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INSIDE THE ETHICS COMMITTEE

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Programme 3 - End of Life

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RADIO 4

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SATURDAYÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý 28/05/05ÌýÌýÌýÌýÌýÌýÌýÌýÌý 2215-2300

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PRESENTER:ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý VIVIENNE PARRY

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CONTRIBUTORS:ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý TED MORRIS

ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý ANDREW HARTLE

ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý DEBORAH BOWMANÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý

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PRODUCER:ÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌýÌý MICHELLE MARTIN

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NOT CHECKED AS BROADCAST

PARRY

Today, in our last programme of the series, Inside the Ethics Committee tackles perhaps the most difficult ethical issues of all - those concerning end of life.Ìý Because these issues are so troubling medical staff often take them to the hospital's clinical ethics committee.Ìý This consists of people from widely differing backgrounds, including members of the public, lawyers, clinicians and ethicists, who consider the case from all aspects.Ìý The perspective and distance they bring are highly valued and such committees are increasing in number.

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Today's case concerns the fate of a man with a chronic lung condition.Ìý Let's start by hearing the testimony of the consultant involved in his care.

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CONSULTANT

The patient was a 67 year old man who suffered from chronic bronchitis for a number of years, bronchitis was almost definitely related to a long history of smoking heavily.Ìý Now the bronchitis had got to the stage where they were having difficulty breathing, so the possibility of walking to the shops, for example, was no longer there, so they were essentially house bound.Ìý They would be able to dress themselves, get around the house, cook and by their judgement was having a good quality of life.Ìý The patient was admitted to hospital because they'd developed a chest infection and their treatment was started in the form of additional amounts of oxygen to breathe via a face mask.Ìý Early on in their admission discussions were had with regards to longer term care, including admission to intensive care for mechanical ventilation and further support.Ìý And at that stage they expressed enthusiasm to have everything done.Ìý

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PARRY

But things didn't go well.Ìý It soon became clear that the face mask wasn't working and eventually the patient had to have a tracheotomy to help him breathe effectively.Ìý This involved making a hole in the patient's windpipe, so that a breathing tube, connected to a mechanical ventilator, could be placed directly into his lungs.Ìý Once in intensive care his condition improved, but then it worsened again and continued to oscillate.Ìý After three and a half months on the unit his case was brought to the ethics committee.

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CONSULTANT

The question brought to the ethics group was whether here we were looking at care with possibility of survival or whether we were actually looking at a dying patient and all we were doing was temporarily prolonging that death process and therefore not meaningfully prolonging the patient's life and whether it was possible that we would create a scenario, if they deteriorated again, where their life would be intolerable, further care would be futile and that they should be allowed to die.

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PARRY

A very difficult case.

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Can I now introduce you to today's panel?Ìý The Reverend Ted Morris, chaplaincy head of service at Hammersmith Hospital's NHS Trust; Dr Andrew Hartle, consultant anaesthetist on the intensive treatment unit at St. Mary's Hospital in London and Deborah Bowman, senior lecturer in medical ethics and law at St. George's Hospital Medical School.

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Deborah Bowman, can we start with you?Ìý This isÌý really tricky case, what are the main ethical issues here?

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BOWMAN

Yes, this is a difficult case and I think the principle issues that fall out of it are about who decides and when decisions are taken.Ìý Specifically when one is able to make a decision, what we call competence.Ìý Whether one can make a decision about future care and the place of what are now called advance directives or advance statements.Ìý When a patient is no longer competent, what is in his or her best interests.Ìý Withdrawal of treatment decisions.Ìý And finally all this is taking place against the backdrop of resources in the NHS.

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PARRY

A huge range of issues there.Ìý Let's start with the patient's wishes.

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CONSULTANT

Well the patient underwent eventually a total of eight different cycles of trying to separate them from the breathing machine.Ìý So they would regain consciousness to a point whereby they could have their own discussions about what they wanted to happen.Ìý And there were mixed messages there, if they were having a very good day sometimes they would imply they wanted to continue but didn't want to have any discussions about the possibility that they might not get better and would appear to block that out.Ìý But at other times they would make very clear statements that they'd had enough and they would want to be left to die if they were to have a second deterioration, including writing that down on a number of occasions, writing down statements like "I've had enough, please let me die."

