I actually sort of like the idea in Soylent Green:
Where Charlton Heston’s Book goes into a nice, clean building with kind, soft-spoken attendants, is taken to a quiet room where he is given a cup, and allowed to watch beautiful scenes of nature while listening to peaceful classical music as he calmly passes
See! This is what we will have happening here if we allow Death Panels!
With respect to the OP’s matter, I expect that whatever the doctors might have chosen to do or to not do, the coroner would support their decision. The note setting out the directions was quite coherent, but at the same time, given Kerrie’s age and general health, it doesn’t take a great mental leap to reasonably conclude that she was either off her nut or depressed to the point of being suicidal. I can’t see a coroner hammering doctors faced with such a decision, regardless of which way the doctors decided. If I were consulted by a doctor facing this, I would have said go ahead and do your best at trying to save her, based on her not having been of sufficient capacity when she wrote the note – a conclusion that differs from that of the coroner. Heck, where I am (Ontari-ari-ari-o, which has health care consent legislation very similar to England’s) we lock up folks and put them through psychiatric assessments if they appear to be at risk of harming themselves or others, and certainly trying to kill oneself without good reason fits the bill.
Where I am, the physician must not treat a patient without proper consent, unless it is an emergency in which consent cannot be obtained (essentially the same as the Mental Capacity Act in England), or the person does not have the capacity to give or refuse consent. The question then is did Kerrie have capacity when she wrote her directions? If she did, then the doctors would not be permitted to treat her. If she did not, then the doctors would be permitted to treat her. This raises an interesting question: how does a doctor differentiate between valid directions made by a person of appropriate mental capacity, and a typical suicide note made by a person without appropriate mental capacity?
What is a doctor to do if an unconscious person shows up with written directions that may really just a suicide note in disguise? That would depend on the situation, but in any event, doctors are not lawyers, doctors do not have the luxury of time to delve into the historical making of directions, and doctors are hamstrung between what a patient wants and what the law permits. Any decent coroner would take this into consideration.
The usual procedure around here is that if the doctor has any reason at all to believe that the directions were not properly made with appropriate capacity, then the doctor will treat the unconscious person. Thus the “Let me die. Kerrie” folks wake up only find themselves committed for a psychiatric evaluation to determine if they are a danger to themselves or others, whereas folks who have carefully drafted directions (i.e. Power for Attorney for Personal Care / Living Will, or some sort of written directions that clearly establish the person’s capacity and intent in certain circumstances, e.g. on their last legs) find those direction respected by doctors.
When faced with this, sometimes doctors call lawyers for opinions. Once a doctor calls me for an opinion, it greatly reduces the odds of the doctor being nailed in a lawsuit, for the doctor can then simply say, I spoke with a Muffin and followed its advice concerning whether the directions met with the Health Care Consent Act. In a very brief phone call, I look at things such as do the circumstances suggest mental illness? Is there any history in the hospital’s database indicative of mental illness? Are there any immediately available close relatives who say the person suffers from mental illness? Was the person old enough to give directions? Did the directions really anticipate the circumstances at hand? Was there any sort of attestation to the person’s mental capacity made by a third party at the time the directions were made? Calling a lawyer for an opinion is not a particularly strong defence to allegations that treatment was improperly given or improperly withheld, but it is one heck of a lot better than nothing. I have never dealt with one of these attempted suicide matters without finding something that brings reasonable doubt into the validity of the directions, and so far, there has never been any blow back, but never say never. I look forward to the law catching up to this problem, so as to protect doctors when they are faced with impossible decisions.
Apart from the professional aspect, on a personal level, I have to say that attempted suicides who deliberately go to doctors not to be treated are so full of shit that they should eviscerate. I am all for assisted suicide within a carefully controlled system of checks and balances, and I am sorry that we do not have it yet either here or in England, but that is no excuse for what Kerrie did to the doctors.
Here is a thread from GQ I posted a while back asking about this very subject.
Feel free to consider its responses here too, though it, being in GQ, is mostly about factual law data in America.
My take was that she didn’t want to lose consciousness and be discovered by someone who would get her to life-saving treatment without her having a chance to refuse it.
I dunno makes sense to me:
Maybe she was heading off someone finding her and rescuing her and then having to live in some sort of debilitated state? Regardless, the body has to be disposed of, and isn’t it usually an ambulance that does that anyway?
I don’t see what the big deal is.
If someone is clearly dead, a funeral home can take the body. Ambulance not required, at least not in the US. My understanding is that this occurred in the UK.
My mother died at home at her own request and the hospice told us specifically do NOT call an ambulance. Two people came from the crematorium to pick her up.
I think what disturbs me most about this is that the young woman in question had a history of drinking anti-freeze, and not that long ago we had a poster from the UK who had a history of drinking anti-freeze. I’m really hoping they aren’t the same person.
They should put them right beside a Howard Johnson’s.
