Scenario Involving A One Sarah, An 86 Year Old Retired Nurse Who Refuses Medical Treatment For A Serious Life-Threatening Medical Condition

Scenario Involving A One Sarah, An 86 Year Old Retired Nurse Who Refuses Medical Treatment For A Serious Life-Threatening Medical Condition

Introduction

This essay discusses the legal and ethical issues arising from a scenario where Sarah, aged 86 who is a retired nurse has refused to undergo invasive medical treatment for a condition that is likely to lead to death. Having inquired and been informed of what the procedure will entail, she instead requested for only palliative care. According to the facts, Sarah’s pain was at point 6 on the Trust pain score. Most importantly, the facts are state that “Morphine 10mgs IV was keeping Sarah pain free; this was being given every 4 – 6 hours.” Impliedly Sarah’s mental capacity to consent or decline treatment is not vitiated by the pain she was previously feeling. She is competent and clear about her decision. However, family members disagree and think she is incompetent. Several human rights, legal and ethical issues arise and are discussed with reference to the Human Rights Act 1998 and the Mental Capacity Act 2005. The Human Rights Act 1998 made rights guaranteed by the European Convention on Human Rights (hereafter ‘ECHR’) enforceable in United Kingdom courts.

It is submitted that the scenario raises three human rights issues. Firstly is the right to life enshrined in Article 2 of the European Convention on Human Rights. It is open for the family members to argue that letting Sarah to die will violate her right to life (Pretty v United Kingdom [2002]).Sarah however, cannot argue that she has a right to die. Such an assertion was rejected by the European Court of Human Rights (Pretty v United Kingdom [2002]). Nevertheless, one has a right to reject medical treatment. Secondly, article 3 ECHR that forbids inhuman and degrading treatment could be invoked. If treated despite her refusal of treatment, Sarah may sue for violation of right not to be subjected to inhuman and degrading treatment (Herring, J, 2010, p. 146; R (N) v Dr. M., A Health authority Trust and Dr. O [2002].This right was also affirmed in the case of Trust A, Trust B v H (an Adult Patient) (Represented by her Litigation Friend, the Official Solicitor. As explained by the Court of Appeal, it is consent that gives a medical professional the legal ‘flak jacket’ or defence to a legal action against them (Herring, J, 2010; Re W [1992]). However, the family members could paternalistically argue that failure to treat Sarah and leaving her to die would violate article 8 of the European Convention on Human Rights which guarantees their right to family life (G v E (2010)); Paton v United Kingdom). However, as decided in Pretty’s case, Sarah’s rights will have to be respected however irrational they may be.Sarah’s choice to have palliative care and be transferred to a hospice to die is also arguable. It raises an issue of whether she has a right to make this choice.Court has held that the right to life does not mean that a patient is entitled to make a choice of the treatment they would like(R. (on the application of Burke) v General Medical Council [2005] para. 31). The NHS just like any other health care system has resource constraints and is not in position to give specific treatment to particular patients. Further, Sarah’s right to private life guaranteed by article 8 ECHR could also be engaged. The recommended treatment would be invasive and if given without her consent would be a breach of her privacy as affirmed by Evans v UK (2007). It is therefore submitted that the healthcare professionals should not act against Sarah’s wishes.

A central issue is whether Sarah had the right to refuse medical treatment. It is a fundamental principle of law that before treating a competent adult patient like Sarah, consent should be obtained (Herring, J, 2010, p. 146; McHale J. and Fox, M, 2007, p. 360; Jackson, E, 2010, p. 167). This had been recognised as early as 1767 in the case of Slater v Baker and Stapleton. Even before the enactment of the Human Rights Act, Lord Scarman in 1985 stated to the effect that a patient had a ‘basic human right’ to make her own medical decisions (Jackson, 2010, p. 182). In 1914 an American Judge, Cardozo, J had stated that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body…”(Schloendorff v New York Hospital cited in Jackson, E. 2010, at p. 216-217.). An extreme statement of this rule is that competent adult patients have the right to make irrational and life-threatening decisions to refuse medical treatment (Jackson, E., 2010, p. 221; case). The General Medical Council in England has advised its members along same lines (British Medical Association, 2007, para. 25.5). The rule is based on the cardinal principle of patient autonomy and the right to self determination (Herring, J, p. 147; McHale, J, et al, 2007, 354-350). Applying the law to this scenario, it is emphatically submitted that Sarah had the right to make the decision.