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PARRY

And I've actually got here in my hand what that patient wrote.Ìý I'll just hand it to you now.Ìý And it says:Ìý I want to die.Ìý

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BOWMANÌýÌýÌýÌý

I think this more powerfully captures the difficulty of this situation than any written word or indeed testimony can.

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PARRY

It's chilling isn't it.

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BOWMAN

Indeed.

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PARRY

Andrew Hartle.

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HARTLE

This is not unusual, I've often had patients write this sort of thing down or say it to me.Ìý I think people don't realise how unpleasant being a patient on an intensive care unit is, it's not a nice experience.Ìý I think the general public has a very sanitised perception of what intensive care is like from the media.Ìý A recent study showed that you were three or four times more likely to survive without any disability after a cardiac arrest but only if you were a patient on Holby City and not a real patient in a real hospital.

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PARRY

And do people write this and then survive?

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HARTLE

Yes, I can think of several patients this year who have said either - I want to die or you're killing me - who have survived to be discharged from the intensive care and discharged home.

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PARRY

Deborah, does something like this constitute an advance directive and what is that exactly?

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BOWMAN

An advance directive was also known commonly as a living will and it is a statement of wishes for what happens in the future, made when you're competent.Ìý And one of the difficulties is that there is no defined form for an advance directive or advance statement.

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PARRY

And would this be appropriate - it's a very scrawled note?

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BOWMAN

It could be if it met the legal criteria for validity.

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PARRY

Which are?

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BOWMAN

That it's made by a competent person, that it's made voluntarily, that it's made with information about the possible consequences of the content and that it's specifically applicable to the present situation.Ìý That last criterion being the most difficult to meet.

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PARRY

Reverend Ted Morris, can I bring in you here?Ìý What are the pros and cons for patients and relatives of making an advance directive?

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MORRIS

One of the positive things is that it allows patients to be proactive, so that if they are admitted to hospital they're not in a sense like puppets on a string and rather passive about the treatment they receive.Ìý It gives the patient time to talk through with the next of kin what he or she would want in certain circumstances.Ìý One of the disadvantages, it seems to me, might well be not for the patients who make advance directives but for those who for whatever reason don't want to make advance directives.Ìý And if advance directives become more and more pivotal in decisions about patient care can we be sure that the patients who for some reason don't want to make one are treated with exactly the same respect and regard as regards their treatment?

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PARRY

Andrew Hartle, you work on an intensive care unit, are advance directives helpful to you, I mean are they specific enough to cover different circumstances?Ìý I mean it seems to me that many of the patients that you will see won't have had a chance to make an advance directive because they've had some catastrophic event occur.

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HARTLE

I think that's certainly true.Ìý Approximately 80% of admissions to intensive care units are emergencies and may well be people who never anticipated ending up on an intensive care unit.Ìý Other problems are that we may not know that the patient has an advance directive.Ìý The advance directive can be helpful if it's written in the right way but the use of lay terms may actually cloud the issue.Ìý For example, a patient might say - I don't want to go on life support machine - which is a term frequently heard in the media but has no real precise definition.Ìý For example, a kidney dialysis machine is a life support machine and patients on kidney dialysis live full lives, hold down jobs and have families.

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PARRY

And presumably medical technology can overtake the directive, as it were, because what's say uncomfortable or difficult now may be easy and not a problem say in five years time.

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HARTLE

I think that's true.Ìý Medical science is developing all the time.Ìý I've often felt that advance directives might be more useful if rather than specifying specific treatments they actually specify what the patient's expectation was, what degree of illness or incapacity they were prepared to live with.

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PARRY

Do people change their minds about that because I mean if you're a 20 year old you may think that, for instance, you would never want to be in a wheelchair but actually by the time you get to the stage where you might be in a wheelchair you might think completely differently about that and actually have a quite good quality of life?

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HARTLE

I think personal circumstances do change and as you say the example of someone young in their 20s and their expectations and hopes, by the time they're in their 30s and 40s could now be married with children and have a completely different expectation.

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PARRY

Should changing your mind be built into the process do you think Ted?

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MORRIS

Absolutely.Ìý There's got to be a process where people recognise that people can change their mind and there's got to be a method of then reflecting that in their care.Ìý So the system has got to be extremely flexible.Ìý And I suspect that one of the reasons that some people are reluctant about advance directives is that they're frightened that if they do change their mind this will not be taken into account, either it will not be known or if it is known it won't be treated with the respect and regard the change of mind should be.

