly propose to make a declaration that on the basis of the information available at present, I am not satisfied that she lacks capacity to make decisions concerning her medical treatment.”

The judge then continued to consider issues of “Gillick competence”:

“A person with capacity under the age of 18 who is “Gillick competent” – that is to say, having a state of maturity, intelligence and understanding sufficient to enable her to take a decision as to medical treatment for herself – is deemed to have legal capacity to consent to treatment. Where, however, a Gillick competent child refuses to give her consent to the treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in her best interests and give its consent to her treatment.”

 

He concluded:

“The wishes of a young person aged seventeen and a half are important. They are, of course, entitled to be taken into account as part of her Article 8 rights under ECHR. On the other hand, those rights are not absolute. Here, they are outweighed by her rights under Article 2 – everyone’s right to life shall be protected by law. The court is under a positive or operational duty arising from Article 2 to take preventative measures to protect an individual whose life is at risk.”

He therefore declared that “it is lawful and in P’s best interests for the medical practitioners having responsibility for her care and treatment to treat her for the effects of her overdose notwithstanding the fact that she is refusing treatment”.

There are a number of interesting and potentially highly significant conclusions to consider in relation to this judgment.

Here is another case in which a judge has relied on the concept of “inherent jurisdiction” to reach what he considered was the most appropriate decision. Under English common law, a superior court has the jurisdiction to hear any matter that comes before it, and it allows it to control its own processes and to control the procedures before it.

I recently considered a judgment from the Court of Protection in which inherent jurisdiction was invoked in order to reach, in that case, a somewhat extraordinary and legally dubious conclusion.

It does appear that, where existing legislation appears to a judge to be deficient, then “inherent jurisdiction” can be invoked to facilitate whatever judgment a judge wishes to make. I am concerned, especially in this case, that other potential resolutions to the case of P within existing law were not explored.

I am reminded of the case of Kerrie Wooltorton, a woman with a personality disorder who drank antifreeze and then refused life saving treatment. On the basis that she had capacity and had made an advance decision refusing treatment, she was allowed to die, and the subsequent inquest upheld the decisions of the doctors responsible for her care. I considered this case at some length here.

In such cases, where a patient who has capacity is refusing treatment, perhaps consent to treat against the patient’s will can be obtained from the courts regardless of existing legislation, as long as the judge is prepared to invoke the court’s “inherent jurisdiction”.

The judge concluded that P had capacity, and therefore the Mental Capacity Act could not be used. But he did not appear to consider the powers under the Mental Health Act.

The 2007 MHA introduced an amendment: Sec.64G, which covers emergency treatment for patients lacking capacity. This does give powers for people to give emergency treatment, especially if the treatment is to be given in order to save the patient’s life.

However, since P was deemed by both the psychiatrist and the judge to have capacity, this section could not apply.

But, as I pointed out in my blog on Kerrie Wooltorton, the issue of whether or not a patient can be deemed to have capacity is not particularly relevant to a determination regarding detention under the MHA.

For example, in order to legally detain someone under Sec.2, the AMHP merely has to be satisfied that the patient “is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period” and that the patient “ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”

In order to be able to treat P under Sec.2 MHA, it was only necessary to establish that she was suffering from a mental disorder within the meaning of the MHA, and that this was of a nature of degree that warranted her detention for assessment and/or treatment.

Since P had been a patient of CAMHS, and the assessing psychiatrist was satisfied that she had a personality disorder, which is a “mental disorder” within the meaning of the Act, and she undoubtedly needed assessment/treatment, then an AMHP could have made an application using a medical recommendation from the psychiatrist and one from a hospital doctor who was intending to treat her.

It would certainly have avoided the necessity to get a High Court judge out of bed.

Should People Be Stopped From Committing Suicide?

I still remember, during my training as an Approved Social Worker back in 1984, being told that, just because someone wanted to kill themselves, it didn’t necessarily mean that they had a mental disorder or that they ought to be detained under the Mental Health Act. This informed (and at times complicated) the decisions I had to take under the MHA over the years.

I was once asked to assess a man who had been detained under Sec.136 after he had tried to hang himself. He had made a serious attempt. He meant to do it. But when I assessed him in the police station I could find no evidence at all of any mental illness. He was distressed that his wife had left him. He had wanted to show her how her decision to leave him had made him feel. He was likely to make some further attempt on his life. But he wasn’t actually depressed, He was reacting to an adverse life event. My impression was that, even though he presented a significant suicide risk, it would be through petulance rather than mental disorder. I did not feel that I could justify detaining him under the MHA, even for assessment.

He succeeded in killing himself two weeks later.

Fortunately, I had arranged for him to have a medical review. On the day he killed himself, he had been assessed by both a junior doctor and a consultant psychiatrist. They both also concluded that, despite a significant suicide risk, he did not have a mental disorder.

On another occasion I was asked to assess another man who was an informal patient in hospital after having made a suicide attempt. When I assessed him, he presented with a perfectly normal mood and no discernible evidence of depression or other mental disorder. He said that he had had an enjoyable life up until then, but told me matter-of-factly that it would only go downhill from here and he therefore did not see the point of continuing to live. He was 30 years old.

This was a difficult decision. There were two medical recommendations for assessment under Sec.2 MHA, but I was struggling to justify to myself detaining him in the absence of any evidence that I could find of actual mental disorder. In the end, I concluded that, in view of the fact that two doctors were prepared to state that he was “suffering from mental disorder of a nature or degree which warrants the detention of the patient in hospital for assessment”, the safest option was to detain him. This was a case of deciding whether I would rather justify my decision to a Tribunal or an Inquest.

