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Can Saving a Life be the Wrong Thing to Do?

2 Oct, 09 | by Iain Brassington

Doubtless many of you will have heard by now of Kerrie Wooltorton, who, apparently depressed by her fertility problems, drank anti-freeze, called an ambulance, and handed a living will to staff at A&E. Her story is reported by the Telegraph under the headline “Suicide woman allowed to die because doctors feared saving her would be assault”

Miss Wooltorton, 26, who was suffering depression over her inability to have a child, drank poison at home and called an ambulance. However, she remained conscious and handed doctors a letter saying she wanted medical staff only to make her comfortable and not to try to save her life.
Doctors said her wishes were “abundantly clear” and although it was a “horrible thing” there had been no alternative but to let her die.
They feared they would be charged with assault if they treated her because they believed she understood what she was doing and was mentally capable of refusing treatment.

It is, by anyone’s standards, an incredibly sad case – and one can only speculate how hard it must have been for the doctors treating Ms Wooltorton to accede to her request.  I think that, from a legal point of view, what they did was straightforwardly correct (and, as the BBC tells it, the coroner thought so too: ”Any treatment… in the absence of her consent would have been unlawful”).  Wooltorton was competent at the time, and her refusal of treatment ought to have been treated as definitive while she was still conscious.  And while the obligation in respect of incapable adults is to act in their best interest – which would have meant intervening to save the patient’s life in many cases – the fact that Wooltorton had so recently and so capably made it clear that she did not want intervention, leads me to suspect that there’s not really room to doubt that her refusal ought to stand.

(The Telegraph goes on to suggest that “[this] is thought to be the first time someone has used a living will to commit suicide”, which I think isn’t quite right; she used a living will not to have her suicide bid stymied; this isn’t quite the same as suicide by refusal of treatment.  But that’s a minor quibble.)

From an ethical point of view, I think that the doctors did the right thing in this case – but this is because it’d've been hard for them not to.  By this, what I mean is that the story tells us something – actually, a couple of things – important about the nature of moral decisionmaking.

Primary among these things is that moral problems are problems.  This sounds tautologous, but that doesn’t mean that it’s a trivial statement.  It’s worth remembering that moral deliberation comes into its own not when deciding whether or not to do the right thing – what kind of question would that be? – but when deciding which of a range of differing and exclusive options, each of which has a claim to be right, good, or justified, ought to draw us.  Moral dispute, in this picture, is not about criticising people for being immoral, but for having made a mistake in their evaluation of which option is the most pressing in a given situation.  For example, the doctors in this case had a very good moral reason to intervene based in beneficence, and a very good moral reason not to intervene based in self-determination.  Quite possibly, given Ms Wooltorton’s history of suicide attempts, doctors would have wondered whether it was really worth striving to save her.  (They might disavow such thoughts, but I think that there’s nothing unforgivably unworthy about entertaining them; what counts is whether they’re given proper consideration.)  For all these options, and for more besides, a defensible case could have been made.  The medics had to wade through a number of possible options they’d've identified, each of which had some kind of claim to be the right one.  Saving lives could be the right thing.  Letting someone die could be.  And they had to perform this moral task against the clock, too.

How we choose between these candidates will often be formed by our methodological and metaethical commitments.  One could be rationalist about decisions, or one might be more inclined to allow emotional considerations to play a part, and each of these options might generate an answer, or a kind of answer.  But there’s still a problem to solve about which approach one should choose and – more importantly – what the standard is by which to choose.  Bluntly, a lot comes down to choosing between the right and the good, because though the good thing and the right thing might be the same in many cases, there’ll also be times when they come apart.  (For example, a doctor in the Wooltorton case might think that intervening would be optimific, but that abiding by the refusal would be right.)  Yet it’s hard to see how we can say that one ought to be concerned for the right over the good (or vice versa) without either begging the question (“It’s good to be good”) or undermining our own position fatally (“You should be concerned with goodness because it’s just the right conern…”).  It’s also tempting to think that the two might be incommensurable anyway – in which case, a preference for rightness over goodness (or goodness over rightness) looks to be the kind of thing that can entertain arbitrariness.  And that looks like an itchy position to occupy.

Now, we might think that this is precisely where guidelines and principles come into their own – they help us cut through the noise.  However, the point here is that following some kind of decisionmaking rubric would not have solved the moral problem – it’d've meant pretending that there was no such thing, and that you can determine what to do by putting all the variables into a morality machine and turning the handle.  Moreover, guidelines and principles have to be justified somehow, so the puzzle has only really been deferred.

And I think, too, that we ought not to lose sight of the fact that Wooltorton’s story is a story about people.  Adverting to guidlines, principles and rubrics might be an “efficient” way of doing ethics, but it’s also banal.  The doctors who saw her in A&E were in a tragic situation, in the truest sense.  And there’s a sense in which trying to be dispassionate about a tragic situation does nothing but belittle it.

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  • Dr. Luk Ho

    As a practising psychiatrist in England with extensive experience of managing patients with depression and personality disorder, and of applying the Mental Capacity Act 2005 (MCA) and the Mental Health Act 2007 (MHA) on a day-to-day basis, I would like to contribute to the debate.

    Under s25 of the MCA, an Advance Decision (AD) refusing treatment is only binding if it is valid and applicable. I have some reservation as to whether Ms. Wooltorton had full capacity at the time of drawing up the AD forbidding treatment for an overdose or ingestion of a toxic substance. In the newspapers, Ms. Wooltorton was quoted as saying that she called an ambulance because “she did not want to die alone and in pain”. This statement, along with the efforts she made to draw up the AD, lead me to believe that the act was associated with serious suicidal intent. It could be argued that the suicidal intent was a manifestation of her mental disorder which would in turn impair her ability to weigh information in the balance at the time of writing the AD, thus rendering it invalid.

    Even if we were to accept the AD as valid and applicable and Ms. Wooltorton had capacity to refuse treatment at the time of her presentation to the hospital, treatment could also have been administered under the MHA. Under s28 of the MCA, the MCA provisions could be overridden if the proposed treatment falls under the regulation of Part 4 of the MHA . Therefore, the AD could be quashed by detention under s2 or s3 the MHA, which brings the patient under the auspices of Part 4 of the MHA (allowing treatment without consent, notwithstanding the presence of capacity). Based on Ms. Wooltorton’s existing diagnosis, recurrent previous history of self-harm and the seriousness of her current suicidal intent, it would not have been difficult to argue that she was suffering from a mental disorder of a nature and degree which warrants detention in hospital in the interest of her health and safety.

    It is a common misconception that no treatment for physical conditions can be provided under the MHA. However, there is legal authority to approve treatment for physical conditions under the MHA if there is a causal link between the physical condition and the underlying mental disorder. Treating weight loss in anorexia nervosa is a prime example. In Ms. Wooltorton’s case, it could be argued that the ingestion of the toxic substance is a symptom or manifestation of her mental disorder and therefore falls under the scope of medical treatment under the MHA.

    On a more serious note, could the professionals who were involved in setting up the AD and those who decided not to treat her in hospital, have unwittingly assisted in her suicide, contrary to s2 of the Suicide Act 1961? My biggest concern with this case is that it could lead to “assisted suicide by the backdoor”. I am well aware of the euthanasia debate about whether it is ethical to use the distinction between “act and omission” to justify withdrawing or withholding life-sustaining treatment in incapacitated terminally ill patients. Could professionals be legally permitted in the future to allow patients to commit suicide “in their best interests”, because it is the patient who commits the “act” and the professionals merely “omit” treatment? Other fundamental questions also emerge. Is it ever possible for a person wishing to commit suicide to have full capacity? Where does this all sit with the state’s obligation to protect life under Article 2 of the European Convention of Human Rights, bearing in mind the outcome of the Diane Pretty case?

    Dr. Luk Ho
    Consultant Psychiatrist and Lead Clinician, Fermoy Unit, Queen Elizabeth Hospital, King’s Lynn

  • Keith Tayler

    It is not possible from the information that has been published to gauge the state of mind Kerrie Wooltorton was in when she wrote her advanced directive, when she drank the antifreeze, and when she arrived at the hospital. It would also appear that the doctors in A&E could not have known her state of mind at any of these stages.

    They might have had reason to believe that her suicide ‘attempt’ was a cry for help because she had called an ambulance and had made nine previous ‘attempts’. Nine attempts using the same method is not a sign of a reasoned mind, and nor was her behaviour prior to her death. Even without knowledge of her previous attempts, doctors cannot permit a patient to die just because they wave an advanced directive at them.

    As I say, we do not have the facts so it is difficult to judge. But from what we do know it would appear the doctors did not act in the best interest of their patient. Their worries about being charged with assault do not appear to carry much weight. She called an ambulance to go to A&E. The reasons she gave for this behaviour and the reasons she expressed in her advanced directive do not change the fact that she called an ambulance to go to a place where she expected to have the poison removed from her stomach. Did she ‘really’ expect the medics to respect her living will? Actions often do speak louder than words.

    Again I do not see this sad event immediately in moral terms. For sure it is a moral ‘problem’, but before we get there we would need to know a great deal more about Kerrie Wooltorton and the events prior to her death, which is of course not possible. I agree with you that such events cannot be reduced to ‘normalised’ moral problem-solving. But lets not jump to having any kind of moral dispute about “having made a mistake” until we understand the situation and the mistake(s). (I feel a touch of Wittgenstein coming on so I better stop)

    You may feel I am being dispassionate about a tragic situation and thereby belittling it. I am not belittling it, but I do tend to the dispassionate when considering these situations.

  • Dr. Luk Ho

    The case is attracting a lot of media attention. It has prompted the Health Secretary Andy Burnham to suggest that the law on advance decisions may need to be changed.

    Those who have defended the doctors’ decision to accept Ms. Wooltorton’s advance decision have adhered to the principle that no competent person can be treated medically without consent. This principle is undoubtedly true for treatment of medical conditions uncomplicated by mental health issues. But I am quite surprised that very few people have commented on the possibility that Ms. Wooltorton’s life could have been saved by using the Mental Health Act as I had suggested in my first post.

