“Doctors are busy playing God when so few of us have the qualifications. And besides, the job is taken.”
Bernie S. Siegel
Dr Grumble’s recent post A flawed Act provoked a vigorous – and very necessary – debate over what happens when an individual’s right to kill themselves clashes with a doctor’s duty to preserve life.
The trigger for this conflict, and make no mistake, conflict it is, was Kerrie Wooltorton’s (the Norwich woman who killed herself by drinking antifreeze) use of a “living will” to prevent doctors from stopping her dying when she presented at hospital. Instead, the “living will” – an oxymoron if there ever was one – required doctors to provide only pain relief and comfort. The doctors complied, and Wooltorton died.
On one level, this is a doctors vs lawyers argument about what happens when one law, the Mental Capacity Act 2005, clashes with another law, the Suicide Act 1961. The effect of the MCA is to force doctors to fall foul of the Suicide Act (should they stand by), or face prosecution for assault (should they treat). They are damned if they do, and damned if they don’t.
Quite how the great legal minds that drafted the MCA failed to spot this obvious and inevitable clash beggars belief, unless, of course, you accept that, as is so often the case, the law is an ass – an observation which may explain how we got here, but does nothing to help solve the problem.
Be that as it may, doctors, unlike lawyers, work at the coal-face. They have to make real-time decisions about real people in the real world. Dr No, along with many other doctors, is of the view that in Wooltorton’s case there was sufficient doubt over capacity – Wooltorton had both depression and emotionally unstable personality disorder – to mean that treatment was in her case justified. But there remains the, so far as we know as yet untested, case in which a sane, capacitous individual initiates suicide and then seeks medical help with a do not resuscitate me string attached.
This is at the heart of the dilemma, a dilemma which extends far beyond asinine law. However saddened we might be at a suicide, it is rightly no longer illegal to end one’s own life. The individual who chooses to kill him or herself alone does not give rise to this dilemma. The dilemma arises when the patient – for that is what he or she becomes – seeks medical help. It places the doctor in a horrible position. The doctor has a duty to preserve life, but also to respect the patient’s wishes. And in this particular patient, these two duties are diametrically opposed.
The law, as we have seen, is of no help; in fact, it is part of the problem. It cannot be relied upon in any way to guide the doctor and the patient through the minefield that we are now in. We must look instead at the wider picture, at the moral and ethical questions that must be answered if we are to know what the right thing to do is.
Dr No does not have the answer. He does however think he may have an inkling of where the moral battleground is. Any suggestions he may make are tentative in the extreme. Dr No has no wish to have bricks come flying through his window or, far worse, have the Witch Doctor cast a spell on him. But he does think this is a very important question of our time, and one which needs airing – and answering.
Dr No thinks the clash lies between the right to life, and the right to autonomy (self-determination). Those who favour life will argue that the right to life is the supreme right, for without life there is nothing, and the religious will point to the sanctity of life; those that favour autonomy will say that we are free to determine our own fate, however much others (including God) may deplore what we do; that there can never be a place where one individual can force their will on another, and that to do so over life and death decisions is, quite literally, to play God. They will no doubt add that doctors have form when it comes to playing God.
Those who wish to die by their own hand will point to the anguish of a failed or thwarted attempt. They will say, very reasonably, that to die alone and in pain, even if one has caused one’s own death, is inhumane, and that doctors have a duty to relieve their suffering, even when they are dying by their own hand. They will point to the hospices and say you provide palliative care for them: why not for us?
What the pro-autonomy lobby (PAL) cannot deny is that doctors have a duty to preserve life. Any erosion of that duty will, by way of creep, start us on the path that leads to Dr Death, and the atrocities of Nazi Germany. Today the doctor stands by while the patient kills herself (that is what happened in Norwich) – an act of omission that allows a patient to die. Tomorrow the doctor will “assist” with suicide, even to the extent of administering the fatal injection. A red line has been crossed. The doctor has moved from a position of standing by to one of active intervention with intent to kill.
So far, the decision to die has rested with the individual who has chosen to die. But it is only a matter of time before the less good in this world see fit to make the decision on behalf of others. Owners put their pets out of their misery, because it is the kind thing to do; before long, doctors will put frail, pain-ridden, long suffering patients out of their misery, because it is the kind thing to do. Before we know it, we extend the principle ending miserable lives towards preventing miserable lives: we kill those whose lives we deem will be deficient. It’s what the Nazis did, in Europe, and less than a century ago.
What the pro-life lobby (PLL) will say is that the only way to avoid going down this path is never to turn on to it in the first place. The red line at the start of the black run must never be crossed; if it is, there will be no turning back.
The PAL will argue from a Kantian position that autonomy is the fundamental right, from which all others arise, and therefore has the higher ground. The PLL will argue that it is autonomy only in so far that it does not ill affect others – and that suicide does ill effect others – the survivors.
Dr No suspects that, approached in these ways, the dilemma is unresovable. There is simply no reliable way of determining whether one right has the ascendancy over another. All rights are equal. The problem is, we are no nearer a solution.
If we are unable to resolve the dilemma by establishing a hierarchy of rights, perhaps there are other ways of approaching the question. Dr No thinks there might be: by way of looking not at the abstract right, but the practical outcome, and by way of precedent.
If we accept both rights have equal weight, what happens in each of the two cases where we allow one or the other to hold sway? When the PAL holds sway, the patient dies, and the doctor has their moral duty offended (and for some this offence will be hard to bear); when the PLL holds sway, the doctor imposes their will on that of their patient and the patient is forced, against their will, back to life.
Not all will answer the same way, but to Dr No, it does seem that a case can be made that the offending of a moral duty is a lesser evil than the forced imposition of one will over another, and that maybe for this reason the way of the PAL wins the day. Autonomy does trump life – as long as all other things are equal.
For those who haven’t spotted it – I did drop a clue six paragraphs ago – this dilemma bears a remarkable similarity to a precedent – the abortion debate. Both, at their heart are about the right to life against the right to self-determination.
We allow abortion – but we manage it in a planned way. It is thought through before a commitment to abort is made. Doctors who are uncomfortable with abortion – for whatever reason – are not forced to get involved, as long as they refer the patient to a doctor who is prepared to get involved. We could adopt the same approach to the sane, capacitous individual who wishes to kill him or herself.
So, in summary:
The red line – committing an act with intent to kill – is never crossed by doctors. If it is necessary (Dr No is inclined to think it is not) to kill others outside war, then that is done not by doctors, but by executioners.
The suicide who presents as an emergency with a do not resuscitate me string attached is always treatable, because the doctor cannot reliably assess capacity, let alone other aspects of the patient, in the urgency of an emergency situation where time is of the essence. Death, remember, is a one way street.
The sane, capacitous individual who wishes to kill themselves and wishes to have pre-planned, pre-agreed medical pain relief and comfort in their last hours does have this right. But not all doctors are not obliged to be involved: those who are uncomfortable – for whatever reason – are not forced to get involved, as long as they refer the individual to a doctor who is prepared to get involved.
The MCA as it stands is bad law. It needs modification to remove the conflict between it and the Suicide Act on the one hand and the doctor’s moral duty to preserve life on the other hand. Until such time as this conflict is removed, doctors are not compelled to comply with bad law.
Meanwhile, the sensible suicide steers clear of the medical profession altogether, and just gets on with it. They, as it were, keep it between themselves and their God – and by so doing don’t give the doctors a chance to play their God.