Having resolved the question of whether she had the right to make the decision, the next important question is whether she had the mental capacity to do so and whether she did so in the right way.A patient can only exercise the right to consent to or refuse medical treatment if they have the capacity or competence to do so (Re F [1990]). While it is the law that everyone is presumed to have capacity unless it is established to the contrary (section 2(1) Mental Capacity Act 2005), the presumption of capacity to consent or refuse treatment is rebuttable. This is where other parties such as the healthcare professionals and family members may be involved. Nevertheless, it should be emphasised that even if the patient were incompetent, it does not follow that the family members can make the decision on her behalf (Herring, J, 2010, p. 150). To resolve the capacity issue, it is imperative to determine what legally is meant by lack of capacity. According to section 2(1) of the Mental Capacity Act 2005, which (Act) codified and improved on the common law rules governing consent, “a person lacks capacity in relation to a matter “if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. Though not expressly stipulated, the Mental Capacity Act presumption is with respect to adults who are over the age of 16 (Jackson, E., 2010; Johnston and Liddle, 2007, 94-97, at. 94). Owing to the presumption of capacity that applies to every adult including Sarah, it will be up to the dissenting family members prove that she is incapacitated. On the facts, Sarah was capable of comprehending and retaining, weighing and communicating a decision (Re C (refusal of Medical Treatment) [1994]; Mason, et al, 2011). In case there is reason for doubt, capacity has to be assessed again.

Arguably, the family members’ could rely on the fact that Sarah’s ailment is causing pain which may have rendered her temporarily incompetent to consent (section 2(2) of the Mental Capacity Act). Even according to the Mental Capacity Act Code of Practice (paragraphs 4.26) acute illness, severe pain or the effect of medication may affect someone’s ability to make decisions. The reply to this however is that since Sarah is being kept “pain-free” capacity is not affected. It is my contention that this reply would seriously weaken or even defeat the family members’ argument. Sarah’s advanced age cannot be used to imply incapacity. To do so would be contrary section 2(3) of the Mental Capacity Act 2005 (Jackson, E, 2010, p. 233).The family members’ argument may therefore fail.

All the available evidence suggests that Sarah was competent to decide. The burden will therefore be on the family to show that this was not the case. Sarah raised questions for the doctor to answer, got the answers and then made her decision which she communicated. She even anticipated that her family would not agree with her and prepared to explain to them. Arguably, she exceeded the standards of retention mentioned in section 3(3) of the Mental Capacity Act since her retention was more than temporary. She fully understood the nature and purpose of the recommended surgery (F v W. Berkshire HA, per Lord Brandon, [1989] 2 All ER 545). The family is thus most likely not to satisfy the burden of proving as required in the cases of Re MB (An Adult: Medical Treatment(1997)) and Re C (Adult: Refusal of Treatment).

Alternatively family members could argue that Sarah did not give ‘informed consent’ as required by English law (Jackson, 2010). However, considering that she is a retired nurse and that she asked and information was given, this ground of attack may not be accepted by the court. The specific questions she raised support the fact that she understood what was explained and hence her consent was from an informed point of view. Nevertheless, it could be argued that she did not get sufficient information. This is because she did not actually get a reply to the question of Intensive Care Unit. The doctor replied that this would depend on the anaesthetists. There is no evidence that their opinion was given to Sarah as required by Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1985] (also Jackson, 2010; Montgommery, 2003). The family members could take the matter to the Court of Protection established under section 45 of the Mental Capacity Act 2005 for a decision. However, it would be advisable for the family to use persuasion. A patient has a right to change her mind at any time since consent is a continuing process. The law is less stringent on proving acceptance of treatment than on refusal arguably to promote sanctity of life and beneficence principles.

