THE RIGHT TO DIE

Peter FreemanAuckland

New Zealand

The Hippocratic Oath (circa 400 BC) “I will prescribe regimen for

the good of my patients according to my ability and my judgement and never do harm to anyone. To please no one will I prescribe a deadly drug nor give advice which may cause his death.”

Paternalism

The opinion that medical beneficence takes priority over a patients’ autonomy.

This dominated medical practice for the next two Millennia.

Paternalism is now considered Ethically suspect.

The Issues

CLINICAL ETHICAL

LEGAL PSYCHOLOGICAL

SOCIAL

The Dilemma

Doctors’ duty Patients’ rightsUrgent necessity Self determinationInformed consent Advance directiveCompetence Privacy Beneficence AutonomyNon-maleficence Refusal of treatment

Informed consent

A capacity for informed consent requires:

Communication Comprehension Context interpretation Choice An incapacitated individual

requires an Advance Directive or surrogate decision maker.

Mental Health and Decisional capacity

The NZ Mental Health Act gives powers to treat against a patients wishes but only in the context of Mental Illness and treatments.

The presence of mental illness does not always equate to decisional incapacity.

Case scenario 1

18 yr. old female presents to ED 6 hours after a massive paracetamol overdose. She wrote a suicide note which was found by a friend who called round unexpectedly. She is rational, refuses treatment and still wants to die.

Issues -

• Is the suicide note an “Advance Directive”?

• Can she be treated against her wishes?

• If so, what degree of force can be used to treat her?

• Can we inform her parents if she tells us not to?

Is the suicide note an “Advance Directive”?

Advance directive (Living Will)

A component of Advance Care Planning by means of documenting, in advance, a persons’ health care choices in the event that they become incapacitated or incompetent to make those choices.

Advance directive

Legally recognised by Right 7 (5) of the Code of Health and Disability Services (NZ):

Person must be competent

and fully informed of their current medical condition and the consequences of the directive.

An Advance Directive should be context specific - documented, witnessed and signed.

Suicide note

In the context of an impulsive overdose - a suicide note is unlikely to meet the requirements of an “Advance Directive”.

Can she be treated against her wishes?

Urgent necessity

Common Law: It is a duty of clinicians to

provide whatever care is needed in an emergency to preserve life. Treatment in an emergency is justified using the concept of urgent necessity when the patient is unable to consent.

Urgent necessity

A legal opinion: “We may be tolerably certain

that the law would not condemn intervention which is absolutely necessary to save the patient’s life in some cases where they are known to object.

Even if intervention is technically “battery” no jury is likely to convict, and there could be no substantial damages for wrongful life!”

Suicide NZ Crimes Act 1961

Section 179: “Everyone is liable to

imprisonment for a term not exceeding 14 years who -

(a) Incites, counsels or procures any person to commit suicide, if that person commits or attempts suicide in consequence thereof; or

(b) Aids or abets any person in the commission of suicide”

Aiding NZ Crimes Act 1961

Section 179: “Aiding” in criminal law

means assisting, helping or giving support to.

Physician assisted Suicide is illegal (except in Oregon).

Suicide itself, however, is not illegal.

Suicide

A legal opinion: “Even if it is accepted that a

person should not be prevented from carrying out a calm or reasoned decision to terminate his/her own life, there is an overwhelming case for the intervention where there is reason to believe that, if given help, the person might be glad they did not kill themselves.”

What degree of force can be used to treat her?

Suicide

NZ Crimes Act 1961 Section 41:

“Everyone is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide…”

This would only authorise “life saving treatment”.

Can we inform her parents if she tells us not to?

Privacy

NZ Health and Disability Commissioner Act 1994:

“Everyone has the right to have his or her privacy and dignity respected, and to be provided with services in a manner which takes into account the persons cultural, religious, social and ethnic needs, values and beliefs”

Case scenario 2 49 year old advanced

multiple sclerosis patient brought to ED by her husband following collapse. Has refused to eat or drink for 3 weeks. On arrival delirious, dehydrated and hypotensive. Accompanied by husband who informs staff of her “living will”.

