1. Key Knowledge End of Life Year 4 Medical Ethics and Law Thread Course, 2015-16 The Ethox Centre, University of Oxford

2. Medical law and the end of life English law and GMC guidance lay out specific provisions relating to end of life care for patients English law: –Criminal law provisions –Civil law provisions

3. End of life care and the criminal law In end of life care, two foundational concepts in criminal law are crucial –Action~ ‘actus reus’ (guilty act) –Intention~ ‘mens rea’ (guilty mind) 1. ‘Active Euthanasia’ Undertaking an active step with the intention of ending the patient’s life for the patient’s own good is the crime of murder 2. ‘Passive Euthanasia’ Omitting to act (withholding treatment) with the intention of ending the patient’s life for the patient’s own good is not necessarily unlawful. –Relevant issue is negligence: was the decision to withhold treatment consistent with the relevant standard of care in that treatment setting?

4. End of life care and the criminal law 3.Withdrawing treatment is legally equivalent to withholding treatment –When a doctor withdraws life-sustaining treatment, she is not acting. She is omitting to act. As such, even if the doctor intends to end the patient’s life, this is not the crime of murder –Doctors were the group advocating strongly for this legal position. Why was this?

5. End of life care and the criminal law 4.Taking an active step with the intention of relieving a patient’s distress, foreseeing (but not intending) that this intervention will shorten the patient’s life, is not necessarily unlawful –Providing a patient with a large dose of morphine intending to relieve suffering, but foreseeing that the dose required to relieve distress will impact on respiratory function in a way that will hasten death, is not murder –The law recognises a crucial distinction between i) intending death and ii) foreseeing death but not intending it. –How will the doctor’s intention be examined in court?

6. End of life care and the criminal law 5.Taking an active step to assist a patient to commit suicide is the crime of assisting suicide –Suicide Act 1961: decriminalised suicide but not assisting suicide –There will be important questions about a doctor’s intention. Consider a doctor who prescribes tablets that a patient then uses to take an overdose –A doctor might still be liable in negligence, even if it is not proven that she intended to assist a patient to commit suicide

7. End of life care and the criminal law 5.(continued) –In the recent 2009 case of Purdy, the circumstances in which a person might be prosecuted for assisting suicide were clarified. Doctors are automatically at heightened suspicion in this guidance –A blanket legal ban on assisting suicide is believed to raise human rights concerns, particularly when a person is unable to end her own life due to physical impairments. This position was tested in the 2014 Nicklinson case. A majority 7-2 judgement in the Supreme Court concluded that the offence of assisting suicide was not incompatible with Article 8 of the Human Rights Act 1998 –A 2015 attempt to legalise assisted dying in certain limited circumstances failed to get sufficient votes in Parliament

8. End of life care and the criminal law 6.A competent patient who refuses life-saving treatment is not committing suicide –And, therefore, a doctor who withholds or withdraws life-saving treatment from a competent patient is not committing the crime of assisting suicide 7.The Mental Capacity Act 2005 introduces two new criminal offences: the “ill treatment” and “wilful neglect” of an adult lacking capacity –Prosecutions for these offences have been increasing year on year

9. End of life care and the civil law Do Not Attempt Resuscitation (DNAR / DNACPR / ’Allow Natural Death’) orders are advanced management plans for end of life care Whilst good practice in DNAR is laid out in professional guidance, these plans are underpinned by the MCA framework 1.A valid and applicable advance decision to refuse treatment (under the MCA) made by the patient. Attempting resuscitation in such a case would be battery –Advanced refusals must be valid and applicable –There are significant ethical challenges in assessing the justification of these refusals

10. Ethical Puzzles Surrounding Ulysses Contracts A Ulysses contract is a freely made decision designed to bind oneself in the future. But… are you the same person in the future? If your values and preferences change over time, should family members follow your prior wishes, or your current wishes? Studies in cognitive psychology show that –We are poor predictors of our future values in altered states. –“I would never want to live if paralysed” –However, resilience and adaptation commonly follow disability: self- perception of quality of life returns to levels similar to that before the accident

11. End of life care and the civil law 2.A purely clinical decision (without advanced refusal from the patient) based on the best interests of a patient lacking capacity –Note: As legal best interest judgements are time- and decision-specific, a DNAR order can only be formally implemented at the time of arrest. –Key question: have there been relevant changes in the patient’s condition since it was decided that the patient was not for resuscitation? –How to assess a patient’s legal ‘best interests’ in order to legitimate the use of this kind of DNAR?

12. An ethical quandary: Respecting Persons vs. the ‘Best Interest’ Standard 1.Respecting persons: A surrogate ought to make a substituted judgment for a family member based on known preferences/values of the patient –“What would my Mum have likely wanted, given her values and preferences?” –Not: “What I think is best for Mum” in light of my values as her surrogate decision maker. –What to do when there’s no surrogate and you don’t know the patient’s wishes? 2.The patient’s best interests –A purely medical professional judgment account of best interests? –What reasonable people in similar situations would likely want? There is debate about the nature of both standards and how they ought to be prioritised against each other

13. DNAR and the GMC GMC Guidance: –Equal treatment principle –Presumption in favour of prolonging life –But… use of clinical judgement to ascertain the appropriate options, and whether CPR and further treatment are likely to lead to no overall benefit –Consult with relatives, carers etc. (as required by the MCA) to ascertain all information relevant to the decision –NOTE: no patient or carer can demand that treatment be imposed when it is judged to be of no clinical benefit

14. Planning good care at the end of life The emphasis in the GMC Guidelines endorses the need to plan carefully, in advance and in multi-disciplinary ways, to ensure that a person receives safe, effective care that is delivered in a continuous fashion and aligned with the person’s wishes to the greatest extent possible Advance Care Planning (ACP): Initiate conversations with the patient early on to discuss planning of end of life care –Produce an Advance Care Plan to record the discussion and codify the decisions made

15. Planning good care at the end of life Care at the very end of life –The aim is to manage palliative care at the very end of life (when a person is believed to be within hours or days of death) – bringing hospice practices into hospitals –Managed usually through a pathway (until recently, the Liverpool Care Pathway for Dying Patients – LCP) –Concern: the LCP hastened death through the over-prescription of painkillers and withdrawal of ANH. People placed on it without consent of patient or agreement of the family –Review of the LCP: communication often poor, but the pathway ensured a comfortable, dignified, pain-free death. –Replaced by personalised end of life care plans based on 5 principles…

16. Planning good care at the end of life 1.The possibility that a person may die within the next few days or hours is recognised and communicated clearly, decisions made and actions taken in accordance with the person’s needs and wishes, and these are regularly reviewed and decisions revised accordingly. 2.Sensitive communication takes place between staff and the person who is dying and those identified as important to them. 3.The dying person and those identified as important to them are involved in decisions about treatment and care to the extent that the dying person wants. 4.The needs of families and others identified as important to the dying person are actively explored, respected and met as far as possible. 5.An individual plan of care, which includes food and drink, symptom control and psychological, social and spiritual support, is agreed, coordinated and delivered with compassion.

17. The ethics and law of end of life care in practice: The case of Dr Cox We will now turn to the real-world challenges that can arise in making decisions about end of life care for patients Dr Nigel Cox remains the only doctor to have ever been convicted in the UK of attempting to perform ’mercy killing’ (active euthanasia) Can his actions be defended? Putting the law under the ethical spotlight…