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Snuff Doctors


Posted by Dr No on 26 November 2009

3candles.jpgEthicists – those academics who are wont to use the incomprehensible in pursuit of the unknowable – have lately been enjoying something of an outing from their armchairs in the matter of Kerrie Wooltorton. Many aspects have been much debated, but one mighty elephant remains in the room: to what extent is a doctor who stands by and watches a suicide complicit in that suicide?

This is a delicate question, but is none the less important for being so. If there is no complicity, then the doctor is in the clear. But if there is complicity, then, to the extent the doctor is complicit, his actions become distinctly questionable, not only morally, but legally. The Suicide Act 1961 is quite clear: complicity in suicide is illegal – and carries a maximum sentence of fourteen years.

Importantly, if it becomes established that it is acceptable in law for doctors to stand by and let die, then we have already arrived at physician-present suicide, and that, in turn, moves us a large way down the road towards physician-assisted suicide. If the physician turns out not to be a mere bystander, but complicit – and so a participant – then we have already, for practical purposes, arrived at a state of legally sanctioned physician-assisted suicide. Formal legislation is then but a short step away.

Given the seismic implications of any such changes, one might expect the lawyers to be out in force; but the reality, as the Witch Doctor has observed, has been all but nothing. Apart from Coroner Armstrong’s assertion that any attempt to save Wooltorton’s life would have been “unlawful”, and a short piece by Professor of Law in Ethics and Medicine Shelia McLean saying that the doctors had “no alternative” but to let Wooltorton die, there has been a baffling silence.

It has, instead, fallen to the ethicists to present the case for standing by and letting die. Their first attempt relied on asserting that the law was quite clear, and the effect was to underwrite the legal view: that the doctors did indeed have “no alternative” but to let Wooltorton die, and that life-saving treatment would have been “unlawful” because that is what the law said. End of argument.

As it happens, despite their loud declarations that there was no argument to be had, the ethicist’s assertion was, in fact, some way from the position of clarity and certainty they sought to portray. There are in fact, strong counter-arguments of considerable weight; indeed, of such considerable weight that when all are weighed in the balance, then it is the ethical argument – and thereby the legal one too – that are found wanting.

The first flaw in the ethical argument is that it is underpinned by a singular ethical wheeze known to the cognoscenti as deontology. To plainer folk like Dr No, deontology sounds dental (and probably painful); but in fact it is a school of ethical thought that holds that determination of what is Good (and therefore the right thing to do) is determined solely by consideration of what we ought to do. Thus, if we do what we ought to do, then we have done the right thing. End of argument.

The natural affinity between deontology and the legal position is all too clear to see. But deontology is in fact just one of many possible schools of thought, and one that, when examined, has a fatal flaw. It is blind to consequences.

Deontology requires us to do what we ought to do; that is, we must act from duty (Greek: deon: duty; obligation); and in that requirement, it specifically precludes us from considering consequences. But, what if those consequences are bad? Possibly very bad?

Imagine that you are harbouring a Jew in Nazi Germany. The Gestapo arrive and demand to know who is living with you. If you reveal the Jew, you will send her to certain death. And yet, that is exactly what a deontologist has to do, because he must act from duty (in this case to tell the truth), regardless of the consequences.

And thus, as the juggernaut of deon crashes into the brick wall of consequence, we see the moral absurdity of the deontological position fatally exposed. We cannot exclude consequences from our assessment when the harm of those consequences exceeds the moral good of doing our duty. The Norwich doctors may have done their duty by the law; but when we include, as we should, the consequences of their actions, we find that the morality of the matter is far from clear, and far from certain; and the deontological position, far from throwing light, is wilfully blind, and chillingly unhelpful – and is therefore no longer tenable.

Once we remove our deontological blinkers (and in so doing move to a position of consequentialism), we can see clearly that the action of the Norwich doctors, in not providing life-saving treatment, was one – one of many, to be sure, but still one for all that – of the antecedents that led to Wooltorton’s death.

Which returns us, conveniently, to the question complicity. The doctors’ non-provision of treatment may have contributed directly to Wooltorton’s death, but it does not necessarily follow that they were complicit. After all, they didn’t actually do anything. They just, err, stood by and let her die.

Here, we quickly find ourselves in that ethical and legal dilemma known as the acts and omissions distinction. And, just as with the confident assertion of a deontological position, we once again find a confident assertion on the part of the ethicists: that the AOD, as it is known, applies: that a failure to act (an omission) cannot carry the same moral weight as an act; and that legally, an omission – because there is no actus reus (no “guilty act”) – cannot give rise to culpability.