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PARRY

Deborah, is there a legal problem in the drafting of advance directives?Ìý I mean we've had from Andrew that the definition of life support, as say the media use it, is quite different to the medical use, is that a problem?

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BOWMAN

Yes I think potentially it is.Ìý And I think it's extremely difficult to draft an advance directive without specialist knowledge or advice, therefore one is inevitably going to be dependent upon some medical input.Ìý And yet there's a huge element of uncertainty in providing, even with medical training, for specific outcome.Ìý So the specificity is the most difficult thing when it comes to advance directives and advance statements and it is difficult to do that without some degree of specialist knowledge.

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PARRY

Can you give someone else the responsibility of making a decision for you, a proxy?

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BOWMAN

Currently in England and Wales you can't, in Scotland it's different.Ìý However, in 2007, under the new Mental Capacity Act, there will be provision for you to appoint a healthcare proxy, i.e. someone to decide for you.

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PARRY

Is there a difficulty with that, in that there are conflicts of interest?Ìý I mean, for instance, what if the person that you appointed as proxy was going to inherit a large amount of money under the terms of your will?

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BOWMAN

Absolutely, there is indeed a difficulty.Ìý I think one of the reasons the legislation has been so difficult is because formal processes have to be put into place to protect against potential conflicts of interest, which indeed may also be an emotional burden about deciding for somebody else whom you love as much as a financial interest.

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PARRY

Ted Morris, do you often come across this sort of conflict of interest?

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MORRIS

Yes, it's inevitable because if somebody's going to be appointed proxy it's very likely to be a close friend or relative of the patient and it may be quite natural that the patient wants to remember that close friend or relative in his or her will.Ìý What has got to happen, it seems to me, over advance directives is that we do have some legal safeguards to make sure that that risk of a conflict of interest is minimalised and can be acted upon by whoever if they feel that indeed the proxy's not doing the job he or she should be doing on behalf of the patient but is letting his or her interest override the wellbeing of the patient.

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PARRY

And are people like you in a situation to spot where that's happening?

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MORRIS

Occasionally.Ìý I wouldn't say that we have some kind of supernatural or magic insight into this, sometimes it's fairly obvious.Ìý Occasionally I think we're in a position that - given that we're in a sense rather detached from the medical care of the patient we can stand back and look at the overall situation.Ìý And maybe then feed in some information to the medical teams.

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PARRY

Deborah, can people in their advance directives - I mean we've talked a bit about refusing treatment - but can they request treatment?

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BOWMAN

This is currently under discussion in the Leslie Burke case.

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PARRY

Just remind us what the case involved.

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BOWMAN

Yes this is the case of Leslie Burke who has cerebellar ataxia.Ìý And he is challenging the GMC guidelines that allow doctors currently to decide that treatment is no longer in his best interests and arguing that just as one has a right to refuse treatment one has a right to request treatment - in his case artificial nutrition and hydration.

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PARRY

And I should say that cerebellar ataxia is one of those dread diseases where you remain sentient but you lose the ability to communicate, so it's a particular concern for him.

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BOWMAN

Yes indeed.Ìý And therefore this case is being heard at the moment, so there is ambiguity, we are not sure.Ìý Traditionally one's always thought that you couldn't request treatment but that now is under review.

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PARRY

Andrew Hartle.

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HARTLE

Well I think the view of doctors has always been that we're under an obligation under our duty of care to patients to offer them the best treatment that we think is appropriate to them and is in their best interests.Ìý We've not usually felt that patients could insist on a particular line of treatment and would not normally offer that if we didn't feel it was in their best interests.Ìý And indeed the courts have always been reluctant to direct doctors to perform a particular line of treatment.

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PARRY

You're listening to Inside the Ethics Committee.Ìý And today's case is that of a dying man who has already spent three and a half months in intensive care.Ìý His decisions about treatment have not been consistent and this case, as we're now about to hear, is further complicated by a difference of opinion between medical staff, the patient and the next of kin.Ìý Let's just go back again to the consultant's testimony.

