The fiery debate about the Kerry Wooltorton case has been rekindled over at Dr Grumble’s blog:
There, a lawyer (Marjorie) has entered the informal discussion. This is welcome, because this suicide has opened up a whole supermarket of cans containing legal, ethical, clinical and moral worms. These worms, having been set loose following the rare and complex circumstances surrounding this case, are liable to be found wriggling around in more straightforward and common situations, if the conclusion reached in the Wooltorton inquiry sets a legal precedent for doctors regarding the future management of patients who have attempted suicide.
This case has several facets.
Three of the most important are the role of (1) The Advance Directive, (2) The interplay between Consent, Capacity and Self Determination, and (3) The legal relationship between the Mental Capacity Act and the Suicide Act.
THE ADVANCE DIRECTIVE
The fact KW carried an advance directive indicating that she did not want to be treated, but only to be made comfortable while she died, has been raised in some of the discussions.
However the KW case was not about advance directives. The AD was irrelevant since the patient was conscious. She was in a position to refuse treatment. The case is about imposing treatment on an un-consenting adult patient and whether if so doing would render the doctor in charge guilty of assault.
That is what the lawyers say.
The Witch Doctor can grasp that.
So, forget about the AD. That is another debate for another day.
THE INTERPLAY BETWEEN CONSENT, CAPACITY AND SELF DETERMINATION
This is crucial but extremely complex. Ignore it for the moment.
THE LEGAL RELATIONSHIP BETWEEN THE MENTAL CAPACTY ACT AND THE SUICIDE ACT.
It seemed to The Witch Doctor that a legal error may have been made, because of a clause in the Mental Capacity Act. There appears to be a conflict between the MCA and Suicide Act. On Page 6 of The Mental Capacity Act 2005 there is something called a “declaratory provision” which specifically says:
“Scope of the Act
For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).”
It seems to me “The Scope of the Act” is the attempt of the law to avoid a situation such as happened in Norwich. i.e. The Suicide Act over-rides the Mental Capacity Act.
Looking at the wording of the Suicide Act 1961 (c.60)
“2 Criminal liability for complicity in another’s suicide
(1)A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”
The words used seem to have many shades of grey. These are complicity, aids, abets, counsels, procures.
The greyness means that individuals may have different ways of interpreting these two acts. For The Witch Doctor, it seems clear that the Suicide Act always trumps The Mental Capacity Act. i.e. the Mental Capacity Act was not addressing suicide and to assume it did do so was not only misinterpreting its intention, but was placing it at odds with The Suicide Act.
In the initial article by Sheila McLean, The Suicide Act seemed to have been ignored. In fact even the very word suicide was avoided in her summary of the legal situation. Check it out for yourself. I wondered if this omission was intentional.
There is also the debate as to whether omitting to do something is a positive act or whether it is an act at all.
The Witch Doctor disagrees with this.
Marjorie (the lawyer) contributing to the discussion in Dr Grumble’s post states that omission is an act. It is an act of omission as opposed to an act of commission.
The Witch Doctor agrees.
However, Marjorie disagrees with The Witch Doctor’s suggestion that there may have been a legal error or oversight regarding the content of The Suicide Act over-riding The Mental Capacity Act in the KW case.
The following seems to be the key to the reason for the view it is not a legal oversight and could be the reason why most lawyers who have commented on the case seem to be in agreement.
“As a general rule, our legal system does not treat acts of omission as criminal acts”.
However, The Witch Doctor is still of the opinion that if she omits to treat a patient in order to save a life, and she knows that her intervention will save the life or has a high chance of doing so, then choosing not to intervene is a positive act following a definite, deliberate decision for which the doctor must take full responsibility. This responsibility takes on a particular prominence if The Witch Doctor, her medical peers, her patients, and society at large are of the view that one of the main roles of a doctor is to save life. If the outcome is death, she must take full responsibility for that. The Witch Doctor would then be complicit in ensuring the fatal outcome, because she knew how to avoid it, had the facilities to do so, and in addition was the consultant responsible for the care of the patient. The circumstances in a suicide case such as this are quite different from those surrounding a terminally ill patient where a doctor does not have the advantage of knowledge or capability of ensuring the patient does not die.
So, regardless of the law, regardless of the stance taken by philosophers and medical ethicists, The Witch Doctor believes that she would have been responsible for her death because she was responsible for her care. Of that she has no doubt. She therefore believes she would have been complicit in the death.
It is the word – play surrounding “complicit” that is important.
It is likely that someone cleverer that The Witch Doctor could find a way of trying to relieve the Witch Doctor of this burden of responsibility and complicity by introducing a different meaning to the vocabulary above.
But it won’t wash. The Witch Doctor will regard this simply as a facile play upon words.
So, believing herself to be complicit in the suicide, she would consider herself in breach of The Suicide Law.
And she would have to plead guilty.
But it seems she would not have been charged on this particular act of omission because legally the word “complicit” seems to have a different meaning within the legal profession to the other word “complicit” that The Witch Doctor uses on a day to day basis.
(It is interesting that if The Witch Doctor’s act of omission had been not to disclose the driver of her car when an offence was committed, she would have been charged and probably found guilty).
Conversely, if she had not allowed the patient to die, she may have been charged with assault.
But she would have pled innocent because the Mental Capacity Act was not drawn up with this situation in mind but The Suicide Act was, and she did not breach it.
Would she then have been found guilty?
And if so, what would have been the likely sentence?
a red apple ……………………
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