    Returning to the “assisted suicide” debate, I wonder whether professionals could be allowed to deploy the “double effect” defence in addition to distinguishing between an act and omission – i.e. although the outcome of completed suicide was forseeable, the intention was actually to respect the patient’s right to autonomy.

  • Iain Brassington

    As regards Wooltorton’s mental health, though, there’s no reason to think that, at the time, she was in any way incompetent or mentally ill – so I’m still not clear on the legal (or moral) basis for any claim that it would be OK to use the MHA to intervene. There’s no reason to think that a desire for death has to be an indication of a mental illness – in some cases, it could just be taken at face value.

    I think that there’s an implicit pro-life stance in a lot of what you’re suggesting; I think I might feel another post coming on when I get the chance over the next few days…


  • Keith Tayler

    Again we do not know the facts, but, as I said above, it would on the face of it appear that Ms Wooltorton’s behaviour prior to her death was irrational and she did have a history of ’attempted’ suicide using the same method during the preceding year. How many ’attempted’ suicides using the same method would you take to be a sign of mental illness? As I have said, given that she could not reasonably expect that the medics would respect her AD, her last ’attempt’ at suicide did not appear to be the actions of a competent reasonable person.

    From the limited information we have, there would appear, as Dr Luk Ho suggests, no problem in using the MHA to set aside the AD. I avoid rights where possible, but have long maintained that treatments do not trump rights. However, I do not believe Ms Wooltorton’s rights would have been infringed if she had received treatment. I believe that her AD was not witnessed and was therefore invalid under s. 25(6) of the MCA2005. The content and style of her AD concern me. She is, given her history, obviously very confused about the effectiveness of the method of her suicide, and she says there are “loads of reasons” for her action that the medics “will not understand.”

    Not sure what you mean by “pro-life”. I do not believe that Dr Luk Ho nor I have been particularly “pro-life” as it is usually used in these cases.

  • Iain Brassington

    By the pro-life point… well, part of the post I have planned involves unpacking that. Very loosely, though, I think that there is a cultural tendency to think that death is always a failure and something to be avoided: given a choice between life and death, life always comes up very strong. I’m just not sure what might back that supposition, though.

    As for the facts in this case: I’m not sure that Wooltorton’s history makes all that much difference; if she’s capable of refusing treatment now, then that’s all that matters. Whether she has been, or is, depressed is neither here nor there, and I’m not sure that any number of suicide attempts is necessary or sufficient to establish a mental illness: sometimes one will be enough, sometimes no number would suffice.

    Using the MHA to averrule an AD might be possible iff the putative mental illness and the AD can be linked and linked in the right kind of way. There’s no evidence for that from what I can see. Moreover, I think that your point about witnesses and the validity of the AD is a bit formalistic: granted that the law has to be cautious on these matters, I think that there’s still room to say something about the spirit of the law, and the near-certainly that the provisions of the law don’t exhaust the moral considerations that lie behind drawing up any kind of AD at all. Extra-legistlative ADs could still be morally compelling (and, perhaps, would be protected by common law – though that’s a bit more speculative, of course).

    Nor is confusion about the effectiveness of a method all that important: that’s a matter of facts, but autonomy and competence strike me as being more procedural. (Besides: I can see the sense in someone deciding that they don’t want their body found unexpectedly, that they want to die in reasonable comfort, and thereby choosing a method of suicide that they believe will give them the kind of death they’d prefer – and if that means something sufficiently slow-acting to get to hospital, then fine.)

  • Keith Tayler

    No – we will never agree. “….given a choice between life and death, life always comes up very strong.” This is not a “supposition” that needs backing up. As with the existence of an external world, there are some ’beliefs’ that do not require any philosophical theorising; indeed, it is a scandal of philosophy to suggest that they do. That does not mean we have to fear death and have silly dreams about living for ever.

    You appear to be saying that there is no way of identifying mental illness. I am certain it is often incorrectly identified, but that does not mean it does not exist.

    Determining whether someone is capable of refusing treatment is the problem. Not sure what you mean by “if she’s capable of refusing treatment now, then that’s all that matters.” No one could convince me in the instance of “now” that they were capable of refusing life saving treatment. I would need to know a lot about them before I could be reasonably sure they were ‘capable’ of refusing. As with all discourse, this process is an assessment of ‘truthfulness.’ Past and present behaviour, mental history and present state of mind are part of this assessment. Assessing someone who is refusing treatment might be a extreme version of this process, but I am certainly not suspending my usual discursive discourse procedures when confronted with someone attempting suicide. If they are confused and saying they have “loads of reasons” to do something that I “will not understand“ I would begin to have my doubts about their state of mind.

    My point about a witness is not just formalistic. If the ’AD’ was not properly witnessed it was not an AD under the meaning of the MCA. You appear to be suggesting that this ‘life and death’ letter, that has not been witnessed, should be legally enforceable (that does go against the spirit and the letter of the law). I do not accept that “Extra-legistlative ADs could still be morally compelling.” In order for them to be this they would still need a high degree of ‘proving,’ indeed, if they were not witnessed or worded in accordance to the MCA they should require a greater degree of ‘evidence’ before being accepted. (If someone is incapable of getting such a vital document correct, it must raise questions about how capable they are).

    You appear to have set the level of evidence at zero. Assessing the evidence is difficult and mistakes will be made, i.e. some ‘capable’ people will be kept alive against their wishes. But, as in other areas of ethics and the law, that is the problem of evidence. We free the guilty because we set the level of prosecution evidence high to protect the innocent from wrongful imprisonment.

    Anyway, we are not going to agree about this because we are starting from completely different positions.

  • Dr. Luk Ho

    In my view, doctors do generally adopt a “pro life stance”. After all, the main focus during their medical training is saving life, not ending it. Doctors who oppose euthanasia and assisted suicide could have anxieties about the public trust in the profession being undermined if they end up taking on a “part-time executioner” role, despite the growing emphasis on patient choice and autonomy.

    I am still of the view that the MHA could have been used in this case, given the available facts. I guess Iain’s counter-argument would then be that the law itself is unethical and immoral. A whole new debate could be opened about whether people suffering from mental illness are being discriminated against, because of the existence of a separate piece of legislation regulating treatment of mental disorders, which enforces treatment without consent even to a capacitous person, in stark contrast to other medical conditions.

    Another dimension we have not yet explored is resource allocation. Is the increasing discretion being conferred to doctors by the courts to decide on withdrawing or withholding treatment from the terminally ill or difficult to treat cases also partly driven by the recognition that the NHS only has finite resources and therefore utilitarianism (prioritising resources to “treatable” cases for the greater good) might be another important consideration? The proposed cuts to NHS funding resulting from the economic downturn could bring this issue into sharper focus.

  • Iain Brassington

    What’s at issue here, though, isn’t ending a life: it’s allowing a life to end – I take the rather unfashionable view that the two are morally and logically distinct. I’m not sure that the public worry concern holds much water either way, though: doesn’t it only apply, at the absolute strongest, to non-vol or involuntary killing? (I wouldn’t have thought that the argument is that strong, as it happens – but I’m happy to air it.) Moreover, the evidence doesn’t support the erosion of trust claim: look at Holland, Belgium and Oregon.

    I don’t think I’d say that the law is immoral: just because it doesn’t exhaust all the morally defensible alternatives, it doesn’t follow that it’s immoral: that’d be a false dichotomy. (I don’t want to open a parallel debate about the MHA here, either…)

  • Dr. Luk Ho

    I agree with your distinction between “allowing a life to end” and “ending life”, which is not unfashionable at all, since existing case-law certainly supports your view. The “act and omission” distinction has been deployed by judges to allow doctors to withdraw life-sustaining treatment (e.g. the Tony Bland case). Obviously actively ending a life (e.g. by lethal injection) is illegal in this country, even if it is at the request of the patient. Not so in Holland, Switzerland, Oregon etc!

    Leaving aside the MHA (the aims of which appear diametrically opposed to that of the MCA, but that’s a different story as you say), it would be very fascinating to see how the law develops in relation to assisted suicide following this case. As mentioned in my earlier posts, I wonder if the “act and omission” distinction and the “double effect” doctrine will be extended to allow doctors to withdraw or withhold the treatment of the consequences of a suicide attempt (as opposed to a “naturally” occurring illness)? In the case of incapacitated patients, patients could be allowed to die “in their best interests” if they are regarded as having an “untreatable” condition. In the case of patients with capacity, even if the forseeable consequence is clearly death from successful suicide, non-intervention could simply be justified on the grounds of respecting autonomy.

  • John Coggon

    Forgive the intervention – I’m delighted to see Iain finding support in case law and statute.

  • Iain Brassington

    Whut? Eh? I did?

    *reevaluates whole life*

  • Pingback: Update: A right to live : A right to die « The Witch Doctor

  • Austin Elliott

    Don’t know if you’ve seen it, Iain, but the most extended discussion of the Wooltorton case as the practising hospital clinicians see it is over at “Dr Grumble’s” excellent blog. Three of his four posts in October relate to the Wooltorton case, and the discussion threads after them are particularly interesting.

  • Iain Brassington

    Ooooh – thanks for the link. I think that Dr G is misguided, for the simple reason that there’s a difference between abetting and allowing suicide… but it’s quite an interesting blog, innit?

    *adds to RSS*

  • Pingback: Suicide, Capacity, Self-determination, Paternalism, Persuasion « The Witch Doctor

  • Dr No

    Just to let you know that most of the standing by (an act of omission) = aiding and abetting comments came from me, Not Dr G. There is further comment on my blog at The Oxygen of Morality, particularly if the comments further down the post.

    I remain of the view that, on balance, the NorDocs did aid and abet.

  • Iain Brassington

    An act of omission? A what, now? Isn’t something either an act or an omission, either of which may be laudable, neutral or blameable?

    (You’re not the first person I’ve come across to use the formulation, but it hurts my head every time I see it…)

  • Dr No

    An act is an act. To act ie decide not to do something is as much an act as to decide to do something, all the more so when the act in question has serious consequences.