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CONSULTANT

In this situation the next of kin was a friend, somebody who'd formed a very strong relationship over a number of years, seemed to provide a very high level of support and care and was the individual that would push the wheelchair when the gentleman wanted to go out to the shops etc.Ìý And it seems from further questioning that this person, who'd lost their own parents under unpleasant circumstances a number of years earlier, had adopted this gentleman as a surrogate father.Ìý And this individual was listed as the next of kin and had very, very strong opinions that everything possible should be done, even to a point at some stage where there was bedside disagreement between the patient and the next of kin.Ìý The next of kin making claims, which one can see might be reasonable, that they were too unwell to be able to make decisions about further treatment and therefore the next of kin saw it as their responsibility to at times override the wishes of the individual to say look he's too sick to be able to say he doesn't want to be treated further, he's not competent.

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PARRY

Deborah Bowman, as the lawyer on our team today, what's the legal definition of competence?

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BOWMAN

The legal definition of competence is whether or not the patient can understand what's being said to him or her, whether or not he can retain it for long enough to make some sort of considered decision that takes into account the advantages and disadvantages and whether or not that decision can be communicated.Ìý

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PARRY

Andrew, as a doctor, how do you assess competence?

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HARTLE

Well we use the same formula, I think in intensive care it can be particularly difficult, firstly communication may be difficult or impossible …

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PARRY

Yes, because I was wondering in this situation, if you've got a ventilator on, presumably you can't talk.

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HARTLE

Sometimes you can, sometimes you can't, I have to say the intensive carers are often very good at lip reading, a skill I've never managed to pick up, and of course patients may be able to write.Ìý But the circumstances may also change, the illness themselves may mean that they're no longer able to retain information, they may not even be conscious.Ìý And almost always they'll be receiving either sedative or painkilling drugs, which may alter their thinking and that can make a determination of competence extremely difficult.

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PARRY

Are you in a better position to judge competence than say next of kin?

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HARTLE

I'm not sure that we are, the next of kin at least have the advantage of knowing what the patient's like normally and that's often not an option for us.Ìý I think if there were ever serious concerns about a patient's competence we would normally ask for a formal psychiatric opinion.

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PARRY

Ted.

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MORRIS

I think that there's one other ingredient in the definition of patient competence which is in a sense a vital ingredient also in the matter of patient consent and that is freedom, is the patient under duress to make certain decisions about his or her care, duress either from the next of kin or sometimes quite ostensible other times more subtle messages that somehow or other they're wasting space and wasting resources and all the other kind of things.Ìý So I would want to involve freedom from duress in the kind of definition of what makes a patient competent.

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PARRY

And with older people that's a particular problem, isn't it, because they may feel that they're being a burden.

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BOWMAN

I take Ted's point, I think it's a very important point.Ìý Strictly that goes to consent rather than competence, however, consent must be voluntary, but voluntariness in and of itself is not legally part of the test of competence, although clearly these things are interrelated.

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PARRY

Andrew, in today's case there were lots of conversations about treatment between medical staff, patient and the next of kin, but the nature of these conversations is paramount isn't it.

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HARTLE

It is, it's important to convey the information without confusing - using layman's terms, not using jargon.Ìý I think it's also important to be direct and honest, I think it's important to talk about death, the reason patients come to intensive care is that we consider that they're at the greatest risk of dying.Ìý And I think it's important that both the patient and their relatives' expectations are realistic from the start and that they're updated regularly as to the patient's progress and whether their prognosis is getting better or worse.

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PARRY

Do you find it difficult Andrew to have these sort of conversations with patients?

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HARTLE

It's always difficult, you're dealing with issues immediately relevant to their life and death.Ìý I suspect it's a mark of how good we are at what we do as to how well these conversations go.Ìý

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PARRY

Ted, do you find that sometimes people like you are having to be a sort of translator, a conduit, between medical staff and the patient and helping them to understand the issues?

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MORRIS

Yes and that happens quite often.Ìý And there's a kind distinction - people can be told certain things and they will have heard them with their hearing but have they heard them at a deeper level and they may need to be told over and over again in different ways to try and get them to actually ground the information and take it into themselves.Ìý And this seems to me to be one of the advantages of this kind of communication with patients or with relatives being undertaken by in the broadest sense members of a multidisciplinary team.Ìý The multidisciplinary team can look at the needs of the patient and decide what information is going to have to be got across to the patient and the relatives and they can, before they have to do that, decide perhaps who are the best members of the multidisciplinary team to actually do that.Ìý

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HARTLE

The nursing staff are vitally important in all of this, the nurses spend their entire shift with one patient and their relatives and develop a much closer bond and relationship with them.Ìý Inevitably the medical staff tend to have a more snapshot exposure to the individuals and I think unfortunately very often when the intensive care doctor talks to the relatives it's for a specific reason, it's a more formalised interview because something has changed and not necessarily that a decision is being sought but events are coming to a crisis.

