Abstract
Simon Woods proposes that we ought to re-orientate clinical decisions at the end of life back towards the patient, so as to honour his or her account of their “global” interests. Woods condemns the current medico-legal approach for remaining too closely tethered to the views of doctors. In this response, I trace the story of Mrs Kelly Taylor, who sought to be sedated and have life-sustaining treatment withdrawn, and I do so in order to show not only why Woods is right to detect an asymmetry in the law but also why there is more to the legal landscape than first appears. I argue that patient choice is indeed bounded—most obviously by the views of the doctors (and the judges), but no less significantly by so-called “public interest” concerns. Woods’ proposal implicitly, and rightly, forces reconsideration of these public interest dimensions of medico-legal decision-making. This often invisible boundary is not presently granted the attention it deserves (not least by the judges themselves). However, as soon as we delve into the ethical values at stake, then it becomes apparent that there are many more questions to be asked regarding their meaning and interaction before we can determine the appropriate ethical prism through which to view the health care endeavour in English medical law.
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Notes
There is evidence that British citizens are taking up the option to receive assistance in suicide in Switzerland. The precise legality of this practice is in doubt, particularly for friends or relatives who help the person to travel abroad: see, for further discussion [17, pp. 63–66].
The lawful permission granted to fatal inaction [1] will not be directly considered at this juncture.
This is not to say that all such decisions have been respected. Sometimes the judges are inclined to override a particular decision to decline food—and there is reason to suspect that undisclosed policy factors can prove determinative, as John Coggon has argued [7, pp. 249–250]. I will return to the policy (or public interest) dimensions of medico-legal reasoning later in this paper.
For a more detailed argument to this effect, see [17, p. 76].
Not only might we reasonably assume that they would have learned of her decision in the course of their ongoing relationship with her, but she also publicised her decision in the local and national media.
Note, for example, the letters prompted by the discussion in [25].
My central point here is that the lawfulness of Mrs Taylor’s request depends, at least in part, on the doctor(s) being willing to act on her request. I should add that the (conscientious) objections of Mrs Taylor’s current doctors are afforded a place in law [33]. However, where clinicians do object to involvement with a lawful request, they are duty-bound to refer care of the patient onto clinicians who are willing to comply. This suggests that there is more to the interplay between the views of the doctors and the decision as to lawfulness than I can explore in this paper.
Certainly, the judges seldom spell out the meaning or content of the public interest, despite their (occasionally explicit) appeals to the concept. The absence of critical engagement with this notion is even mirrored in the academic literature—scholars will frequently consider the ethical and policy dimensions of a particular topic (like euthanasia), but will less often step back and consider the broader scope of the public interest in medical law. Fortunately, the trend is starting to reverse, with important contributions now being made by bioethicists [3] and medical lawyers [21].
Autonomy in the “relevant” legal sense will be further considered below.
There are, however, undoubtedly other examples that could be given, such as the latitude sometimes afforded to clinicians through reliance on (or deference to) clinical judgement. Thus, we see rulings in which the views of the clinicians occasionally take precedence over other values and interests, such as those held by the patient or their proxy [18]. There are also situations in which the judges have had cause to consider the scope that should be afforded to the integrity (and consciences) of individual clinicians: see e.g. note 10.
Although there is insufficient space to consider the possibilities in detail, it is worth briefly noting the questions that need to be asked. As such, is the protection premised on some form of contract between the doctor and the patient? Or is the relationship, and the associated entitlements and responsibilities, premised on a convenantal relationship? Or is it the nature of the doctor’s duty that entails the acquisition of special privileges? For consideration of some of these questions, see e.g. [41, 17, pp. 128–130].
Indeed, it will always be necessary to subject what Harrington calls the “distinctively judicial common sense” to external scrutiny [14].
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Acknowledgements
The author gratefully acknowledges the comments made by participants at both the Cardiff symposium and the Centre for Ethics in Medicine (University of Bristol) Journal Club, at which these arguments were presented. Thanks also to Professor Karen Forbes, for stimulating discussions about the legal and ethical issues raised by Mrs Kelly Taylor’s narrative. The author is a member of the Clinical Ethics Advisory Group of the Bristol Royal Infirmary, United Bristol Healthcare NHS Trust. The arguments developed in this paper are the author’s own, and do not express the views of the Committee or the Trust; the author also hopes that nothing in the paper will cause distress to anyone involved in Mrs Taylor’s care.
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Huxtable, R. Whatever You Want? Beyond the Patient in Medical Law. Health Care Anal 16, 288–301 (2008). https://doi.org/10.1007/s10728-008-0082-z
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DOI: https://doi.org/10.1007/s10728-008-0082-z