Yet another important legal aspect to consider is whether the ‘informed consent’ was given voluntarily-without any coercion or undue influence (In Re T (Adult: Refusal of Medical Treatment) 1993 Fam 95). As the facts stand, there is nothing to suggest that there was any undue influence or coercion. However, should the family talk to the patient and she changes their mind, this might be reason to prove that the consent has not been given voluntarily. This would then put the healthcare professionals at the risk of being sued for battery in case they go ahead to treat Sarah who has preferred to exercise her right to autonomy and bodily integrity (Jackson, E., 2010, p. 219). Any such actions would go against the principles laid down in the case of Re T (Adult Patient: Refusal of Medical Treatment case [2004] involving a Jehovah witness patient that changed their mind to refuse treatment after talking to the mother.Sarah is a competent adult and her decision is in line with the principles of patient autonomy and self determination as well as the right to bodily integrity. The fact that she has made what looks to the family members as an unwise or irrational decision is immaterial (section 1(4) Mental Capacity Act 2005). As observed in the Re T (Adult Patient: Refusal of Medical Treatment case [2004] the question of mental capacity should not be confused with the nature of the decision since the view of the patient may reflect difference in values rather than absence of competence. Though capacity should not be decided in reference to age, it is arguable that Sarah’s values may be different to those of other family members. She values not being subjected to intrusive medical treatment which is consistent with her right to bodily integrity. This does not mean she is incompetent.

Apart from the legal issues involved in this scenario there are also ethical issues arising. While the principle of autonomy has been upheld and should be applied to let Sarah’s decision stand,such would not be in tandem with utilitarianism. It does not look at the interests of the majority who are the family members who would like to keep their relative alive. These family members have to look after her even when she is on palliative care in the hospice. This gives credence to a possible argument that Sarah was unable to weigh the impact of her decisions on the rest of the family members.Further, her actions do not bring ‘happiness’ in the utilitarian sense (Jackson, E., 2010) at least to the family members who are the greatest number. But in this case, this is an elderly woman and arguably, she is entitled to be allowed to depart the way she chooses. This is one way of following the Kantian ethics because humanity should not be treated as a means but always as an end (Jackson, E., 2010, p. 12). Further, disregarding the wishes of Sarah in this case would mean that justice is not being done equally to her. Kant advocated for universal laws that apply the same way to everyone (Jackson, E, p. 12). Patient autonomy is an established and tested principle of law.

The other issue is to do with the principle of beneficence. Accepting not to treat Sarah is generally not good. Healthcare practitioners are supposed to do good which does not imply not taking any action. Beneficence looks at the concept of ‘good’ from the non-material point of view. Arguably, Sarah seems to be promoting different values, of dying with bodily integrity. In terms of virtue ethics, the patient autonomy principle of respecting Sarah’s decision to die when she has a chance to live is not the right decision. Her life at 86 cannot be said to lack the most basic human goods (Jackson, E, p. 13). Even from a deontological point of view, it is intrinsically wrong to let someone die because of promoting patient autonomy. It is contended that patient autonomy indirectly grants a ‘right to die’ contrary to the law. Finally using a consequentialist approach, resources should be concentrated where they promote the maximum possible welfare for the maximum number of people, notably promoting the quality of life rather than sanctity of life. It might mean that resources should be allocated to prevention rather than cure.

In conclusion, important human rights, legal and ethical issues have been raised and discussed. The central one was whether there was consent as required by law. It has been argued basing on the fact that the patient is being kept pain-free by morphine, and based on the presumption of capacity the family members have a weak case. Sarah has a right to decline treatment and she exercised it while (in our view) having the mental capacity to do so. While this goes against other ethical considerations, the paramount consideration is Sarah’s competent opinion, however irrational it may be. The scenario shows how contentious determining consent can be. Even where it looks clear, relatives may sue healthcare professionals pursuant to the Human Rights Act. Whether the challenges succeed is for the court to decide based on evidence.