    Picture yourself at the roadside of a bad RTA. A woman is bleeding to death. You choose, for whatever reason, not to call the emergency services. You have committed an act of omission: chosen not to do something you could have done. The woman dies. You had a choice, and took a path, and the woman died. Are you not complicit?

  • Iain Brassington

    For the sake of your example, I’m assuming that the RTA decision is between ringing for an ambulance and doing nothing of comparable worth. Of course I’d have decided not to ring. That’s it, though: it’s a negative. I have NOT made the call. What you’re saying, though, is that there’s a different kind of action – a positive one of not-ringing – which I have chosen. That’s meaningless. It adds nothing to the picture except linguistic clutter. (“You committed an act of omission”? Eh? What about “You didn’t act?”. I don’t see what that more simple formulation misses.)

    Now, it’s obvious that, at times, an omission can be blameable. But it isn’t always so. In the Woolterton case, I’m not sure that there was anything too blameable about not intervening. Even if there was, I think that there was likely to be something potentially blameable either way. In your RTA example, there would be something blameable – but even there, an accusation of complicity seems to be very wide of the mark.

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  • Dr Grumble

    Perhaps Iain you are sure that there was something just a tiny little bit blameworthy? That tiny element of blameworthiness led to a death. Which actually makes it more than a little blameworthy don’t you think?

  • Iain Brassington

    I’m assuming you’re talking about the Wooltorton case here, rather than Dr No’s RTA.

    Your comment is unclear. You seem to be saying that not treating was blameworthy, that it led to her death, and that this death contributes to the blameworthiness. I’m not clear whether you mean that non-intervention would be blameworthy because she died or notwithstanding her death. Maybe you mean both – maybe you mean that the blameworthiness is magnified by death – but in that case, you need to provide two clearly separate arguments, each of which has to be coherent with the other. (You can’t be a deontologist for one and a consequentialist for the other, for example.)

    But that aside: do I think that not treating led to Wooltorton’s death? No. Drinking anti-freeze did that perfectly adequately. Not treating meant that the wheels carried on turning, that’s all. Do I think that it’s blameworthy not to prevent a death? Sometimes. We should try to rescue drowning children unless the risks are unreasonably high. Do I think that not preventing Wooltorton’s death was blameworthy? On reflection, no. Certainly there’s a moral problem there – which is as much as to say that there’s a prima facie reason to rescue – but I think that, broadly speaking, the correct solution to the problem was reached. Do I think that the outcome makes a difference? No.

  • Dr No

    The use of “act of omission” isn’t linguistic clutter, it is a deliberate, intentional use, intended to imply equal weight to “act of commission”. While they may indeed differ in that one may be positive (doing) and the other negative (not doing), they have similar if not equal weight because of the consequences.

    I suspect Mr B has an agenda on this. He includes amongst his research interests autonomy, euthanasia and the non-therapeutic use of medical technology (sounds like a pretty lethal cocktail to me). At the same time, by his own admission, he has no experience of medicine or law, (but nonetheless found it hilarious to teach medical students on these subject, a degree of recklessness which if committed by a doctor would land them in serious trouble).

    It does seem a bit disingenuous for an ethicist with no experience in the field (double meaning intended) to opine “From an ethical point of view, I think that the doctors did the right thing in this case”. Mr B is of course perfectly entitles to express his views, just as we doctors (a number have commented here) are entitled to express our views. This is an important debate. Long may it continue.

  • Pingback: The Kerry Wooltorton debate « The Witch Doctor

  • Iain Brassington

    Dr No –
    they have similar if not equal weight because of the consequences
    That seems to be potentially question-begging (which you indicate when you say that the intention is to attribute equal moral weight. Dice-loading, anyone?). I made it perfectly clear that I don’t think that an appeal to consequences makes any moral difference. There are times when action and inaction are morally equivalent; times when acting is worse than not doing so; times when not acting is worse.

    So here’s the deal: not acting to save a life is prima facie wrong. Not abiding by a competent refusal of treatment, even when it’s life-saving, is also prima facie wrong. And it so happens that I think that the second wrong trumps the first. Note I’m talking about wrongness, not badness here. It so happens that this is the line taken by the law. I think that a law that didn’t follow this line would be in need of reexamination: it’s the line the law should follow.

    So the question is this: was Wooltorton competent at the time of her AD and suicide? And I’ve not seen anything to make me doubt that she was.

    There is no getting away from the fact that this is a sad and potentially distressing case. But if you think that the right moral decision is always going to be the one that generates sunshine and bunny rabbits, you’ve got a mistaken view of morality.

    Now, back to your reply:

    He includes amongst his research interests autonomy, euthanasia and the non-therapeutic use of medical technology (sounds like a pretty lethal cocktail to me)
    Pssssstttt… If you look over there, you’ll see a well you forgot to poison.

    It does seem a bit disingenuous for an ethicist with no experience in the field (double meaning intended) to opine “From an ethical point of view, I think that the doctors did the right thing in this case”
    Ummmm… to the extent that it’s possible to have experience in ethics at all, isn’t it possible that, y’know, being an ethicist might provide it? That it’s knowing your way around an argument that counts? Ach, screw it: I have no idea what you’re on about with this.

    I made a flippant point in my biog on this site about my early teaching experience. It’s true, I have neither medical nor legal qualifications – but I know enough about the law to be able to guide undergrad medics through what they need to know (and I know where to look and whom to ask if there’s something that needs clarifying) and I have no idea why medical experience is a pre-requisite for talking about ethics to medics. Had I been attempting to teach medicine to medics, you’d be right; had I been attempting to teach them to be lawyers, the same’d be true. But you don’t need a law degree to be able to say that Bolam means one thing, Sidaway another, the legal status of an Advance Directive is this, and the ECHR has these implications. In just the same way, a medical lecturer might find himself giving classes on topics that aren’t in his comfort zone, but about which he knows enough.

    I will alter the biog at some point – maybe when I’ve got something more interesting to say.

  • Dr No

    Iain – Thanks for your reply.

    I’m not, as you know, an ethicist, but it does seem to me that their must be a case for allowing moral weight to be determined partly or even wholly, by the consequences of a decision and subsequent action or non-action. I suppose what I am saying is that it doesn’t make sense to divorce cause and effect.

    In the case of allowing someone to die, the consequences are about as serious as they get. The person goes down a one way street to death.

    The AD is, in my view, a red herring, because KW was able to communicate when she arrived in casualty. The question here is whether she had capacity at the time she declined life saving treatment.

    I think it is worth rehearsing the test of capacity here. First, you have to have a disability of mind. KW, by all accounts, had depression and a personality disorder. Then there is the four stage test: understand, retain, weigh and communicate. It seems likely that KW could do 1,2 and 4. The crunch question is over 3 – could she weigh?

    The facts are that she had depression; she had a personality disorder, she had a history of several failed overdose attempts; and she had asked to be taken to casualty. Depression, as you will know, alters thinking; the glass half full becomes the glass half empty. And she had good reason to be clinically depressed: she was desperate to have children, but was almost certainly infertile.

    I cannot see how the presence of any of these features, let alone all of them, but particularly depression, cannot fail to raise a serious question about capacity. I just don’t understand how you can assert, as you have done several times, that you have “not seen anything to make me doubt she was [capacitous]” given the presence of any and all of these features.

    And so I find myself back in the position of reasonable doubt (about capacity), and that because the consequences of non-action (not acting to save her life) are so serious, I consider the proper thing for me, as a doctor (with all that implies), to do is save life first and then ask questions later. If it turns out she does have capacity, then so be it: she can die another day, but in a planned and considered way, in the presence of consenting doctors if she and they so agree, and away from the heat and uncertainty of the emergency room.

    Allowing her to die does nonetheless have a certain neatness to it. It destroys the evidence.

    And Iain – forgive me for having a poke at you. Nobody forced you to say what you have said about yourself, but there it is in the public domain. You are of course free to take as many pokes as you like at me – just as long as we continue this important debate and try and make some definitive sense of it.

  • Iain Brassington

    OK – let’s get a couple of things out of the way. First, having a poke at me is fair enough. Christ, I’d return the favour if you’d make a few self-deprecating jokes as well… :)

    Second – as to the capacity question: a history of depression, and even depression at the time, doesn’t mean that Wooltorton lacked capacity. It might give us a reason to look closely at her refusal of consent, but, as I understand it, the medics at the time had no especial reason to suppose that she was lacking in capacity. That being the case, I think that it’s reasonable for the starting assumption to be that a person is capacious – for the burden of proof to be on those who deny that she had capacity. And we’re talking some reasonable standard of proof here, not just a hunch.

    The more interesting questions, I think, come in the first half of your reply. For one thing, I see nothing problematic about separating the moral quality of an action from its consequences; non-consequentialism (or even anti-consequentialism) is perhaps fairly unfashionable in bioethics, but it’s certainly the account of choice of a sizeable minority from various different and bickering traditions.

    But even if you’re a consequentialist, simply to point and yell, “Look! Death!” is to miss the point, because not all deaths are bad deaths. Not all are undesirable. It is possible for a person to decide that his or her life is just not worth the candle. In these cases, by what standard are we to tell them they’ve made a mistake? Indeed – how would it be possible to make a mistake? It’s not like they’ll ever regret it. This sounds flippant, but it’s actually quite important: if we’re talking about the badness of a death (rather than death itself), we have to be sure that we’re not projecting our own preferences onto the would-be dead person and our own regret at their death onto the recently dead. They can’t regret it, and even if they could, they might very well not. What’s left is our regret, which is quite possibly neither here nor there – and if it is pertinent, then there needs to be an argument about why and to what extent.

    I’m putting together a new post on this sort of question, which I’ll try to post in the next couple of days (though it’s painfully slow at the moment: I keep getting distracted by my day job – I think that’s really not on, but there you go…).

  • Dr No

    Dr No takes himself far far too seriously to ever consider making self-deprecating jokes.

    I fully agree that depression doesn’t automatically mean someone lacks capacity. I also agree (and it is in the Act) that there should be a presumption of capacity. I also accept (and this is also in the Act) that a “wrong” decision (in the opinion of the assessor) doesn’t prove lack of capacity.