Not sure doctors, faced with a life or death situation that requires immediate attention, have the luxury of calling their attorney for a legal opinion. Even if they did call Attorney Muffin would Attorney Muffin be ok with rendering a legal opinion in moments rather than after proper research? An opinion that while covering the doctor may get Attorney Muffin in deep doo doo if they give improper legal advice?
No, the doctor does not have the luxury of time, but bear in mind that if the doctor is standing there with a dying person who has left valid directions to let the person die, then the doctor is prohibited from treating the person (at least that’s the law in Ontario). The time spent consulting with more senior doctors or myself is time that otherwise would not be spent not treating the patient anyway.
Of course I would be in deep doo doo if I gave improper legal advice, but since I already know the law on consent in my jurisdiction, I have no difficulty forming an opinion without having to go out and do fresh legal research (if I didn’t know the law, then I would not give an opinoin and instead would refer the doctor to someone who did). As long as I stay up to speed with the changes in the law, and do a good job at getting the facts of the situation out of the doctor, I have enough information to form a good decision.
There is always a risk in giving an opinion, but that’s what a lot of the job is about. Taking more time and digging deeper and deeper into judicial decisions is not the way to go about making a good decision. The way to a good decision is to already know the law (have the homework done before the test), know what sort of facts to look for, and then perform the analysis. That takes very little time.
That should read “time that otherwise would not be spent treating the patient anyway.”
I’m wondering if doctors have ever disregarded a living will and ended up being sued for not letting someone die.
Well, I think part of the issue here is the law has not really addressed it. At least to my knowledge this is a first.
The patient has a Living Will telling doctors to leave them alone. However, as I noted above, a Living Will, at least in the US, would not seem to cover suicide.
More interesting, and what I was hoping to get at in the OP, is whether a person attempting suicide can refuse help. Can they be considered in their right mind to enter a legally binding contract? Do they have a right to life (and how to end that life) that trumps other considerations? Are doctors ethically bound in such a situation to render aid? What is the person attempting suicide refuses care as a religious matter (i.e. their religion forbids medical care) then does that change the equation?
Wrongful prolongation of life suits have been brought:
http://www.thedoctorwillseeyounow.com/articles/bioethics/proglife_9/
Thanks, gigi. Interesting article.
Status Quo
Well let’s have a look at what is fairly typical in US states, Canadian provinces, and England. For the most part (but certainly not universally, as will be set out following):
[ul]
[li]medical treatment can not be made against a patient’s direction if that direction was made when the patient had appropriate capacity,[/li][li]a person is presumed to have appropriate capacity unless shown otherwise,[/li][li]non-emergency treatment requires permission made with appropriate capacity,[/li][li]a presumption of lack of capacity goes with attempted suicide, and[/li][li]assisted suicide is not permitted.[/li][/ul]
That set of constraints has got us as far as doctors being required to let people die if those people made that decision when they had appropriate mental capacity. Thus the living will, also known as the power of attorney for personal care.
What does not come out in the legislation is that the status quo was based on terminally ill people being permitted to die despite medical treatment possibly being able to prolong their lives. The context was not one of a person deliberately taking an action to kill himself or herself, but rather was one of a person deliberately not taking an action to artificially extend his or her life (e.g. a terminally ill patient, or an otherwise healthy person who opposes a certain treatment for good reason, such as a religious prohibition).
Advances in the Law of Assisted Suicide
In general, we are on the cusp of legalizing assisted suicide.
Assisted suicide is legal in Oregon http://www.oregon.gov/DHS/ph/pas/ors.shtml and in Washington Chapter 70.245 RCW: THE WASHINGTON DEATH WITH DIGNITY ACT .
A decision permitting assisted suicide is under appeal in Montana http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/sll_fn_home.htm .
(Oddly enough, George W. Bush signed a Texas euthanasia law that lets health care facility committees – death committees – pull the plug on terminal patients who are being kept alive by artificial means even if directions were given requesting such treatment HEALTH AND SAFETY CODE CHAPTER 166. ADVANCE DIRECTIVES .)
An assisted suicide bill in California was not passed into law, however, California now has a law that gives a right to full disclosure and counseling on end of life options (e.g. right to refuse treatment, etc. http://www.compassionandchoicesnca.org/advocacy.php .)
I believe that in Europe, both assisted suicide and euthanasia is permitted in the Netherlands, and Belgium, while Switzerland permits assisted suicide but not euthanasia, but don’t quote me on this.
Although the law in general moving toward assisted suicide, in most jurisdictions it is not there yet.
What Suicide may be Assisted?
Note that for an assisted suicide (at least as it exists in Oregon and Washington), the patient must be terminal and have appropriate capacity to make the decision to die. This advance in the law simply starts with the status quo of a terminal but sane person being permitted to refuse treatment so as to die, and extends it to a terminal but sane person being able to get a helping hand from a doctor so as to die.