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PARRY

What happens there in cases like we have today when the conversations have been had but the next of kin still disagrees with the medical staff about treatment withdrawal, how then do you proceed legally Deborah?

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BOWMAN

Again this is subject to the Burke case that is going on at the moment because the guidelines that inform practice are subject to judicial review as we know at the moment.Ìý However, at present what one looks for is if the patient is no longer competent and therefore no longer able to decide for him or herself and in the absence of a formal proxy one has to look at the patient's best interests.Ìý And at the moment this is broadly interpreted, it's more than simply best medical interest but not quite as tightly interpreted as the notion of intolerability, that has recently been so much discussed in the Burke case.

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PARRY

Deborah, intolerability, what's that?

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BOWMAN

Well the difficulty is we don't know and it may be a different thing to each person.Ìý But in the context of the Burke case the judge in that case stated that best interest should be defined by whether or not something was intolerable to the patient, which many people believe is setting the standard too high and it is too rigid a definition, as well as all the difficulties about it being subjective.

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PARRY

Now this person wasn't actually a blood relative, they were a friend and they had next of kin status, is there a kind of pecking order, to use a dreadful phrase, but a pecking order of relationships to which you would give, Andrew, more weight?Ìý I mean for instance is a wife's opinion more important than a daughter say?

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HARTLE

I think they all have to be taken together and often you do find there's conflict within families and that's, I think, more distressing for them and for us than when the family have a united view.Ìý I suppose subconsciously we would probably take the view of the spouse as the person knowing the person best.

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PARRY

And it's a situation we've seen in the Terry Schiavo case isn't it, because there, as I recall, it was the husband versus the parents.

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HARTLE

That was a very difficult case.Ìý Terry Schiavo was a lady in Florida who suffered catastrophic brain damage after a cardiac arrest.Ìý Now interestingly in that case the Florida law was quite straightforward - he was the next of kin and he was the only person who could make decisions, or in fact could advise the court, which was the ultimate decision maker.Ìý The husband wanted the feeding and nutrition to be withdrawn and receive the court's approval.Ìý Terry Schiavo's parents were strongly opposed to this and in fact lobbied hard together with some very vocal and religious minority groups and achieved both a change in state law and decrees by the state governor and ultimately a special act was passed by the US Congress.Ìý And I think that confuses the issue enormously when politicians become involved in a single person's case, rather than public policy.

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PARRY

The decision to withdraw treatment is always incredibly difficult for both medical staff and of course the family, who are completely traumatised by both their relative's illness and then having to make this sort of decision.Ìý But Deborah when is it legal to withdraw life sustaining treatment?

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BOWMAN

In British law there is a distinction between an act and an omission.Ìý And if treatment that is ongoing or indeed treatment that would be possible but hasn't started yet is considered not to be in the patient's best interest then treatment can be withdrawn.Ìý One can't actively assist a patient to die but one can withdraw treatment when it is clearly no longer in the patient's best interest.Ìý The difficult of course is determining best interest.

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PARRY

Ted, what's wrong with dying?Ìý I mean if it's a natural end to one's life, why do we fight it?

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MORRIS

I think people fight it because they think life on this earth is extremely important but it seems to me that quite often in certain situations dying is the appropriate way of this patient being healed because all has been done which should reasonably have been done.Ìý And so I have no difficult in seeing in certain circumstances dying as an appropriate way of healing this patient.Ìý But an awful lot of people just have a vision of life now and its importance but therefore they're reluctant to see the end of it as being in any sense positive.

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PARRY

Andrew, tell me the practicalities of withdrawing treatment.Ìý When we say withdrawal of treatment, what do we actually mean?

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HARTLE

We may decide to not increase the existing treatment, to cap existing therapy, and let nature take its course.Ìý Which is not withdrawing.Ìý Or we may decide to discontinue some of the therapies, we may discontinue drugs that are maintaining blood pressure, we may decide not to start artificial kidney support if the kidneys fail.Ìý And ultimately we may decide to disconnect a patient from the ventilator which is assisting his breathing, which may or may not inevitably lead to their death.