References

Bartlett, P., and Sandland, R, (2007), Mental Health Law: Policy and Practice, Oxford University Press (Chapter 10, Mental Capacity).

Brazier, M., and Cave, E., (2007), Medicine, Patients and the Law, 4th Ed. Penguin Books

Jackson, E. (2010), Medical Law: Text, Cases and Materials, Oxford University Press, Oxford.

McHale, J, et al (2007), Health Care Law: Text and materials, Sweet and Maxwell.

Mason, J.K., et al, (2006), Mason and McCall Smith’s Law and Medical Ethics, Oxford University Press.

Montgommeryy, J, (2003), Health Care Law, Oxford University Press

Acts and Conventions

Convention for the Protection of Human Rights and Fundamental Freedoms
as amended by Protocols No. 11 and No. 14 (accessed on 15.06 2012 at:

http://conventions.coe.int/Treaty/en/Treaties/html/005.htm).

Human Rights Act (1998)

Article 2 – the Right to Life
Article 3- Article 3- Right not to be subjected to degrading treatment
Article 8 – Right to Respect for Private and Family Life

– The Mental Capacity Act (2005)

Case Law

Airedale NHS Trust v Bland 1993 AC 789

Bethlem Royal Hospital and Maudsley Hospital [1985] AC 871

Chester v Afshar [2004] UKHL 41

Evans v UK (2007) 43 EHRR 21

F v W. Berkshire HA [1989] 2 All ER 545

Re JT [1998] 1FLR 48 (FD)

Markose v Epsom & St Helier NHS Trust [2004] EWHC 3130 (QB)

Paton v United Kingdom3 EHRR 408 1980

Pretty v United Kingdom [2002] 2 FLR 612

R v Lancashire HA ex parte A (2000) 2 FCR 525

(on the application of Burke) v General Medical Council [2005] Q.B. 424http://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=9&crumb-action=replace&docguid=I16EE5690673D11E18ED7DEE3C0946BB5

Re B (Adult: Refusal of Medical Treatment) 2002 EWHC (Fam.)

Re C (Adult: Refusal of Treatment) 1993 Fam 95

Re F [1990] 2 A.C. 1

Re MB (An Adult: Medical treatment) [1997] 2 FLR 426

R (N) v Dr. M., A Health authority Trust and Dr. O [2002] EWHC 1911

Re T (Adult: Refusal of Medical Treatment) 1993 Fam 95

Re W [1992] 4 All ER 627, 633

Savage v South Essex partnership NHS Foundation trust (2006) EWHC 3562

Schoelendorff v New York hospital 211 N.Y. 125 1914

Slater v Baker and Stapleton [1767] 8 Geo 111 860

Trust A, Trust B v H (an Adult Patient) (Represented by her Litigation Friend, the Official Solicitor)[2006] EWHC 1230(Fam)

Others:

Mental Capacity Act Code of Practice; (accessed on 20.06.2012 at: www.dca.gov.uk/legal-policy/mentalcapacity/mca-cp.pdf).

Journal articles

Johnston, C., and Liddle, J. (2007), The Mental Capacity Act 2006: a new framework forhealthcare decision making, Journal of Medical Ethics,2007; 33:94-97

MacLean, A., (2012), ‘From Sidaway to Pearce and beyond: is the legal regulation ofconsent any better following a quarter of a century of judicial scrutiny?’ Med. L. Rev. 2012, 20(1), 108-129

Mallardi, V, The origin of Informed Consent, (Abstract written in English, Article in Italian) giving historical origins of the doctrine of informed consent dating way back to ancient Greeks and Egyptians (accessed on 15.06.2012 at: http://www.ncbi.nlm.nih.gov/pubmed/16602332.

Shaw, J (1986), Informed consent: a German lesson (1986) International & Comparative Law Quarterly 864

Stein R, and Frances Swaine (2002), Ms B v An NHS Trust: the patient’s right to choose, 152 NLJ 642

Stirrat, G M and Gill, R, Autonomy in medical ethics after O’Neill, J Med Ethics 2005; 31:127–130