I once worked with a service user who suffered from chronic and disabling osteoarthritis. She was largely confined to her home, needed considerable support with day to day living, and was often in extreme pain. She confided in me one day that she had been studying efficient and painless methods of suicide, and that she had stockpiled a supply of the medication necessary to dispatch her with as little fuss and disturbance as possible. She explained that this was her insurance, that if she considered that her quality of life was so impaired by her condition as to be worthless, then she knew she could quietly and discretely end her life.

I respected this. She had capacity, she had a chronic condition, which although not necessarily life threatening, could at some stage make her life intolerable – and knowing that she had some control over her destiny actually allowed her to keep on. It never crossed my mind to consider the use of the Mental Health Act.

But I have been troubled for some time by the implications of another case which made the headlines a couple of years ago.

Kerrie Wooltorton was 26 when she committed suicide in September 2007. She had swallowed 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. The doctors in charge of her treatment allowed her to die.

Why had they done this? Because three days before she had written what was described in press reports as a “living will” in which she stated that she was “100% aware” of the consequences of her actions and that she did not want to receive treatment.

When I read the reports of the Inquest into this case, which was concluded two years later in September 2009, I was aghast.

It was stated that she had an “incurable emotionally unstable personality disorder”, that she had a long history of self harm (she had taken 9 similar does 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. Nevertheless, despite this history of mental disorder and extensive past use of the Mental Health Act, her renal consultant stated in the Inquest that “she was in no state to resist me and I could have forced treatment on her, but I don't think it was the right thing to do. I feel it would have been assault.” A spokesman for the hospital said: “It is a double-bind for doctors. She was very clear in her wishes. To have forced treatment on her would have been unlawful.”

The coroner concluded: “My judgement is that Kerrie had mental capacity. She had the right to refuse treatment and could not have been treated without her consent. Her decision to refuse treatment was consistent and she never changed her mind. The doctor went over and above what was required of him. He discussed the case with clinical colleagues, took a second opinion from a fellow consultant and sought advice from the medical director. A deliberate decision to die may appear repugnant, but any treatment to have saved Kerrie's life in the absence of her consent would have been unlawful.”

Being an AMHP, I was virtually shouting out as I read this report: “Duh? What about the Mental Health Act? Was an AMHP (or ASW, as 2007 was before the creation of AMHP’s) involved in this decision? Were two Sec.12 approved doctors asked to give an opinion? What about “mental disorder” within the meaning of the Act? And what’s a “living will” when it’s at home?"

After I’d had a lie down, I looked more closely at this case. It appeared to hinge on the issue of capacity and her “living will”. By the time of the Inquest, the Mental Capacity Act had been in force for a couple of years. The issues that this Act brought to bear were blamed for this bizarre decision to allow her to die. An analysis of the case by Professor Sheila A M McLean, a Professor of Law and Ethics in Medicine, published on the BMJ website, assumed that the “living will” was in fact an “advance directive” covered by the Mental Capacity Act. She concentrated on issues of mental competency and concluded that:

“A doctor who imposes treatment in the face of a competent refusal would be guilty of assaulting the patient. However dreadful it must be for healthcare professionals to watch a person who could be saved die for want of available treatment, they have no alternative but to do so… Ms Wooltorton was adult, competent and able at the relevant time to reject treatment. This was her right and, as such, had to be respected.”

However, Stuart Sorensen, writing in Community Care, came to what I would consider to be a more reasonable conclusion. He pointed out that the Mental Capacity Act's Code of Practice “is clear that the Act does not support suicide, assisted dying or mercy killing”. His conclusion was that 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.”

No-one at the time appeared to have considered the dubious legal basis on which Kerrie had written her “living will”. The Government’s own guidance to the implementation of the MCA issued in July 2007 stated that the section of the MCA covering advance decisions would not come into force until 1st October 2007 and that “most advance decisions, refusing life-sustaining treatments, made before October 2007 are unlikely to meet the specific requirements of the Act.” Not only would Kerrie Wooltorton’s advance decision not have complied with the Code of Practice to the MCA, but since it was written and executed in September 2007, it would not have been valid in any case. That in itself should have provided sufficient justification for the hospital to have disregarded her “living will” and to have provided her with treatment.

So what conclusions should an AMHP reach when confronted with a similar situation?

The case of GJ v The Foundation Trust (2009) EWHC 2972 (Fam), although relating to Deprivation of Liberty under the Mental Capacity Act, presents a potentially relevant finding that “the MHA has primacy” over the MCA: that essentially, where both the MHA and the MCA may apply to a case of “detention”, whether through Sec. 2 or 3 of the MHA or Deprivation of Liberty under the MCA, then the MHA should be used. In other words, the MCA could legitimately be disregarded in a case such as Kerrie Wooltorton’s, and an assessment could take place under the MHA with an AMHP and two psychiatrists.

Advance decisions and issues of capacity do not necessarily have much bearing on decisions taken under the MHA, and the concept of “capacity” is not a factor which has to be taken into account when reaching a conclusion about detention under the MHA, providing the other factors were established.

Were such an assessment to take place today, all that the assessment team would need to establish would be:

• Is the patient suffering from mental disorder of a nature or degree which warrants the detention of the patient in hospital for assessment (or assessment and treatment)?
• If so, is it in the interests of the patient’s health or safety? 

I’m fairly sure of the conclusion I would reach were I to be confronted with a case such as Kerrie Wooltortons’ today.