    I also fully agree that not all deaths are bad deaths. I have mentioned before what I learnt at medical school (and have continued to practise): to save life, but not to strive officiously to keep alive; that there is a time for life, and a time for death.

    The thing about capacity is that it is time and situation (as in decision to be made) specific. I continue to think, even on the limited facts that we have, when all are put together, there arises a doubt as to whether KW, in the position she was in, was able to weigh the facts. The specifics are that when one is depressed, then one’s thinking is shifted towards negativity. Note that I am not saying she definitely lacked capacity, only that there is doubt. The true answer could go either way.

    That uncertainty, combined with the fact that it was an emergency situation in which time was of the essence, and a failure to act would mean death, seems to me to give rise to a compelling reason to buy more time to establish, with a certainty commensurate to the decision, whether she was or was not capacitous. If indeed she did have certain capacity, then I think we are all agreed that her right to self-determination prevails. Indeed, surprising as it may seem, I have been know to refuse to admit let alone detain clearly sane capacitous individuals who say they are going to kill themselves, even when the relatives are begging me to, and threatening you’ll have his blood on your hands, on the grounds that to do so would be to medicalise an existential problem; and anyway, I don’t have any right to interfere with his sane capacitous right to self determination.

    The crux of KWs case was that it was an emergency presentation, out of the blue (sic) at the moment when it happened, in which time was of the essence, and there was justifiable uncertainty about her capacity. It is not so much a matter of me projecting my preferences, as a matter of recognising the uncertainty, and responding to that uncertainty in the least bad (and indeed most flexible in terms of future outcomes) way.

    I can intellectually understand (at least I think I can!) the Kantian deontolgical position – which in layman’s terms I understand to mean actions should be guided by rules, not consequences (so giving rise to: we should do the right thing by the rules, even of the outcome is wrong) but that doesn’t mean I agree with it. Observing what I do, and considering KW’s case, it seems to me that I am most definitely a consequentalist – that it is the outcome that matters, and so guides what I do. I suspect this may be the natural mindset for doctors, for, at the end of the day it matters not so much what we do, but what the outcome is, and that is what guides us in deciding what to do. We will even go so far as to contemplate breaking the rules (in this case the law) when the consequences appear dire; we will consider doing the wrong thing (according to the law) to get the right result – in KWs case the right result being clarity about capacity, which will then (consequentially, of course) lead to a right (and sound) decision as to whether she is to live or die.

  • Iain Brassington

    A lot of that makes a great deal of sense – I certainly have no wish to pick over it in any detail – except for one thing, which I think is important. You say that
    this may be the natural mindset for doctors, for, at the end of the day it matters not so much what we do, but what the outcome is, and that is what guides us in deciding what to do

    I’d go further – I suspect that most people are natural consequentialists, to at least some extent. However, the point of ethical debate isn’t to report what people think: it’s to regulate it. The fact that Smith is a consequentialist tells us nothing about whether he ought to be.

    Oh, one other thing: it’s also possible to be an Aristotelian, in which case neither outcomes nor rules makes much odds…

  • Dr No

    I’m glad we’re moving towards agreement.

    I’m interested in your view of ethical debate – as in its purpose is to regulate what people think. I always thought ethics in particular and philosophy in general was more about examining that regulating; but I suppose when you favour a Kantian deontological position, then it is all about rules, and so regulation.

    The Witch Doctor has also made an interesting find. Professor McLean – whose blog entry on the main BMJ blog site has come to be seen as the definitive legal statement on the KW case – is also on record as saying omissions are acts:

    Although some people would say that is an omission and not an act, in the real world it is an act, and it could be just as culpable, but we choose not to render it as that.

    The “we choose not to render it as that” is especially interesting.

    The other interesting thing about McLean (who is Professor of Law and Ethics in Medicine at the University of Glasgow) is that she is pro-euthanasia – which can only lead to speculation that she would say what she said, wouldn’t she, about KW’s case. That is not say she should not have said what she said; and she may or may not be right; it’s more to say that is always helpful to know where people are coming from in such contentious matters.

  • Iain Brassington

    Examination, regulation – tomayto tomahto. The point of self-scrutiny is, I presume, to help us rid ourselves of errors to the greatest degree possible: merely knowing what you think and the strengths and weaknesses of what you think doesn’t seem to me to be all that important.

    There’s a couple of quick points I’d make about McLean: first, in the context of the article to which you link, she’s talking about withdrawal of treatment, and you could differentiate between removing treatment and never starting it. Offhand, there does seem to be a logical difference between the two, and therefore a moral distinction could also be drawn.

    But that might be mere bipilotomy, so let’s ignore it for the moment. We could still ask whether McLean is correct. And I don’t think she is.

    Meanwhile, by whom is her blog entry seen as definitive? Isn’t it a bit soon to be talking about definitive analyses?

    Finally, the difference between acts and omissions is only tangentially related to euthanasia; what happened in Wooltorton’s case was certainly not euthanasia (unless you count suicide as self-euthanasia); this is for the simple reason that it’s possible not to treat but still to hope that the patient somehow survives; it’s not possible to set about euthanising someone in the hope they’ll pull through. (It’s for similar reasons that James Rachels is wrong to characterise withdrawal of treatment as passive euthanasia. It just ain’t.)

  • Witch Doctor

    Meanwhile, by whom is her blog entry seen as definitive? Isn’t it a bit soon to be talking about definitive analyses?


    The account you are referring to is a summary of the views of a distinguished academic lawyer who is considered an expert in medical ethics and the law on euthanasia. Professor McLean clearly states:

    “Simply put, a doctor who imposes treatment in the face of a competent refusal would be guilty of assaulting the patient. However dreadful it must be for healthcare professionals to watch a person who could be saved die for want of available treatment, they have no alternative but to do so.”

    So, if you happen to be a practicing clinician of the following variety: (quoting from “Bad Medicine” blog)

    “while others are of a more menial mind, and hold that the law is sacred, and sod the patient if the law demands that the patient should die.”

    The law offers “no alternative.” That seems pretty definitive.

    Consider the other variety of practicing physician, quoting again for “Bad Medicine”

    “Some hold that their duty is to save life, and sod the law if it is at odds with this sacred duty,”

    This guy has “no alternative” but to break the law and face the legal music.

    That seems pretty definitive too.

    There. I’ve said my bit. Now I’m off on my broomstick. I’m not going to hang around here much in case all this thinking that’s going on fractures an old witch’s brain!

  • Dr No

    Tomato point understood, but to Dr No, regulations and rules sounded like externally imposed regulations and rules. If it’s an internal exercise, as it were, I fully understand.

    I take the point about stopping current treatment vs never starting treatment in the first place appearing somehow different, but to we consequentalist doctors they end up looking the same – the patient dies.

    You almost had me beat with bipolotomy but sometimes ye ancient medical Latin has it uses – so I guess it means splitting hairs! But then again I might be completely wrong, in which case it will serve me right for trying to be too clever by half.

    The reason why I said McLean is being seen as definitive is because a number of medical bloggers have said as much. Doesn’t mean it is the definitive answer for all time, it is just being seen as the most definitive statement we currently have. It’s just our medical pragmatism in the face of uncertainty coming out again.

    I’m interested that you say you don’t think McLean is correct. Could you elaborate on your reasons?

    I quite agree suicide and euthanasia are two different things; what I was getting at is that someone who is strongly minded to favour euthanasia is more than likely to have no problem at all with suicide, which is as it were one step less down the road.

    Lastly: “it’s possible not to treat but still to hope that the patient somehow survives” – isn’t this a bit of consequentalism creeping in? Isn’t the hoping to accept that the likely consequence of not treating is that the patient will die, but that you hope the expected consequence wont happen?

  • Iain Brassington

    I do love the word “bipilotomy” (I’d tagged it as Greek, but who cares?) – it’s one I’ve adapted from the late Ken Campbell, who used “tetrapilotomy”: the art of splitting hairs into four.

    My reasons for disagreeing with McLean is simply that I think that there’s a logical and moral difference between acts and omissions – and the stuff about the real world in the quotation above is baffling… which kinda brings us back to the start again. Damn.

    Hoping for the survival of a patient isn’t really giving anything away to consequentialism: it’s just a matter of making absolutely clear what’s going on in the psychological terrain of the HCP at the time; the hope itself may do some moral work (according to some accounts, at least), but what is hoped for doesn’t.

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  • Kate

    Kerrie Wooltorton,

    The problem with this case is that there are at least 4 other options that could have been taken.

    1.A Court Order could have been sought during which time
    Ms. Wooltortoncould have had treatment.

    2.A Psychiatrist could have been called in to assess her mental state in a face to face examination, not by telephone.

    3. She could, because of her mental illness (putitatively so because of attempted suicide i.e. self-harm) been detained under Section 3 of the Mental Health Act.

    4.The situation could have been deemed unclear because of 3 above.

    As for Hospital Legal Departments frightening Doctors by telling them that their patients could sue them for assault if by giving treatment the patient’s life would be saved is ludicrous and tragic. No Doctor would be convicted of the offence of saving a life.

    Kellie Wooltorton’s Advance Directive was a suicide note in which she expected the doctor to be complicit.

    Differences between mental capacity (the inability to process thought, make decisions and plan) is different from mental illnesses in which the patient is seeking to harm the self because of depression and hopelessness. The mental capacity usually cannot be cured or improved, as in cases like Alzeimers and other dementing diseases. Mental Illness can be improved while the patient is given help in a protective encironment.

    Which is better for the doctor? Being prosecuted for Assault or being prosecuted for Assisted Suicide.


  • Iain Brassington

    Kate – there’s a lot that’s right about your post, especially in regard to capacity. I disagree with one thing, though: where you say that “Kellie [sic] Wooltorton’s Advance Directive was a suicide note in which she expected the doctor to be complicit,” you’ve made a mistake: there’s no complicity here, either morally or legally. Thus your rhetorical dilemma about prosecution for assault or assisting suicide trades on a false dichotomy: there’s no reason for the medics to be prosecuted for either in this case, and – quite rightly – they haven’t been.

  • Dr. Luk Ho

    Hi everyone. Just returned from my holiday – nice to see this thread is still going strong.