Case scenario 2 Her ‘Living will’ clearly states

her wish not to be treated in the event that she becomes incapacitated. Husband disagrees with his wife's wishes. Patient had community assessment by two psychiatrists who at the time confirmed her to be ‘competent’.

She now wants to leave.

Issues -

• Does the right to refuse treatment include nutrition and hydration?

• Is her action suicide?• Is the “Living Will”

(advance directive) binding?

• Should she be allowed to “sign herself out”.

Does the right to refuse treatment include nutrition and hydration?

Medical treatment

NZ Bill of Rights 1990 (section 11):

“Everyone has the right to refuse to undergo medical treatment.”

“Medical treatment” includes the provision of nutrition and hydration.

“Everyone” means everyone competent to do so.

Consent

Doctors are not entitled to treat if it is known that the patient has clearly stated that he/she does not consent and that such treatment is against his/her wishes - provided he/she is of sound mind and full capacity.

Is her action suicide?

Suicide v's refusal of medical care

Significant Ethical differences exist between suicide and refusal of medical care.

In suicide - the immediate cause of death is a self inflicted lethal act.

In refusal of care - death is caused by the progress of an untreated lethal disease, or an individual does not permit others to help them survive.

Terminal Sedation

The practice of sedating a patient to unconsciousness to relieve severe physical symptoms associated with dying - followed by the discontinuance of life-sustaining treatments such as ventilatory support, dialysis, artificial nutrition and hydration.

The Principle of Double Effect

An intervention that will have both desirable (analgesia) and undesirable (respiratory depression) effects.

Ethically the intent must be for the benefit of the desirable effects and dosages must be used to this end.

Is the “Living Will” (advance directive) binding?

Advance Care Planning

The concept of advance care planning represents a shift of medical practice from the long established Hippocratic tradition and ethical principle of beneficence. This principle directed a physician to act in the patient’s best interest to maintain life.

Advance directive

Must convey “clear and convincing evidence of an incapacitated person’s prior wish”.

Alternatively a “enduring power of attorney” may be appointed prior to incapacity.

Should she be allowed to “sign herself out” ?

Leaving “against medical advice”

A competent patient cannot be forced to sign a statement confirming they are leaving “against medical advice”.

They have a right to leave at will.

The document merely provides legal evidence that the patients’ departure was voluntary and that they were warned about the risks of leaving by the responsible clinician.

Autonomy

It is a well established principle that a competent adult has an unassailable right to refuse all treatment at common law, even if this will lead to death.

Competence

Medical Practitioners may encounter legally competent patients who appear to have their mental capacities compromised by illness, anxiety or pain.

This clinical state is known as incapacity and must be distinguished from legal incompetence.

Mental Capacity

Although the patient was legally competent at the time of signing the Advance Directive she was incapacitated when she asked to “sign herself out”.

She should be detained for further assessment.

Self-determination

If an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which life would or might be prolonged, the doctors responsible for care must give effect to the patients’ wishes, even though they do not consider it to be in the patients’ best interests to do so. To this extent, the principle of sancity of human life must yield to the principle of self- determination.

Takeaway message Is a lifesaving medical intervention indicated?

No - do nothing Yes - Is consent obtained? Yes - Intervene. No - Is it suicide? Yes - Intervene. No - Is the patient competent? Yes - Do not intervene. No - Get a psychiatric opinion

“I’m not afraid to die -

I just don’t want to be there when it happens”

Woody Allen

Failure to provide the Necessities of Life

NZ Crimes Act Section 151: This would be interpreted

in the context of the clearly expressed wishes of the patient.

Ceasing life support

It is a well established principle that it is unlawful for doctors or anyone else to take active steps to end life, even with the consent or encouragement of the patient. However, the discontinuance of invasive ventilation by treating doctors does not amount in law to the taking of active steps to end life. Indeed, for doctors to continue treatment against the wishes of a competent adult patient would be positively unlawful.