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BOWMAN

And I think the other issue here, that Andrew's absolutely put his finger on, is that withdrawing treatment doesn't mean withdrawing all treatment, it may mean withdrawing certain types of treatment and indeed increasing other types of treatment - for example, pain relief or sedation.

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PARRY

But the decision to withdraw treatment isn't necessarily the end of the story.Ìý In some cases patients can pass away quickly and painlessly but it might also be that the patient takes some time to die, which is perhaps even more distressing for the family, as they watch the person they love fading away.Ìý Some families that have gone through this harrowing process have called for changes in the law, which would allow doctors to help their loved one to have a dignified death.Ìý But there's a big legal and moral difference between withdrawing treatment, which is seen as passive, and actively hastening someone's death with drugs.Ìý Deborah, tell me what the current position is about assisted death.

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BOWMAN

The current position is unequivocal.Ìý Suicide is not illegal, however, to assist somebody's suicide is illegal, therefore no doctor or indeed clinician or indeed anybody can hasten another's death.

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PARRY

What about if - I think it's called the doctrine of double effect, isn't it, if you give somebody painkillers but they also have an effect on them, for instance if you give people morphine based painkillers they depress their breathing and that in itself may hasten the death? Andrew.

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HARTLE

The distinction here is your intent.Ìý It would actually be unethical to not treat someone's pain, to let someone die in pain would be completely wrong.Ìý We accept that some patients' pain may be so severe that the doses of painkillers we give them, particularly the morphine based drugs, may depress their respiration and may speed their death but it's the intent, rather than the effect.

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PARRY

There are other countries where though - Deborah - where this is legal.

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BOWMAN

Certainly other jurisdictions have allowed for active assisting, notably Holland, Switzerland, the state of Oregon, as I understand it, and I think one state in Australia.

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PARRY

Ted, people of strong religious faith feel particularly strongly about this issue, as indeed do those with disabilities, regarding it as a slippery slope, what's your thoughts on this?

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MORRIS

If people regard it as a slippery slope it inevitably is.Ìý What we've got to do, as in all moral decisions, is hedge it round with swings and counters to make sure that we don't go right down the slippery slope.Ìý Many people with religious views will have different views about assisting death and that would be based upon much deeper views about what status does human decision making have.Ìý To be a religious believer do you have to lie back and let God pull all the stings and all you do is passively react to that?Ìý Or do you have a much more kind of proactive and important role in making decisions about life and death?Ìý I don't think religious people would see assisting death, per se, if that is the primary motive, hastening death, as being elicit thing to do.Ìý And they would want to draw a distinction between that and on the other hand assisting people while they are dying - and it's a difference about motivation.Ìý Is your prime intention to hasten death and that is your absolute prime intention or is it perhaps a secondary effect of your prime intention, which is to assist people and care for them palliatively in terms of pain control and the rest, while they are dying and there's a very real distinction between those two.

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HARTLE

Well the prohibition on doctors assisting patients to die goes back to ancient Greece and the Hippocratic Oath.Ìý And one of the key elements of the Hippocratic Oath was that you would not administer substances which would result in the patient's death.Ìý And of course Greek society actually had a fairly open view on suicide.Ìý I think society's undoubtedly changing, the British Medical Association still remains opposed to physician assisted suicide, although other organisations within medicine are taking a more neutral view.Ìý I think if society takes a view that assisted suicide is now something that it would tolerate, it doesn't necessarily have to be doctors who participate in that.

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PARRY

It's interesting because in Holland although assisted suicide has been available the number of people requesting it haven't in fact gone up, I mean there's not been a sort of huge jump in numbers.

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BOWMAN

Although there are people who argue that even though the numbers quantitively haven't gone up there is some evidence of pressure and perhaps questions about voluntariness in some circumstances and certainly the literature is conflicting on this point and it's very hard to get a clear view on what has happened.

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PARRY

Where does Lord Joffy's proposed bill come into all of this?

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BOWMAN

Lord Joffey is proposing that assisted suicide or to help somebody to die under some circumstances would be lawful because of what Ted has said about it being the alleviation of suffering.

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PARRY

Yes you do hear the most distressing cases of people who plainly care for people intensely, driven to kill and those cases are very distressing and harrowing.

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MORRIS

They're extremely distressing and harrowing and I think what one has got to do in those circumstances, certainly in judging culpability or whatever, is to take into account people's motivation and the desperate situation in which they're trying to operate.Ìý That may not mean that what they've done legally at the moment is right but it will reduce culpability and bring some kind of understanding.

