It’s a pleasure to host this carefully argued guest post by solicitor and social worker Allan Norman on two important Court of Protection rulings on the ‘right to die’. Allan takes up issues around the presumption of capacity, personal autonomy, quality v quantity of life, and the controversial question of whether resources should have a bearing on these decisions. If anybody would like to respond to Allan’s arguments or arguments elsewhere on these cases, please use the comments below or get in touch if you’d like to write a guest post.
Thou shalt not kill, but need not strive
Officiously to keep alive
– from The Latest Decalogue, by Arthur Hugh Clough
A British Medical Journal editorial last month argued, ‘Sanctity of life law has gone too far‘. The Emeritus Professor of Medical Ethics, Raanan Gillon was specifically critiquing a judgement of the Court of Protection last year, W v M and Others  EWHC 2443 (COP) (28 September 2011). That case held, notwithstanding the previously expressed wishes of the person concerned, who was in a minimally conscious state, that it was in their best interests to be kept alive, and that it was properly a matter for the court to decide. Gillon’s editorial criticises the approach taken to best interests that overrides express wishes, the requirement to involve the court in best interests decision making, and the resource implications. The editorial has itself been criticised, as the UK Human Rights Blog has highlighted, as a call to “dehydrate dementia patients to save money”. And that critique of Gillon resonates with another recent media story from another prominent health professor about the Liverpool Care Pathway, ‘Elderly patients ‘helped to die to free up beds’, warns doctor‘. With raw nerve criticisms like that, I am staking a lot when I defend Gillon’s arguments, as I do here.
In June, the Court of Protection ruled in the case of Re E (Medical treatment: Anorexia) (Rev 1)  EWHC 1639 (COP) (15 June 2012). So clearly did Gillon’s arguments seem to chime with that case, that it took a while to appreciate it was another case in issue, despite the timing of publication. Another case where express wishes were held to have been inadequately articulated. Another case where best interests were held to require being kept alive. Here, I argue that Professor Gillon’s arguments might equally apply to E’s case.
Specifically, I criticise the decision in Re E for:
- misapplying the presumption of capacity;
- getting the balance between life and autonomy wrong; and
- distorting healthcare priorities
“A person must be assumed to have capacity unless it is established that he lacks capacity.” These are the opening words of the Mental Capacity Act. A presumption in law serves at least two purposes. It sets out the starting point, which will prevail unless adequately rebutted; and it provides a way of deciding issues where the evidence does not point conclusively in either direction.
The judge in this case had to dispose of two attempts at advance decisions, as well as current capacity. The judge observes that,
In relation to the first advance decision, a doctor expressed the view, with reference to the Act, that she had capacity. The next day, her wishes were written down, signed and countersigned. A few days later, she was sectioned. Over the coming months, she took steps to:
I cannot help but conclude that in E’s case, the presumption of mental capacity, despite being specifically stated, appears to have gone by the wayside. The judge appears to have done mental gymnastics. Everything was done by the book, in fulfillment of the goal to which E had been working. So, in the absence of evidence that she lacked capacity, why was she not assumed to have capacity, in accordance with section 1? The answer is to be found in the extract from paragraph 55 above: the judge has reversed the statutory presumption in relation to life-sustaining treatment, effectively re-writing the law for E’s case.
That is not good law. I can well understand that where life or death is in issue, getting it right matters more than in mundane matters. Hence we might to good effect borrow a legal test like “anxious scrutiny” and apply it to the test. But anxious scrutiny would have surely revealed that here there was enough to reassure the judge that there was no basis to displace the statutory presumption. Rewriting the statutory presumption was not called for.
Nonetheless, the judge also has to dispose of current capacity. What concerns me here is that no-one seems to have put forward to the court a case that E had capacity. I have argued elsewhere that we are developing two models of advocacy, which I have termed mimetic and analytic advocacy. The former tries, so far as possible, to detect, amplify and reproduce the authentic voice of the person concerned. The latter is concerned with representing the interests of the person concerned; as with advocacy based on best interests. The results of the two models need not differ, but in this instance they do, and It is a potential problem of the Court of Protection that all the parties can be too taken up with the second model, and overlook the first. But surely the issue of capacity was never something for the parties to agree? Surely the presumption of capacity taken together with the mimetic model of advocacy required someone to inject into the proceedings E’s own voice. The judge dismisses her own voice in the advance decisions with reference to an inadequately formalised capacity assessment; but then finds her to currently lack capacity without the benefit of a formalised capacity assessment. Sauce for the goose?
In fact, the reasoning comes perilously close to saying, “anorexics lack capacity”, and her parents complain as much. Which, of course, breaches another fundamental principle of the Act, that capacity decisions are individualised, decision and time specific decisions:
The displacement of express wishes by best interests
E’s case is one of a number in which three findings come together. And in every case where these three findings come together my heart sinks:
- A clearly articulated express wish;
- A capacity decision that is based on weighing the alternatives;
- A best interests decision that conflicts with the express wish.