    The comment of “it’s possible not to treat but still to hope that the patient somehow survives” is compatible with the “double effect” doctrine – the intention is to pursue the deontological goal of respecting autonomy regardless of the possible consequences. This could potentially be used, along with the “act & omission” distinction, to fend off a charge of assisted suicide. I hope that these defences will not be misused for discarding difficult-to-manage patients or for protecting scarce resources (i.e. mutation into consequentialism).

    It could also be argued that the professionals did not aid and abet suicide because they did not actively encourage the ingestion of poison and they did not stand to gain anything from the completed suicide. The Director of Public Prosecutions usually decides not to prosecute relatives who have helped patients to travel to the Dignitas Clinic in Switzerland for euthanasia (e.g. the Daniel James case), because it’s not in the public interest.

    However, that’s not to say that the Hospital will have an easy time should this case reach the court again and Ms. Wooltorton is deemed to be suffering from a mental disorder at the time of presentation. If that’s the case, the question of whether the MHA should have been used will arise. In addition, there’s also the issue of engagement of Article 2 of the ECHR. In the recent case of Savage v South Essex Partnership NHS Foundation Trust heard at the House of Lords, it was held that where a mentally ill patient is a real and immediate suicide risk, the authorities should do all that could reasonably be expected in order to prevent that risk.

    I know all of the above sound very legalistic and has neglected the more holistic ethical and philosphical considerations, but clinicians do like to retreat to the comfort zone of relative certainty from legal precedents, especially when dealing with an emergency clinical dilemma in the middle of the night!

  • Iain Brassington

    Welcome back…
    Two quick points: the Wooltorton case didn’t go to any court except the coroner’s court, as I understand it; and the coroner decided – correctly – that there was no need for any kind of investigation. So it’s not going to go “back” to court – that’s not how the coroner system works.

    Second: you write This could potentially be used, along with the “act & omission” distinction, to fend off a charge of assisted suicide. I hope that these defences will not be misused for discarding difficult-to-manage patients or for protecting scarce resources (i.e. mutation into consequentialism).

    Anyone who chooses deontology over consequentialism because it’ll generate the answers he wants thereby proves himself to be an incompetent thinker. You takes your metaphysics, and you accepts the conclusion it generates, like it or not. And a deontologist who found his non-consequentialism merging into consequentialism would be doubly incompetent. Thus I don’t think that we need to worry too much about such boneheads.

  • Dr. Luk Ho

    Sorry for not making my point sufficiently clear. My point was that the misusers of the doctrines are in fact consequentialists masquerading as deontologists in order to add morally acceptable gloss to justify their decision of not treating difficult patients. So these “boneheads” are actually being quite crafty!

    The Coroner cannot prevent the family from taking further legal action. This is from personal experience. One of my patients tragically ended her life a few years ago. The NHS Trust responsible for this case received a favourable verdict at the Coroner’s Inquest(with a jury present), but the family was still allowed to take civil action against the Trust subsequently, alleging negligence.

  • Iain Brassington

    Aaaaah – I see. I agree with you about the crafty boneheads…

    Of course, there’s nothing much to stop the family bringing a suit in this case; but they don’t have much of a legal case to make, all the same.

  • Dr No

    Kate – don’t take what IB is saying about complicity as necessarily true – it’s just a view. There are plenty of other people (including some ethicists) who would view the Norwich doctors’ behaviour as possible complicity.

    That said, whether the DPP would have proceeded is a moot point. And that is another reason why this debate is important: the whole area is very grey, despite IB’s insistence that the law is clear.

    The MHA: it appears that not only did they not assess KW under the ACT (and she may or may not have been detainable); the didn’t even get a current face to face psychiatric opinion which frankly seems right off the wall given (a) KW’s history and (b) what was at stake here was her life.

    Dr Ho – the aiding and abetting question: there are many who consider an omission can abet. One test is the “But for” test: “But for the omission to treat, the patient would (probably) not have killed herself”. For an omission to count as abetting there also usually needs to be a duty of care – which there was – KW was an in-patient under their care.

  • Iain Brassington

    *bangs head repeatedly on desk*
    The law is not grey on this, as John Coggon has made abundantly clear hereabouts.

    I’m not quite sure what else can be done to get you to realise this.

  • Dr No

    The problem is, Iain, that (a) I have read contrary opinions (eg John Keown) that do raise questions about the law and its interpretation and (b) my medical assessment – as opposed to legal – of the law leaves me with more questions than answers. All that banging your head on the desk will do is give you a headache (and possibly a diagnosis of DSH). Just telling me I am wrong wont work either. You need to convince me with your arguments. So far you haven’t.

  • Kate

    Iain et al -

    The law points out that to make a “will” whether or not a living one, people need to be of sound mind to do so. KW was clearly not of sound mind, while appearing intelligent and possibly rational.

    If all potential suicides (commencing with episodes of self harm) were allowed to ask a medical doctor to finish the job properly simply because they are allowed to requiest it then what need for psychiatrists? All mental hospitals can close, and all psychiatrists would become redundant!

    It is appalling that KW did not have on site service of a psychiatrist as well as the medic. Both of them owed a proper duty of care to their patient.

    It is to be remembered that when KW wrote her “living will” the Mental Capacity Act was a few days from being enacted and did not apply.

    Now the Act is on the statute books, there is still a grey area where Mental Capacity is not fully defined or differentiated from Mental illness. There is a call for the Act to be amended, (a damage limitation exercise if you like) but what is needed is positive pro-active addition to the legislation on Advance Statements (living wills) which excludes the suicide bid.

    Never mind head banging!! there should have been a little more head banging before the Legal personnel made their decision and realised that the “Living Will” cannot be viewed in vacuo.


  • Iain Brassington

    What makes you so sure that Wooltorton was not of sound mind? I’ve seen no positive evidence for this, and nor – so it would seem – did the coroner. What I have seen is a number of people suggesting that she lacked capacity, but that’s not the same thing by a long shot.

    As for suicidal people getting medical help – well, that’s a HUGE leap in argument, and it has nothing to do with this case. But I’ll rise to your challenge: I see nothing wrong in principle with suicidal people being given help to ensure that the death they want is as quick, clean, painless and dignified as possible.

    I can’t see for the life of me why ADs should exclude suicide bids. There’s no reason to believe that a suicide attempt is sufficient to indicate a lack of capacity; if I, capaciously, make it clear that I don’t want anyone to try to save my life, what’s the problem with that?

  • Dr. Luk Ho

    “But for the omission to treat, the patient would (probably) not have killed herself. For an omission to count as abetting there also usually needs to be a duty of care – which there was – KW was an in-patient under their care.” However, if the patient was deemed to have capacity and was refusing treatment then the clinicians were legally entitled to (and indeed expected to) omit treatment.

    The “omission” could also include the absence of a formal psychiatric assessment, which in turn, could have resulted in treatment under the MHA, which can quash a valid and applicable AD and/or a capacitous refusal, as mentioned in my earlier posts. Therefore, even assuimng the presence of capacity, this could form the basis of a claim of negligence. The negligence claim might hinge on whether the omission to seek psychiatric assessment represented a breach of duty of care and if so, whether on the balance of probabilities this breach caused the death by denying the opportunity of treatment under the MHA.

  • Kate

    Dr. Luk Ho

    I totally agree with your assessment. Mental Capacity is totally different from Mental Illness and in
    Miss W’s case the Mental Capacity Act was not even on the statute books and therefore the MHA should have swung into operation. This would have given the medical staff good reason not to comply with Miss W’s wishes. The case of
    Miss W. was outside their paradigm of a renal specialist, and was without an assessment by a psychiatrist who should have been given the opportunity to examine and assess, again under the MHA.

    No excuses.


  • Iain Brassington

    Kate: how and why should the MHA have swung into operation? You’re still assuming (a) that KW was suffering from a mental illness at the time, (b) that it was the kind of mental illness that could undermine her capacity, and (c) that her capacity was undermined.

    Where’s your evidence that this was the case? The mere fact that she had a history of mental illness won’t do; nor will the mere fact of her being suicidal at the time.

  • Dr No

    Iain – there were more than enough red flags to warrant an assessment under the MHA. The outcome could have gone either way; my guess is that she would have been detained under S2 or S3.

  • Iain Brassington

    What were they? I’ve asked for evidence that at that time, Wooltorton lacked capacity. Waving vaguely and insisting that there is evidence does not itself count as evidence.

  • Dr No

    I’m not in my last comment talking about capacity (but see below); instead it is whether there were grounds for a MHA assessment.

    I think that most clinicians faced with an actively suicidal woman who had presented herself at A&E, with a recent history of several failed attempts, and a known history of depression and PD, would at the very least warrant a current face to face psychiatric assessment, in all likelihood with a MHA following on.

    Capacity: what makes you so sure she was of sound mind? Just saying the MCA presumes capacity provides no grounds in a particular case.

  • Witch Doctor

    Iain, your mind fascinates witches.

    A Scenario:

    Apparently there are some sites on the web just now claiming that the world is going to end in 2012. Some teenagers are becoming agitated.

    I don’t want to be around when the world ends, so I’m going to drink some poison and present to my local A and E department on Halloween 2011. If conscious I will refuse treatment but ask to be kept pain free and as comfortable as possible while I make a “dignified exit” anticipating the end of the world.

    I will also carry an AD in case I become unconscious before arriving at A and E.

    If conscious, I will be assumed to be competent until proven otherwise. I will pass the competency test. I do not have a mental health problem. I have just been spending too much time surfing the web.

    Should the medical staff allow me to die when the time comes and if not, why not?

  • Kate

    Dear Iain

    Please stop arguing about Mental Capacity. There was no problem that Miss W. had a problem with mental capacity.

    Her problem was her Mental STATE – i.e. one of severe depression and hopelessness and thus she came under the protection of the MHA.


  • Iain Brassington

    Kate –
    Capacity, state: let’s not quibble over terminology. The question is one of whether she was capable of refusing treatment; I suspect we could agree on that formulation. My point still stands: I’ve not seen any evidence that she was in any way unable to make the decision at the time.