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PARRY

Andrew, how do doctors deal with this and how do you cope when people ask you for help with dying?

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HARTLE

It happens rarely.Ìý So in my own practical experience I've never been asked to actively end a patient's life.Ìý I know that it's a matter of personal conscience and crisis.Ìý There's no doubt that there are doctors out there in the United Kingdom practising today who have assisted their patients' demise.Ìý I think that - that's an understandable act but one that is risky.Ìý I think it's a very dangerous area to enter.

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PARRY

Deborah.

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BOWMAN

Indeed, I'd support what Andrew said and in fact the law has taken a very serious view of doctors who do assist death, notably the case of Dr Cox, which was a case in which he gave a patient an injection of potassium chloride, which has no double effect, and he was convicted of attempted murder.

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PARRY

Okay, now let's move to the area of this programme that seems to cause most trouble and it's the one, I guess, that you don't want to talk about but I'm afraid we have to talk about and that's the one of resources.Ìý This patient has been occupying a precious intensive care bed for over three months already.Ìý In theory he could go on doing so for many months to come.Ìý His medical condition is irreversible but for many other patients, such as those having surgery, a short stay in an intensive care unit may be all they need to give them many more years of healthy life but they may not be able to have it if there are no beds available.Ìý And to put some monetary value on it, this patient's care has also cost over £100,000 already.Ìý Let's just go back again to the consultant's testimony.

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CONSULTANT

There's always in the background the fact that as a result of taking somebody and perhaps going on for very many weeks of care that some might deem to be futile that you're denying other people access to those facilities.Ìý So putting it crudely we probably would have to cancel five major surgical operations per week, major surgical operations for cancer, for example, in individuals that will then have to wait one or two weeks longer but it would cause enormous distress to the individuals concerned.Ìý Or the other possibility is that the operation carries on hoping that that individual won't need the support of intensive care.Ìý We never make bedside decisions on the basis of the fact of who is next in line, however, we're always aware of the fact that there's a limited pool of money available.

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PARRY

So this hospital could be postponing five major operations a week just because of this one patient.Ìý Andrew, you're a doctor on an intensive care unit, how do you manage resource issues like this?

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HARTLE

With difficulty, there's no doubt that the demand for intensive care is increasing, both as society's views about who gets admitted to intensive care have changed in that far more people are considered for intensive care.Ìý And as we've already referred to medical science is improving dramatically and the services we can offer have changed.Ìý Demand always exceeds our capacity to offer it.

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PARRY

And presumably you can't plan because a lot of the beds are required by people for emergencies?

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HARTLE

Yes, as I said before only about 20% of admissions to intensive care are planned elective cases, usually relating to surgery.Ìý And as a generalisation those patients actually probably do rather better and have shorter stays in the intensive care unit but if all the beds are full with emergencies or patients that aren't getting better their operations get cancelled or delayed.

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PARRY

Can you weigh up on some sort of moral scale the value of somebody who's already spent three months in intensive care, who's simply not going to survive with somebody who has just fallen off a ladder for whom intensive care would put them right?

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HARTLE

I think that's a very difficult question.Ìý As a physician I have a duty of care to each individual patient.Ìý But I also have a wider duty of care to the whole ICU and indeed the whole hospital.Ìý One can only make decisions about individual patients judging on their own individual circumstance and I think it's important not to let your knowledge of others influence the decisions you make about an individual.

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PARRY

That must be enormously difficult when you've got other consultants in the hospital begging you to take somebody on to intensive care.

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HARTLE

It can certainly be a challenge and we're all human and are aware of our weaknesses and it's recognising that there are other pressures and trying to not allow them to influence your decision.

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PARRY

Deborah, following the Burke case, if patients can now request, as well as refuse, treatment in their advance directive what sort of implications does that have for resources?Ìý I mean presumably it could be enormous?

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BOWMAN

Indeed it could and I think the Burke case, the focus has been on the ethical principle of autonomy.Ìý Unfettered autonomy in a publicly funded resource constrained service may not be possible and therefore one is trying to reconcile two quite different principles.Ìý The first of individual autonomy and the second I guess the utilitarian approach of the greatest good for the greatest number.

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PARRY

Ted, does age come into this?