And again, we find that this is only part of the story. The ethicists who argue that the AOD applies rely heavily on the case of Bland, a man left in a persistent vegetative state following the Hillsborough Disaster. But the case doesn’t really apply: Bland’s clinical state shares nothing with Wooltorton’s; the doctors and the family were united in their view that Bland’s best interests were no longer being served by keeping him alive, and, moreover, the judges were at pains to say that their judgement should not be taken to set a precedent:

I am very conscious that I have reached my conclusions on narrow, legalistic, grounds which provide no satisfactory basis for the decision of cases which will arise in the future where the facts are not identical.

Even if it were to set a precedent, that precedent would at best be ambiguous, given the unease about giving effect to the AOD expressed in the judgement:

I must recognise at once that this chain of reasoning makes an unpromising start by transferring the morally and intellectually dubious distinction between acts and omissions into a context where the ethical foundations of the law are already open to question.

And so, it appears, the Bland judgement is of no assistance. Instead, we must turn to a wider consideration of the AOD, and its relevance to Wooltorton’s case. And what we find is that, for every ethical opinion that holds that the AOD is valid, we find another that holds that it is at best dubious, at worst spurious and misleading. Google “act omission distinction”, and you will see for yourself.

What sense can we make of this? Dr No does not have a definitive answer, because he is not of course in a position to provide one. But he does have a view.

We must not here forget that, notwithstanding the blinkered deontological certainty attached to the question of capacity, there was at the very least considerable clinical uncertainty surrounding Wooltorton’s mental state and true and continued intentions; nor was Wooltorton in the painful throes of an inevitably terminal illness; still less was she in a persistent vegetative state. She had, instead, an acute condition, brought on by self-poisoning, which was eminently treatable, and had it been treated, she would in all likelihood have survived.

That said, Dr No’s view is that, when a duty of care has arisen, as it had arisen in Wooltorton’s case, then omitting to act, when it is foreseeable that so omitting to act will cause harm to the patient, carries the same moral weight as a positive act that would bring harm to the patient. He comes to this view by an application of the so-called “but for..” test: but for X, Y would not happen. But for not treating, Wooltorton would not have died; and so the link of causality is established.

By electing not to act, the doctors became accomplices in Wooltorton’s suicide, and to the extent that they were accomplices, they were complicit.

They failed to close a window, and a candle was snuffed out in the wind.

3 comments:

"Deontology requires us to do what we ought to do; that is, we must act from duty --->Imagine that you are harbouring a Jew in Nazi Germany. The Gestapo arrive and demand to know who is living with you. If you reveal the Jew, you will send her to certain death. And yet, that is exactly what a deontologist has to do, because he must act from duty (in this case to tell the truth), regardless of the consequences."

-------

But 'duty' to who? To the law of the state? .. or to one's own moral compass? .. Or the duty of the doctor to put the patient first? [remember socrates] .. Because, as time was of an essence in this case, if it was to the law of the state, I would question her mental capacity after 9 attempts at suicide and that alone would make me, had I been a doctor, to give the needed life saving treatment to eliminate doubt, then assess her for capacity after. I would also have used the fact that that living will note was ambiguious and non verified to also be one ground to protect myself legally after saving her life.

And if my duty was to my own conscience, that's much simpler because that just says I have that uppermost duty to save any life if I can, let alone that of a tormented and desperate 26 year old who needed compassionate help.

It then follows that if my duty as a doctor is to put the patient first, I would still save her life because this is what was intended when this rule was thought of in the first place; the preservation of life .. not assistance to die!

So, on all counts, it is 'save, save, save'!

This young woman was let down big time by the system, those doctors who stood by and did nothing AND the law! No two ways about it'

If in doubt, or it hurts, do not do it, because it will prove to be wrong ... this case is both! It is doubtful AND it hurts!

Sam - You've hit the deontological nail on the head: who decides: which duty, and to who? Once those questions are on the table, the deontological project is revealed as the post-modernist sham that it is.

As for the rest of your comment: I am in of course in absolute agreement. Something quite wrong went on in Norwich, and I have no wish to see it become the norm by default. That is why I write the long and rambling posts that I do...

"I have no wish to see it become the norm by default. That is why I write the long and rambling posts that I do"

And that's why we're all here, to ramble when something is either doubtful or is unfair so that it does not become the norm by default. not become the norm by default

So, keep on rambling whenever you feel that something is hurting you inside doctor - I wish everybody else did when this young woman was in their hands!


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