If a person is not terminal, then the person is not eligible for assisted suicide.
If a person is not of appropriate mental capacity when giving directions, then the person is not eligible for assisted suicide.
In short, assisted suicide is not suicide on demand for anyone who asks. It is only available if the person is both terminal and of appropriate mental capacity at the time of the making of the direction.
Refusal of Medical Care
As you can see from the above, the decision to die either with or without assistance under the status quo is not respected if the person is not of appropriate mental capacity when making the decision to die.
Since there is a presumption of a lack of mental capacity tied to attempted suicide, the direction to permit death is not respected. If, however, the person demonstrated that he or she was of appropriate capacity, then the direction to permit death is respected.
The English Lady
Now we come to the matter of the English lady who was young and in good physical health, but who left very clear directions stating that she wanted to die.
Start with the presumption in law that an attempted suicide lacks capacity to make valid directions. Is there something in the circumstances that indicates that despite this presumption, she was in fact of appropriate mental capacity to make those instructions?
The coroner found that the lady’s suicide note demonstrated that she was of appropriate mental capacity when she wrote it.
Let’s look a little closer at this decision. Coherent writing does not necessarily indicate sound mental capacity (as anyone who has been about the SDMB for any period of time will have seen). Apart from being clearly written, the note did not set out any rational reasons for wanting to die that a person of sound mind would consider reasonable (e.g. terminal illness).
I am of the opinion that the note not providing a rational explanation, combined with the lady being young and healthy, failed to overcome the presumption of lack of capacity tied to attempted suicide, and therefore had the doctors treated her, they would not be subject to the prohibition against treatment made contrary to a direction made with appropriate capacity. (After the fact, it was learned that indeed she was depressed and wanted to die because she could not have a child. Had the doctors known that at the time, they could not have reasonably taken her instructions as having been made with appropriate mental capacity.)
The doctors were in a terrible position of having to decide if the patient had been of appropriate capacity when she wrote her note, and knew that if they treated her contrary to directions made with appropriate capacity, then they would be in very serious trouble. The note was coherent, so they did not act. Now put yourself in the position of the coroner (whom I assume was also a doctor). Would you find fault with the doctors in that situation? The way to avoid destroying the careers of the doctors was for the coroner to find that the lady had appropriate capacity when she wrote her note. Sometimes the wrong decision in law is the right decision for the lives being affected.
Where Does the Coroner’s Decision Lead?
I expect that the coroner’s decision will not lead anywhere. Coroners’ decisions do not set precedents that courts must follow. To the degree that the coroner’s decision might be considered, I expect that the reasons I set out above would be used to distinguish it, such that it would not be used to support a shift in the law that removes the need to have appropriate mental capacity when making directions.
What it comes down to, is that the law is that there must be appropriate capacity when directions are made. The coroner’s decision was a finding in fact that there had been appropriate capacity. That is not a change in the law.
Just out of curiosity, here is the clause that I use in living wills / powers of attorney for personal care here in Ontario where assisted suicide is not legal.
*If at such a time a situation should arise in which there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by medications, artificial means or “heroic measures”. I do ask, however, that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life. *Play with the clause. Think about what circumstances it would cover, and what circumstances it would not cover. Is it flexible enough to cover a wide range of circumstances, or is it too vague?
I’ve tried to extend the “gotta be terminal” standard to include a range of circumstances in which life would not be worth living, but not necessarily terminal. I’ve also tried to open up the possibility of something close to, but not quite assisted suicide, by way of pain medication. Terms similar to this are very common in jurisdictions like mine in which assisted suicide is not permitted.
Unfortunately, no general clauses can address all possible fact situations, so statute law or judicial decisions will still have to try to clarify what should be done in very odd circumstances.
On a similar note, whatever direction the law goes, it will never be able to satisfy everyone. That’s the nature of the beast.
(I have a pact with a friend for him to put me in a canoe and send me off Niagara Falls when I start to get dotty – we think that a particular line on the left side of Horseshoe might be survivable. Somehow I don’t think the law will ever get to the point of permitting that sort of assisted suicide. So much for being able to chose a creative way of going.)
Muffin, thanks for all the detailed information. One question, is the “presumption of lack of capacity goes with attempted suicide” enshrined in English law. Reading the coverage of this case does not suggest the Coroner (or the Consultant at the hospital) believed this to be the case.
By the way, the Coroner was a lawyer: William Armstrong LL.B., PG Dip MHL, LL.M., Solicitor of the Supreme Court. H.M. Coroner Greater Norfolk
Nice job, Muffin!
If this woman had shown up in my office after ingesting antifreeze, I’d have treated her. For those basic reasons; her actions showed her lack of capacity to make sound judgement.
I have to agree. I wonder why she called the ambulance in the first place. Perhaps only so her loved ones wouldn’t be the ones to find her, but still it’s awfully cruel to the paramedic and hospital staff.