  • Dr No

    Iain – Kate would appear to be a clinician. She is using the word state as a clinician would. It’s not quibbling about terminology – capacity and mental state may be connected, but they are separate entities.

    Mental state as in mental state examination is what a clinician observes and uses to come to a diagnosis. Capacity is the ability to make valid (for want of a better word) decisions.

    I find it somewhat alarming that you were not aware of the distinction.

    “I’ve not seen any evidence”: the evidence is staring you in the face. It’s KW’s PPH (past psychiatric history) combined with her HPC (history of presenting complaint).

    Plus – the fact you haven’t seen any evidence doesn’t mean there wasn’t any evidence. Just because you have not seen a green swan doesn’t mean green swans don’t exist.

  • Iain Brassington

    OK – I take the point about mental states and so on. Still, I think that the context of the discussion so far should have made it clear what I meant by the term (and how I’d understood it to be used by other contributors). I’m not alarmed that the distinction was glossed over because I think that it suited the debate.

    I disagree with you about evidence. A past psychiatric history won’t tell you anything about a person’s mental state, decision-making capacity or anything else right at this moment. (Analogously, a person’s criminal record won’t tell you anything about their involvement in the latest crime.)

    Moreover, my concern about evidence is simply that none seems to have been presented in this case. There is no reason to suppose that her refusal of treatment was anything other than “authentic”; therefore it’s a supposition that we ought not to make. I think that a prejudice in favour of decision-making ability is a reasonable starting point.

  • Iain Brassington

    @ Witch Doctor –

    Your question is a good one, and – if you don’t mind – I’d like to C&P it into a new post, because it’d be interesting to see what other readers think, and I wouldn’t want the comments to get lost in this thread.

    Here’s my initial response: while there’s quite possibly legitimate criticisms of the would-be suicide’s behaviour in your scenario – not least that he’s putting NHS staff in an invidious position and using up public resources – I think that intervention would be problematic. We’re used to thinking that people are entitled to make whatever stupid decisios they want, as long as they do so “authentically”, and as long as they harm noone else. Your scenario fits with this.

    Similarly, there’s nothing too wild about allowing decisions to stand even if they’re based on false beliefs – and this is why we allow people to make all kinds of decisions based on religious qualms, anti-vax hokum, and so on. So while there might be times when we’d dearly love to give someone a slap and tell them they’re a twerp, it’s not clear that this is one of them.

    I wouldn’t want to accede to the refusal of consent, and I wouldn’t be happy to do so. But there’s still a good chance that I ought…

  • Dr No

    Iain – it’s all about diagnosis. Or to use terms that may be more familiar to you Bayes theory and pre- and post- test probability.

    The pre-test situation is the point at which KW comes through the door. The doctor then takes a history (which is the “test” in this case). The results of the test ie the content of the PPH and HPC (and all the rest of it – drug history – is she on AD’s etc) – then affect the post-test probability of the presence of a particular diagnosis – in this case some form of mental illness.

    Detectives always want to know about form; doctors take histories. Why on earth go to all that trouble if it had no bearing?

    I know it doesn’t tell you about “this instance” in a binary yes/no absolute sense but the world (unlike lawyers, who do operate on binary principles: guilty/not-guilty) operates on probabilities. And that means uncertainties, and that means making the best guess possible based on all the available evidence.

    No sensible clinician would ignore KW’s PPH/HPC/DH etc. Indeed, it would probably be negligent to do so – and contrary to the Stasi’s rules to boot!

  • Iain Brassington

    Form may be of interest to police, but it’s not admissible in court. Yet. Thankfully.

    Or to use terms that may be more familiar to you Bayes theory and pre- and post- test probability.

    I have only the scratchiest understanding of Bayesian probability, so I’m rather out of my depth here. Still, from the vague impression I have, I don’t see the appeal pulling much weight, if only because it’s difficult to quantify (or even qualify) the probabilities. Nor is it obvious that such a calculation would be desirable from a moral point of view; you can’t reduce decent behaviour to checklists and formulae.

    But that aside, while an appeal to the probabilities may tell us something about the odd case here and there about which we have unusually precise information, it won’t make much difference to the more general – and abstract – questions thrown up by a case such as KW’s.

  • Dr No

    Iain – doctors don’t do general and abstract – they do real medicine with real people.

    As for throwing out Bayesian probability – to do so is to throw out a conerstone of clinical diagnosis (and detective work – without which the suspect would never get to court). And it is not in the least bit difficult to quantify the probabilities – an awful lot of medical research does just that.

  • Keith Tayler

    @Dr No

    I would not go so far as to say “it is not in the least bit difficult to quantify the probabilities – an awful lot of medical research does just that.” There are number of ‘theories’ of probability (Bayesian probability being very fashionable at the moment), and they are not always applied correctly within a field of research.

    You are right to identify the role of probability in any assessment procedure. I believe that one of the major failures of medical ethics (bioethics) and law is the inability to get to grips with probability. I have been amazed by the number of senior academics in these fields that have little or no understand of probability. Of course their ideas and work is littered with it, but seldom do they notice its presence.

    As I have indicated in other postings, I do not believe we should discuss the ethical and legal issues in a case such as KW before we have fully considered the evidence and the ‘probabilities.’ This process would make much of the existing ethical and legal discourse redundant. Looking for ethical and legal problems before we have agreement at this level appears to be nothing more than a job creation exercise for the medical ethics and law industry.

  • Dr No

    Keith – I haven’t noticed a chorus of clinicians saying it was the right thing to let KW die. I am sure one or two might have, but the great majority of us have said that, even on the limited facts available in the public domain, there was prima facie diagnostic uncertainty, and that had implications for capacity – and as result we would have bought time with KW – ie treat first ask questions later management.

    Most of us (including me) have said that a sane capacitous individual is not a patient and it is no business of a doctor to interfere in their right to self-determination.

    You are very right about doctors not being good at getting to grips with probabilities. Most of us (including me) are not very numerate and the only reason I know anything about it is because I realised I didn’t and tried to do something about it! I suspect you are an expert in probabilities but for those who want to make a start Bandolier is a good starting point.

    I wonder what you had in mind with “fully considered the evidence and the ‘probabilities’”? Isn’t that exactly what the medical input has been doing all along? What more might we do?

  • Keith Tayler

    @Dr No

    It might be difficult for a medical team to ‘fully’ consider the evidence and probabilities because the situation might not permit it. If they have limited time and are prevented from doing a proper assessment, they should, I believe, assume that the individual patient will behave like most patients and, given time, will change their minds about suicide, i.e., as you put it, “treat first ask questions later management.” That is basic scientific methodology.

    If they have the time and are reasonable certain that the patient has capacity, etc., etc., etc., then they should respect the individual patient’s wishes. It is only under these conditions that the ethical and legal issues come fully into play.

    I do not believe medical teams can do much more, nor indeed should they.

    My worry about not getting to grips with probability was directed toward medical ethicists and lawyers. In my experience doctors usually have quite a good understanding of it, or at least realise it exists.

  • Iain Brassington

    Just a very quick thought, for the sake of stirring up a wasps’ nest: why is it important for ethicists and lawyers to get to grips with probabilities?

    Ought and is and all that malarkey…

  • Dr No

    Keith – in spite of everything I have said, I should perhaps mention – before someone spots it – that I have a conceptual problem with the application of probabilities to individual patients. It’s just something that niggles me: when I say to an individual patient “you have a 10% chance of X happening”, what does that mean for the individual patient. The full post is The Collapse of the Probability Function.

    That said, I think your last comment summarises what should happen in the real word. It all boils down to not taking irreversible steps in the face of uncertainty, which then leads to treat first, ask questions later etc. Once the emergency is over, a calmer and fully considered assessment could – if the patient so desired, and was of course sane and capacitous, lead to their suicide. As I have frequently said, if they are sane and capacitous, they are not a patient, and so the doctor has no business interfering in their autonomy.

    KW appears to have constantly flipped between wanting to kill herself and not wanting to. Maybe the NorDocs just allowed her to die on a bad day because of some asinine law. Or it might have been more sinister – see Snuff Medicine. Before anyone gets too excited, I do not know what went on in Norwich; what I am saying is that such things could happen there, or anywhere else, and the MCA could provide the necessary smoke and mirrors. There is the added neatness that – as we are so often accused of – the docs get to bury the evidence.

  • Keith Tayler


    Simple. Doctors and other medical professionals need to have an immediate ‘feel’ for probability in order to do proper assessments of a patient’s condition. This will be passed on to them during training and they should develop it with experience. However, as you have said in another context, we should examine our ‘prejudices’ and ‘everydayness’ in the world. Medics should therefore examine there ’intuitive’ use of probability (I include statistic). They should know about its history. It was born as much out of ethics and social engineering than mathematics. It has become the central methodology of modern science and technology. It gave birth to eugenics and numerous other pseudo-sciences that are still alive and well today. There are competing theories in probability; the dominance of one is often dependant upon the social, political and technological conditions. (Technologies like computing have had considerable influence upon probability theory and visa versa)

    If medics understand at least some of this (or should understand it), medical ethicists and lawyers must understand quite a lot about it. How, for example, are they going to understand the decision making of medics if they do not understand their ’decision theory’? If a medical lawyer does not have a very good understanding of probability, how is he or she going to understand medical evidence in a court? (The answer is that they do not, and that explains quite a lot) Again, much of the legal reforms in the 18th and 19th centuries were driven by an interest in probability – What makes good evidence? How many should be on a jury? etc.. (Leibniz worried about such matters) There is considerable interest in probability and risk within the law, but for the most part UK academics in medial law are unaware of it. Much of this interest is centred in the USA and is driven by game and decision theory (again computing and AI plays a major role).