I have already observed that the parties were arguing about best interests, a point they could not have arrived at without displacing capacity. But there are other pointers towards this kind of reasoning. In particular, it is clear, because it is so memorably and repeatably articulated, that this judge does indeed elevate being alive to a high place – that is, the bare fact of being alive rather than the quality of life: “We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know.” [paragraph 137]
Moreover, it is also clear that this was central to the ratio of the decision: “In the end,” said the judge, “the presumption in favour of the preservation of life is not displaced.” [paragraph 140]. What is significant in that sentence is the reference to preservation of life. My starting point, or in law my rebuttable presumption, says the judge, is that I should make decisions that should keep people alive.
Professor Gillon prays in aid no less a name that Hippocrates on the comparative value of being alive and quality of life:
I think it is worth pausing to grasp Gillon’s point here. There will doubtless be kneejerk responses to what I am saying, that the purpose of healthcare is to keep us alive. But is it? Is not the fundamental purpose of healthcare to care for the sick? I think three things have conspired to cause us to believe that the purpose of healthcare might be to keep us alive:
- Free healthcare – since the advent of the NHS, we have not had to worry about the cost of care. If we were paying, I expect most of us would want to be restored to health; and I expect most of us would want to be relieved of suffering. But if you reflect for a moment on the anguished objections of people to paying for social care when this involves using up their inheritance, how would we feel about indefinite life support at our own or our family’s expense? The fact that it is not at our own expense enables us to think differently about healthcare which will never restore to health;
- Attitudes to death – most organised religion seeks a negative answer to whether death is the end, but organised religion is in decline in the western world, which also largely seeks to hide or disguise the fact of death. Therefore, as the judge says, the difference between life and death is the biggest difference we know; but it is also one we fear and want to be protected from;
- Advances in medicine – alongside free healthcare and changing attitudes to death, scientific advances have made indefinite or prolonged life support possible. Which brings us to Gillon’s point above. Historically, there was no difference between restoring people to health and keeping them alive, so that asking which of the two was the purpose of healthcare made no sense. Now that we can achieve the latter without the former, we really ought to be asking the question.
The stringent conditions in the Mental Capacity Act for an advance decision to refuse life prolonging treatment relate to a person’s right to make that decision binding in law. But the act does not say that, unless those legal conditions are met, a person’s ordinarily expressed views about being kept alive should be given little weight when others determine that person’s best interests after he or she is permanently incapacitated.
It was not enough for Gillon to question the imperative to keep people alive. He also did so with reference to the resource implications. And again, I cannot help but observe that the resource implications loomed large in E’s case. Indeed, the promise of additional state resources was critical to the judge’s reasoning:
Now, are we entitled to apply a cost benefit analysis, weighing the value of E’s life on a set of scales, with the lives that could be saved or enhanced by equivalent resources on the other side?
Three observations: one about litigation, one about the nature of rights, and one about moral philosophy.
The litigation observation is simply this. A lawyer’s interests to act in the best interests of their client precludes the lawyer from subjugating their client’s interests to those of wider society – understandably. Likewise, judges will emphasise that they must decide the case in front of them, and frequently, the question of where the resources come from is none of their business. It is therefore at least worthy of note that while the judge does not explicitly weigh the cost of his decision, he does explicitly say that he would have decided differently had resources not been guaranteed.
The observation about the nature of rights draws on Professor Brown’s wider critique of the notion of human rights,
Applied here, if E does have a right to the resources which have been committed, that may well not be in the wider public interest; if the judge is entitled to decide the case with reference to the wider public interest, that suggests E does not have a right to the resources.
And moral philosophy. 25 years ago as a student, one of the books that most influenced me wasJonathan Glover’s ‘Causing Death and Saving Lives’ (the link is to his own succinct summary of that great work). Glover argued cogently for a consistent moral philosophy that addresses all forms of death-causing and death-allowing. Glover notes that many of our instinctive approaches to questions of death-causing and death-allowing had no particular moral consistency. He devotes a whole chapter to the question of numbers. We will instinctively favour saving one real life rather than many hypothetical or statistical lives. We will instinctively favour saving a life to which we are close over a life from which we are remote. We will instinctively want active intervention for an immediately threatened life, but cope with not doing anything to save the life that is not immediately threatened… But why? What his book shows is how hard it is to frame these instincts within a consistent moral philosophy concerning the value of human life.
To end where we started, Professor Gillon’s critique – the part that prompted the emotive response about dehydrating dementia patients to save money – reads
E is not a dementia patient. But she is someone “whose families and friends believe they would not have wanted such treatment.” The judge specifically records,
Dehydrating patients to save money is emotive language which in my assessment also misrepresents the reality on the ground.
In E’s case, the judge’s affording of greater weight to life over quality of life means that E will forego a “dignified…imminent and relatively peaceful death”. It was possible to afford dignity to E and respect her autonomy and provide “indisputably beneficial treatments to people who do want them”. This was not an either-or case. It was a both-and case.
Professor Gillon’s maxim could apply again: “Unless this judgment is overturned or modified by a higher court it will gradually and detrimentally distort healthcare provision, healthcare values, and common sense.”