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A Sleight of Mind


Posted by Dr No on 20 November 2009

monkeys.JPGThe man-made nature of law, both common and statute, means that it can have many if not all of the attributes of man. It can be great and just, just as it can be weak and flawed. And it can be abused – and nowhere is this more clearly seen than in the tragic case of Kerrie Wooltorton, the 26 year old Norwich woman who killed herself while under the care of doctors who felt obliged, because of legal advice they had received, to withhold life-saving treatment, and in so doing, allowed her to die.

The Norwich doctors’ actions, in so far as they contributed to Wooltorton’s death, and the subsequent coroner’s finding that they had acted as the law required, raised a howl of protest amongst not only doctors, but also the public. How, they howled, could it be right that doctors stand by while Wooltorton died? That howl was met be an equally loud contrary bark from the lawyers – including the coroner who conducted the inquest into Wooltorton’s death - and ethicists, who said that, despite the opinions of the howlers, the law could not be clearer. Wooltorton had to be allowed to die.

Now, the first question to ask is: which law would that be? Wooltorton died in September 2007, and yet the relevant parts of the oft-quoted Mental Capacity Act 2005 only came into force in October 2007 – and that means that the Act did not, in a strict sense, apply to Wooltorton. At the time of her death, the relevant law was common law, which itself relies heavily on a case cryptically known as Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819. The relevant GMC guidance at the time of Wooltorton’s death can be seen here.

Be all that as it may, the MCA was about to come into force – and so it is not inconceivable that the lawyers and doctors involved borrowed from it; and most subsequent analysis has relied on the Act; and it is certainly the relevant Act today – all of which is to say that it is reasonable to look at matters through the prism of the Act.

The second question to ask is: is the Act, in its clauses on capacity, open to abuse, be that abuse either intentional or unintentional? On the face of it, no, and that is no doubt why our learned friends are so adamant that all is crystal clear. In a strict and literal reading of the law, no doubt they are correct: as the law now stands, Wooltorton had to be allowed to die.

But - could the Act, in some unintended way, as a prism bends light, cause a distortion that, far from protecting an individual, has the opposite effect; and that in the blinkered rigidity of legalistic thinking, we end up achieving the wrong result for the right reasons?

Deontologists (armchair ethicists who argue that we must do what is right, and stuff the consequences, even when harmful), will of course have no fuss with blinkered legalistic thinking. The blinkering is necessary (to blot out the consequences), and the legalism is necessary (it tells them the right thing to do).

Back in the real world, blinkered legalism fails – and this is pure consequentalism (it is the consequences that matter) – precisely because it produces the wrong results. Sometimes those adverse consequences might be trivial; at others, so serious as to be, quite literally, fatal. As they were with Wooltorton.

Now, the third question to ask is: how on earth did blinkered legalism come to prevail?

On reflection, it appears quite simple. The MCA, as with any Act that touches on moral matters, carries, in addition to its manifest clauses, a meta-text, an unspoken but ever-present ethos that not only colours the Act, but, in subtle and unseen ways, colours the application of the Act.

As the Act requires, the doctors and lawyers in Wooltorton’s case asked: did she have capacity to refuse life-saving treatment? Let us (despite all the doubts that exist) say that she did, and therefore she was indeed, in a strict legal reading of the matter, in a position to refuse that treatment.

But there is a flaw, and in this case it was a fatal flaw. The Act carries with it the meta- (and not so meta- in the Code of Practice) text that all decisions about capacity are time and situation specific. This principle, which in many circumstances has merit, nonetheless has the effect of wrapping any assessment of capacity in its own moment; and so, by a sleight of mind, any considerations beyond that moment are excluded, however salient and relevant they may be, and so become irrelevant.

And so it is that we cannot deny that, in their blinkered – blinkered, that is, by the meta-text of time and situation specificity - moment, the doctors and lawyers did as the law requires, but their conclusions were restricted, and so flawed; as if they had told the truth, and nothing but the truth – but had failed to tell the whole truth.

Blinkered thinking is rarely a good idea. When it comes to matters of life and death, it becomes positively dangerous; and it is thus bad medicine.

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