This is a good time to express support and appreciation to our Muslim colleagues at a time of great difficulty after the London bomb outrages. The is little doubt that they are suffering from prejudice and possibly criticism, though the vast majority of members of their community are law abiding and good citizens. The tradition of toleration and respect is maintained by the majority in this country. Through organisations like the Medical Ethics Alliance the hand of friendship is extended as we recognise the contribution that our Muslim colleagues make to the profession and society generally.
The Leslie Burke Case
Mr Leslie Burke is suffering from a progressive degenerative neurological disease. He knows that he will ultimately be unable to swallow and have difficulty in communicating. He wants his wishes respected and to receive food and fluids with medical assistance when the time comes. He applied to the High Court to have this positive advance directive upheld and Mr Justice Munby QC ruled that his wishes should be determinative save where it would lead to an “intolerable life” and that the current GMC guidelines on withdrawal of withholding ANH are unlawful and also ruled that questions over ANH should be determined by the courts in many instances.
The GMC, and the Department of Health appealed, and the MEA joined Alert and others in intervening on his behalf. The main points of our intervention, which was put by Mr James Dingemans QC in Court in May, were that we supported the concept of a high legal threshold, namely, an “intolerable life” for non treatment decisions, but that his request should otherwise be determinative. It was pointed out that there is a huge difference in powers between the patient and Health Trusts. We also gave details of a number of cases where health Trust doctors had made inappropriate and unaccountable decisions to withhold ANH. Attention was also drawn to the case of David Glass where the European Court of Human Rights had been critical of a Health Trust for not referring a dispute to Court.
The Court of Appeal of Lord Justice Phillips and Lord Justice Wall and Waller on 28 July overturned much of the judgement of Mr Justice Munby. It rejected his wide ranging arguments, instead confining judgement to the issues facing Mr Burke. They ruled that his fears were unfounded and that he should be fed as long as he was competent and could communicate.
at 53 in Burke v GMC (C1/2004/2086) they say;
"We have indicated that, where a competent patient indicates his or her wish to be kept alive by provision of ANH any doctor who deliberately brings the patient`s life to an end by discontinuing the supply of ANH will not merely be in breach of duty but guilty of murder. Where life depends upon the continued provision of ANH there can be no question of the supply of ANH not being clinically indicated unless a clinical decision has been taken that the life in question should come to an end. That is not a decision that can lawfully be made in the case of a competent patient who expresses the wish to remain alive".
They also said that in determining the patients best interests of incompetent patients;
"It seems to us that it is best to confine the use of the phrase "best interests" to an objective test, which is of most use when considering the duty owed to a patient who is not competent and is easiest to aply when confined to a situation where the relevant interests are medical".
a point we have long made in the face of wider and more dangerous interpretations.
"A fundamental aspect of this positive duty of care is a duty to take such steps as are reasonable to keep the patient alive. Where ANH is necessary to keep the patient alive, the duty of care will normally require the doctors to supply ANH. This duty will not , however, override the competent patient`s wish not to receive ANH.".
The evidence of the MEA was mentioned specifically, and the cause for concern arising from the cases we had put before the Court, but that they were “not evidence” as such "but underline the importance of clear law in this area". The Judges said that though not unlawful, the GMC guidelines could be better drafted and there was a need for training in them throughout NHS hospitals.
Leave for appeal was not given but it is likely that Mr Burke will petition the House of Lords, and that if the Human Rights issue is not resolved it may progress to Strasbourg. The principle of whether death from thirst was a breach of Article 3 (inhuman treatment ), was not addressed by the Court of Appeal. The MEA remains in full support of Mr Burke and issued a press release which was taken up by The Tablet . The considerable costs of our actions have all been borne by a single generous and committed donor of Alert. Costs will continue, and any assistance would be welcome.
Lord Joffe`s “Assisted Dying for the Terminally Ill Bill [HL]
This was put to a Select Committee of the House of Lords who, in term invited submissions, and the MEA made a contribution which is reproduced in full in the official report ( Vol. II, HL Paper 86-2, 2005 ) .The report of the Select Committee now comes into the House of Lords in October. Lord MacKay, its chairman, said that the report was neutral but the main thrust is that it lends support to Parliament reconsidering the issues after a previous Select Committee, years ago, recommended no change in the law proscribing euthanasia and assisted suicide. Lord MacKay is suggested that if a future bill is introduced it should distinguish between euthanasia and assisted suicide so that a decision may be made on either or both. Lord Joffe has indicated that he will bring in a new bill. It is widely expected that it will be based on the Death with Dignity Act which came into force in Oregon in 1999 and which provides for doctor assisted suicide .Similar legislation failed in a number of other States in the US, as did some plebiscites, but now there is a world wide drive to get such legislation through. In Australia it was notably reversed by the Federal Government when a suicide measure was approved by the Northern Territories.