    Not sure how a medical ethicists can understand much about genetics without a knowledge of probability. We need only look at some of the discussions about the new eugenics (enhancement) to see how little some bioethicists know about eugenics and genetics (their knowledge of philosophy is not much better). Debates about health provision and resourcing would often benefit from some actuarial considerations. Systems theory is quite hot stuff in some parts of Europe, but I have encountered medical ethics that have waved it aside as something those Continentals do and of no real interest to a true Englishman (nothing changes). Privacy issues within medical ethics often appear to belong to a bygone age, there being a poor understand of security engineering and economics. (I have monitored all the UK’s university med. ethics and law dept. postgraduate ‘seminars’ for the last six years in order to discover how many have invited speakers from the field of security engineering, etc.. Still below 2%. (Yes I am sad))

    I am not suggesting the medical ethicists and lawyers need to become experts in these fields, but they do appear to think that a knowledge and understand of ethics and/or law will suffice. Given its extraordinary history, its present uses and abuses, and the deep ideological nature of probability, what I am suggesting is that ethicists and lawyers should take a critical look at it. Anyway, it is interesting and you do not need to be a gifted mathematician to understand it, indeed, many gifted mathematicians fail to understand its full complexity.

    As for the Ought and Is malarkey. To repeat myself again, before we get to the ‘ought’ we need to be clear as ‘possible’ about what ’is’. I am also not altogether convinced by the “no ‘ought’ from an ’is’” argument. There are some cases, as A.N Prior shows, where the distinction gets fuzzy – the medical profession is one such case. This, as MacIntyre and others show, has to do with the construction of autonomy in the 18th century, concepts of functionality, etc.. Of course, the tension between ‘autonomy’ and the ‘normal man’ is the starting point for much of probability theory and was a popular topic in 19th century.

    Steps off soapbox and goes home.

  • Keith Tayler

    @Dr No

    I agree. As you can see from the above, I want people to be critical of probability theory and its uses. It is an extraordinary body of knowledge that has a massive influence on all our lives (the present financial crash has been caused by the use and abuse of probability theory). The world runs on it, but like oil it does pollute.

  • Dr No

    Keith – and I agree to. Probability and probability theory are threads that run through just about everything we do, from crossing the road to, as you say, bankrupting banks, and yet most people are unable to assess even the most basic risks – which of course helps to keep the lottery going.

    Your are also right about doctors needing a “feel” for things, and certainly the basics are taught at medical school, but it takes many many years to tune that feel into something useful. It can also be as seemingly vague as knowing that someone is “not ill” – as you don’t know what they have got, but you know they aren’t seriously ill. It’s a variant of the “I don’t know exactly where I am, but I do know where I am not”.

    The relevance of all this to KW is that most (obviously not all…) doctors would “feel” something wasn’t right about her seemingly determined suicide attempt. Too many red and amber lights etc; and so uncertainty, and so, as I have said before, treat first and ask questions later.

    If m’learned friends and ethicists are going to encourage plaintiffs and the courts to view KW-like situations (ie the ones where marked uncertainty and ambiguity appears to exist) as assault then there is going to be a Right Royal Bust Up between them and us!

  • Kate

    Dear All

    Anyone heard of Passcal’s Wager? When we discuss “probabilities” what we are saying is we don’t know – so why not go for the best possible outcome, for now?



  • Iain Brassington

    @Kate: and the best possible outcome would be what? And what’s the relationship between goodness and rightness on which you’re leaning?

    Pascal’s Wager is notoriously shonky at the best of times. Appending vague terms like “best possible outcome” won’t help anyone…

  • Keith Tayler


    I think Kate’s point lies in the “for now.” That is possible.


  • Dr No

    “For now” is key.

    And in the real, horrible, messy world where a woman is about to die I think we do what we do because not because it is right or good – frankly that doesn’t come into our mind, nor should it; because what we need to do right here, right now, is achieve the least bad outcome.

    Allowing a woman to die because some legal suit or hair shirt ethicist said we should when a real possibility exists that she was not 100% committed to killing herself is a worse outcome than saving her life – if it turns out she wants to live, with hindsight we have done the right and good thing; if it turns out she really does want to die (and she is sane and capacitous), then she has learned she needs to make sure of her method, in all its aspects, if she is to be certain she will kill herself.

    Which leads me to an interesting speculation about the real world legal consequences of saving a life against someone’s will: if she chooses to live, no prosecution for assault can in real terms succeed because the doctors manifestly did the right thing; if she chooses to die, then she’s hardly going to start fighting a legal battle.

    Which leads me to conclude: whatever the lawyers say, there is no realistic prospect of doctors finding themselves in court for saving a life – even if their actions in saving that life technically amount to assault.

  • Kate

    Dear Iain

    You are far to intelligent not to know exactly what I mean.

    Doctors take Pascal’s wager all the time without knowing of it faced as they are with urgent and pressing medical need.

    A doctor is quite unlikely to self-indulgently go off into a reverie about ethics or keep a pocket version of the MCA about his person when faced with a life/death situation.

    Lawyers know nothing about medical matters or ethics, and ethics are not the law. Muddling them up is not helpful.
    The MCA causes more problems for Doctors than it solves.

    TheMCA was not in force at the time of the KW case. Amongst some doctors the MCA was a no-brainer. Read the Evidence Statements of the Committee stage of this Bill in Hansard, and how, when it is decided that a MC patient should die, it is brought about. See also You Tube interview with Lord Carlisle et al about when it is decided a medical patient should have “treatment” withdrawn and how this is done. To view this you need to type in “Dehydration”

    Mock ye not Mr. Pascal or his wager.


  • Kate

    Dr. No, I agree about “hair shirt” ethicists – I am sure they mean well, but they tend to think that people who are “pro-life” are religionists and therefore look for rationalism in their secular pronouncements. Most thinkning folk would find this abhorrent. This rationalism seems to be for doctors, and the application of ethics at the bedside is quite another thing from theoretical deductions from those who are ignorant of real-life situations as in the KW case. People are allowed to refuse treatment, but not demand it as in a recent case where the prosective litigant wished to be able to ask a court that he not be dehydrated and/or starved to death. His case failed.(Leslie Burke case).

    I agree that if KW wanted truly to die, she should have chosen a method whereby she would be successful without the assistance of the medical profession. Now that, is where I believe her action was downright unethical, but ethics appear only to apply to those in professional practice.

    Assisted suicide is something in which I have sympathy. Seeing a loved one slowly and inexorably dying because of an incurable and terminal disease with them begging for death when in extremis, as in the Diane Pretty case, is with their consent, and usually assisted by a loved one. That this is now to be amended to include “a person of compassion” which could, quite wrongly in my view, include the medical profession. This, historically used to be called “mercy killing”. The MCA gives no credence to the views of loving relatives of MCA hospitalized patients who cannot express their own views or make a decision. But, there is the possibility that a doctor can make a decision to make no decision.

    KWs case was unlawful in that other legislation appears not to have been considered. We appear to have a Utilitarian result on this from the Coroner concerned.

    ADs should only apply to those who already know that they have a incurable disease which could cause a great deal of suffering. No for those who commit suicide, fail and as I have said dwish for a doctor to finish them off, but make them comfy. What a travaesty of the proffession. This can only lead with other directives contained in the MCA as delineated with references above, in the elderly public in particular, being afraid to be hospitalized. Law is another peculiar animal – it is adversarial (binary as you described it) in which the best barrister with the best argument wins and can thus have little to enlighten or find the truth in medical matters.

    Hop you understand my arguments.

    Best regards,


  • Iain Brassington

    Kate – You’ve raised a number of points here, but I think that I disagree.

    I don’t see the link between being pro-life and religious. One day, I’ll get around to that post I’ve been promising on the pro-life bias in medicine and medical ethics; for the time being, though, I think you’re massively oversimplifying. I’m also intrigued by the distinction you draw between ethicists and “thinking folk” – given that thinking about ethics is an ethicist’s job, don’t they (we) count?

    I can’t see what you mean by drawing a line between bedside ethics and armchair ethics, either. Doesn’t the latter consider and inform the former?

    You’re right about demanding treatment, but there’re all kinds of reasons why there’s no sense in equating demand for treatment with refusal. And Burke wasn’t about allowing the medics to starve or dehydrate; it was about the right not to give treatment they thought burdensome. The difference in emphasis is crucial, I think.

    KW did not seek to die with assistance. She sought to die in some sort of comfort. And to pick a fight with her because of her method seems somewhat pusillanimous to me.

    I don’t see why it would be wrong to include medics as “persons of compassion” for AS – see my post on the DPP’s tacitly ageist guidelines from a few weeks ago, which touch touches on this.

    KWs case was not unlawful. How many more times does it have to be said? The Coroner wasn’t making a Utilitarian point: he was simply stating a fact about the law. You seem to be desperate to show that he gave a mistaken ruling because you don’t like it. But that’s not sufficient to demonstrate a mistake.

    Finally, I disagree that ADs, AS, or euthanasia should apply to those who are incurably ill or suffering, and I’ve published on this. The former doesn’t seem to be an important criterion; the latter just seems brutal.

  • Kate

    Thinking about ethics is fruitful – I just wish that when it comes to life and death and medical treatment that it would be left to doctors not lawyers. I disliked the Coroner’s verdict because he never addressed alternatives and the huge mistake that KW was mentally ill. In this I believe he was (with respect to him) wrong on this point of law. and as he pointed out the MCA was not in force.He would not have addressed any points of ethics. By Utilitarian I meant “the greatest happiness for the greatest number” – there were not only ponderables but imponderables i.e. issues not thought about.

    You insult me if you are saying that because I did not like his ruling that I am desperate to disagree with him. That is not true. Certainly the Coroner was right on THAT point of law.

    As I have said, there is a huge difference between MC and Mental State. The MCA enables Euthanasia to be carried out on the decision of the doctor in the case of a patient who cannot make a decision, relatives having no say.
    That I do call brutal.

    It is my firm belief that doctors should never be placed in a position of having to allow a person to die, when he or she knows that treatment is available and may very well be successful.

    With regard to the possible caveats around AD’s I am of the firm view that these should not include attempted suicides. Research has shown that a large percentage of people saved from suicides are glad to be saved and still alive.

  • Iain Brassington

    Research has shown that a large percentage of people saved from suicides are glad to be saved and still alive.

    What research? Presumably, those who survived but weren’t happy about it wouldn’t be around all that long afterwards to participate in the research – they’d have had another go – so I’m worried that any research like this is self-selecting: by its nature, it’ll only interrogate those who sunsequently decide that life’s not too bad after all.