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MORRIS

It ought not to unless the age of the patient is part of determining the prognosis.Ìý But age in itself becomes ageism if you have a cut off point and arbitrarily say anybody over a certain age will not be treated for A, B, C and D.Ìý But if their age is part of their assessing of their general physical condition and prognosis which arises out of that and is taken into account when judging what it is possible to do for them then that seems to be not to be ageism but just to be using age as one of the components in the overall treatment decision.

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PARRY
So a pragmatic decision.

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MORRIS

Yes, but to arbitrarily say people over a certain age should not have A, B, C and D seems to me to be ageism.

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PARRY

In this particular case though Ted are we merely delaying an inevitable death at the expense of others whose lives might be saved?

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MORRIS

Well yes and this is one of the problems about individual rights and social obligations, that nobody has an overriding right in healthcare to anything, it's got to be set against what is socially possible in terms of the greatest good for the greatest number of people, and so nobody has an overriding right to that.

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PARRY

Andrew.

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HARTLE

I think recognising, as the intensive care consultant commented, the transition from living to a dying process can be very difficult and particularly with extended stays on intensive care when that point comes we may actually only recognise retrospectively.Ìý And I think we do have a duty to recognise that we are now dealing with someone who is dying and is not going to survive and treat them appropriately.

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PARRY

Okay, thank you all very much and now let's recap our case again before we turn to the panel for their advice.

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Our patient is on an intensive care unit and has been for over three months.Ìý His underlying lung condition is irreversible.Ìý On occasions he has expressed the wish to be allowed to die and indeed has put this in writing.Ìý But the next of kin is contesting his competence and refuses to allow doctors to withdraw treatment.Ìý Where does this leave us?Ìý Let's now ask our panel to sum up and tell us what their advice would be if they were on the clinical ethics committee advising in this case.Ìý Let's start with you Reverend Morris.

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MORRIS

I would advise three things.Ìý The first is for the medical team to work a little more closely with the next of kin and to try and discover what his motivation is for being as strong as he is about keeping this patient going at all costs.Ìý Because people do come with their own motivations and their own histories which might affect the validity of their judgement about things …

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PARRY

And there's a suggestion of that here in that he had had a previous experience with his own parents and clearly has strong views about end of life.

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MORRIS

Yes, I think you've got to do it very carefully and you've got to do it with an element of care and charity so that you don't alienate the next of kin because that would be a worse situation than before.Ìý The second advice I would give is that the medical team have got to come to some decision now about whether they really feel they're just prolonging death or whether there is a chance that life can be improved.Ìý And my third piece of advice would actually be for the clinical ethics committee itself, which is to use this case as part of their cumulative experience because in a sense we move moral sensitivity on by in a sense case law, so they need to monitor that.

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PARRY

Andrew Hartle.Ìý

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HARTLE

I think Ted's three points are well made.Ìý I think one option which the team may not have considered will in fact to be to get a second independent opinion from another specialist, either in the hospital or perhaps from another hospital and certainly we've found that quite helpful in our own intensive care unit when such conflict has arisen.Ìý Ultimately the clinical ethics committee has no responsibility, it's the clinicians who are responsible for the patient's care and must make their decision.Ìý It's going to be very difficult.

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PARRY

Deborah.

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BOWMAN

I absolutely agree with both Ted and Andrew and I think the only thing I would add is that the issue of autonomy has to be fostered and part of the function of the clinical ethics committee is to assist clinicians with strategies for doing this, i.e. to exploring previously held values and the expectations on which those are based.

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PARRY

Thank you very much for all of that, we've covered an enormous amount of ground and some of it really is very, very difficult indeed.

Ìý

Now let's ask our audience, if you were on this ethics committee what would your advice have been in this case?Ìý If you would like to let us know what you think visit our website at bbc.co.uk/radio4 when you get there go to Inside the Ethics Committee on the programme A-Z.Ìý If you prefer you can call us with your comments on the Radio 4 information line, 08700 100 400.Ìý And by the way thanks to all of you who e-mailed following last week's programme on the ethics of temporary transplants.Ìý You can read some of the responses on our website.

Ìý

So finally, what happened in the real case?

Ìý

The next of kin accepted that the patient was dying.Ìý The patient's ventilator was adjusted so it was only supporting his occasional natural breathing, rather than supplying artificial breaths.Ìý Over the following 48 hours the patient slipped into a coma, eventually stopped breathing and died.

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ENDS