The Select Committee was more or less evenly divided on the main issues and the House is though to be similarly divided. What is certain is that any complacency or view that “it couldn't happen”, is the surest way to let it through. The position of the government on Lord Joffe`s bill is one of “neutrality” and they declare themselves “listening”. The Times in July said they may even give the bill time.
If you are minded to lobby then contact your MP, and the debate in the Lords is on 10th October. You can write to any peer or MP at ;
|The House of Lords||&||The House of Commons|
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The BMA drops its opposition to doctor assisted suicide
Using a completely novel system of policy making, the BMA Annual Representative Meeting in Manchester, June 2005, forsook 2000 years of medical ethics and their own 20 years of opposition to assisted suicide, and decided to adopt a “neutral position” leaving the question to society and confining themselves to “safeguards” for doctors and patients. Two days before, in an open debate speakers were 2:1 against assisted suicide, but on the last day after 40% of the delegates had departed they voted on options tabled the day before.
These were broadly, support, neutrality or continuing opposition. As these options are mutually exclusivethey were voted on one at a time and taken in reverse order. The neutral option was passed by only 11 votes. The wording of the options has never been put before the BMA membership, which hitherto was always the way with policy and many members have been expressing disagreement with the change in BMA News Review and the BMJ. There will be no opportunity to revisit this before the next ARM in 2006. The prominent role of the Chairman of conference who was also chairman of the Agenda Committee and the Ethics Committee, is noteworthy.
The Nuffield Council on Bioethics
A consultation took place in June on “The Ethics of prolonging life in foetuses and the new-born”, and the MEA made a contribution. In it the moral equivalence of the unborn and born was emphasised, and the general presumption in favour of life. There was no obligation to preserve life by any and every means, however, and withdrawal of treatment was justified when it was disproportionate or unduly burdensome in itself, or unlikely to achieve its purpose.
A principle role of the professional was to give accurate information and that clinical situations change so that decisions must be able to be reviewed. We did not think that protocols should take the place of proper bedside decision between parents and professionals and that we recognised that parents approached these questions from a different perspective. We opposed the suggestion that there should be a certain gestation age below which intensive care should not be given as a matter of public policy preferring a case by case approach.
We added “When the time comes to make life ending decisions the family almost invariable recognise this . Their intuition that “The time has not yet come is very likely to be correct” and that recognising the “inequality of arms that exists between Health Trusts and families....we hope that Trusts may be more helpful to families rather than get into adversarial position”. We concluded,
“We are persuaded that the more frequent use of a second medical opinion may be of considerable assistance to families. This must also provide for transfer of children between hospitals. Financial obstacles should not be used to prevent this”
AGM and Next Meeting
Following the very successful joint meeting in Birmingham with the Midland Branch if the Guild of Catholic Doctors we are going to combine with them again on October 13th, at 8 p.m.. In Newman House, Harrison Rd , Edgbaston. The AGM will coincide after a talk by Professor Joel Brind, the world authority on the association between abortion and breast cancer.
Please note this in your diaries now.
“Ethics and Wisdom in Medicine”; an appeal
“Ethics and Wisdom in Medicine” is into its 8th Volume. It is good to see that it has gained a world wide audience with more hits coming from the United states than elsewhere. We were surprised that we are even known in Mongolia!
It is free at all and funded by a charity the “Ethics and Wisdom in Medicine Trust”. If you would like to make a contribution to costs please make cheques out to the above and send them to
PO Box 11582
The MEA press releases continue to result in a number of articles and there has been TV and radio interest, mainly from the BBC. We have also been contacted by programme makers and researchers to provide information which is then used by their presenters.Thus a wide audience is hearing our views, directly or indirectly . Talk radio being the most favourable medium to develop proper discussion. Recorded TV, is the least useful medium, usually as a result of heavy editing.
WITH ALL GOOD WISHES FOR WHAT REMAINS OF THE SUMMER
Dr Tony Cole