    On the other hand, none of those who succeeds regrets it. (You invoked Pascal’s wager earlier: that’s my version.)

  • Kate

    Naturally any figures on suicide by it’s very nature have limitations, but are useful. Suicide is often a thing of the moment. The person did not want to do it the day before, or they would have done. Who knows that tomorrow, with help support and care, they would try again? Sure, without some support they very well might try again.!

    Of course we cannot know whether a person who succeeds in suicide regrets it! Your version of Pascal’s Wager must be meant as a joke, unless you can further elucidate, or shall be draw this debate to a close?

    Can I venture to say it’s clear you know nothing of the clinical presentation of Mental illness (luckily?) No suicide attempt whether successful or not, is done in vacuo.

    Laws should not be judged in vacuo either. Another law may elucidate and clarify.

    Kind Regards Kate

  • Keith Tayler


    Yet again you have a problem with evidence. Kate is correct, research clearly shows that most people who attempt suicide regret it later and recover. Obviously individuals that have made unsuccessful attempts and then are successful are counted as not regretting their earlier actions. As I said in a much earlier posting, many years of experience working with people who have depression and self-harm problems leaves me in no doubt that the research is correct.

    I am extremely critical of psychiatric and psychological research (much of my doctorial research was in this field), but I have few problems with the methodology and the ‘self-selection’ problem in this area of research. If you are going to doubt the research you should publish your findings. Your ethical argument appears to rest upon the assumption that most people do not regret suicide attempts. Without proper evidence your argument is just armchair rambling. Evidence, evidence, evidence.

  • Kate


    I really cannot imagine how research of this nature can be done without being “selective” i.e. through questioning those known to have attempted suicide.

    Ian’s arguing for the sake of it. Bless!

    What does an existentialist reply when asked how he feels? He says “With my hands of course”.


  • Kate

    A report shown to me from yesterday’s Daily
    Mail (Sat Nov 14)of a very pretty young woman who attempted suicide eight times and was medicated from the age of 12 with antidepressants. Her Dysmorphia started at puberty, which commenced at the very early age of 9 years. At age of 23 she made her last attempt and doctors wanted to section her but her mother intervened and so she stayed at home under suicide watch. She was given professional therapy, as well as medication, and is now an exhibiting artist. She suffered from severe Body Dysmorphic Disorder giving her crippling feelings of failure and self loathing. I am paraphrasing the Report. She is not entirely over her BDD but has made no more suicide attempts and clearly has some sense of fulfilment now. No report of an AD. She is now 26.

    Does that help you Iain?


  • Iain Brassington

    Help me in what way? What is this story supposed to show? And what does it have to do with either the Wooltorton case or the much wider question that motivated the OP?

  • Kate

    Iain – it’s an illustration of the research into the survivors of suicide attempts and that they were happy not to have succeeded. Unfortunately KW not given the chance.

    What do you mean by OP??

  • Iain Brassington

    “OP” stands for “original poster” or – in this case – “original post”.

    It’s not an illustration of research – it’s a human interest story in a newspaper (and I use the term in its loosest sense) that has a fairly clear agenda. (Look at the subtext: doctors wanted to institutionalise her, but all she really needed was self-help and family, ‘cos there’s no such thing as society, see?) Oh, and it’s also an excuse to show a photo of a girl in a short skirt, which is something that the Fail likes quite a lot. (I recommend the Tabloid Watch blog for continuing commentary on this theme.)

    What the article doesn’t do in any way is address the point that the studies into happy survivors to which you’ve referred are self-selecting.

    Finally, note that the only person who wanted to remove KW’s chance of further happiness was… er… KW herself. You’re making it sound as though the medics were perfectly happy not to treat, and there’s no evidence for that at all.

    Sorry about the tone. Reading the Daily Fail always makes me a bit tetchy…

  • Kate

    I agree, you do sound a bit tetchy Iain.

    This is a human story and that is what philosophy is about, ie the human being.

    I cannot imagine, as I have said, that those who research into attempted suicide, have first not actually got factual evidence first.

    Are you more happy with RCTs?
    Why would this be applied to this particular condition?
    with the important basic information already to hand?

    If someone wants to research into the number of deaths from say, a certain illness, surely the data is already out there it just has to be collected. There are some things that cannot be researched by RCTs. And there are some researches, particularly Social Research that rely on
    the human response to certain situations. They are not invalid, and extremely useful.

    You as an ethicist are trying to reify something as abstract as morals as if no-one has them, and everyone needs your guidance. It is very interesting, of course, but ethics can only be imposed, not researched, and difficult to universalise, which of course is behind the effort in the Human Rights Act. Morals evolve, as thinking changes. Hearts and mind stuff, even if that makes the core of your being retch. However I strongly suspect you may have a phrase to hand that means the same thing but sounds posher.

    You deal with Opinion and argument not facts backed up by no doubt with the proper vocabulary.

    Doctors are dealing with people’s medical problems backed up by science. Psychiatrists who are also doctors in their own field, with how people are able to cope or not with what life flings at them.

    How would you respond to research done to ascertain the response to medication for those with heart failure? Wouldn’t you go to people who are already on medication for heart failure? A member of my family took part in this research for a year and it was followed up. He was visited and talked to on a number of occasions. This is not self-selection ( but he was asked to take part,and consented) and neither was the research done into how a suicide attempt affected those who were saved.

    I see nothing wrong with this story. Having dealt with the press I know how rigorous they are as to evidence before printing a story like this.

    Although the Daily Mail is not my newspaper of choice this is a true story. Google Hannah Camille, Or Walsall Service Users Empowerment and you will see. You do not have to believe me, or the Daily Mail.

    I re-iterate this is an example of how those who attempt suicide can be helped. This is a human need met. I am not sure about all the “probability” discussion – epistemology gets us nowhere, so perhaps metaphorically speaking Heisenberg’s Uncertainty principle comes in here. But doctors don’t have the luxury of dithering.

    If you remember the KW case because of the AD the Doctor had to put the problem to their legal department at the hospital. The doctor wanted to treat. The Legal Department ruled that the AD was lawful & if he did not obey the AD, the doctor could be prosecuted for assault.

    However the legal Department were not judge and jury. To allow KW to die without a Judge’s ruling which would have been reached after all the facts were presented and have explored KWs Mental Health Care needs is monstrous and arrogant of a legal department.


  • Iain Brassington

    KW was dying when she was admitted. Taking the case to a judge would have taken time: probably too much time. What’s your suggestion? That doctors override her refusal of treatment on the off-chance that they’ll get the judge’s OK after the event (which, I still maintain, would’ve been unlikely)?

    There is nothing at all mostrous or arrogant about what the medics did in this case.

    I think you’ve missed my point about research, but I’m not going to chase that.

    You seem to have a very strange idea about the nature of philosophy and ethics, though. What do you mean when you say that philosophy is about the human being? What do you mean when you say that “ethics can only be imposed, not researched, and difficult to universalise”. That’d be a surprise to many professionals in the field. It’s possible that there’s no “objective” morality – which I take to be implicit in your claim that “[m]orals evolve, as thinking changes” – but you’ve offered no reason to believe that.

    Ethics is not “hearts and minds stuff”. I’m not quite sure how I would define it, but among its central characteristics is that it’s a cool, dispassionate, disinterested investigation into the nature of value and practical reasoning, and into the good (and the meaning of “the good”). It’s not about hearts and minds any more than chemistry is about hearts and minds.

    When you say that I – or ethicists – deal in “[o]pinion and argument not facts”, that’s really not true – and you’re also implying that argument is somehow inferior to facts. That’s not right either. Arguments helps discern the facts, and it puts the facts to work. To paraphrase Kant – thoughts without data are empty, data without thoughts are inert. You won’t get anywhere by presenting the facts. You have to know what to do with them.

    Your faith in the rigor of the press is somewhat optimistic, I fear.

  • Kate

    Dear Iain,

    Let’s make this clear. It was the legal department of the hospital concerned in the case, that decided, without recourse to a Judge to inform the Doctor that he could be prosecuted for assault,if he treated KW, when the chances were, as we have already established, pretty remote that he ever would be prosecuted for saving a life.

    The Legal Department unilaterally decided that KW’s AD must be lawful, and they did not need a Court Order. They should have gone for a Court Order to validate KWs AD and “discern the facts” of the case. This is a point of law, not ethics.

    Ethics are not a catch all. Circumstances and application do differ. And whereas they may inform the law, they are NOT the law.


  • Iain Brassington

    The lawyers did not consult a judge – but there was no time to, and it’s not at all obvious what difference it would have made anyway, since their interpretation of the law was correct.

    I have no idea what you mean by saying that “ethics are not a catch all”. And noone has said that ethics and the law are the same – not here, anyway. Besides – let’s face it – the OP (and this blog) are primarily concerned with ethics anyway.

  • Kate


  • Keith Tayler

    This is getting a little heated. Surely we can all agree that anything reported in any newspaper is most likely to be gross distortion of the truth/facts. This is why I have been reluctant to analyse the KW case in any depth and certainly have no interest in discussing Hannah Camille. I did some research into KW but probably went too far in my earlier comments. As I have said before, we do not know enough about her state of mind and the events that led to her death.

    Having said that, you say “The lawyers did not consult a judge – but there was no time to, and it’s not at all obvious what difference it would have made anyway, since their interpretation of the law was correct.” I understand that the AD was not witnessed. The MCA states that it “should” be witnessed. As with so much legislation of this type, the MCA has been written by halfwits. It is impossible to say that the interpretation of the law was correct in the KW case until the “should” has been taken to a very high court in this country or Europe.

    Iain, you say “I think you’ve missed my point about research, but I’m not going to chase that.” Presumably this has something to do with a “self-selection” problem you believe invalidates the research into suicide. I accept that ever since suicide was ‘medicalised’ by Esquirol the medical profession has tried to keep it and treat it as a medical condition. That aside, what he did do was to create an interest in the topic that formed some of the foundations to probability theory (can‘t get away from it can we?). We ‘know’ within the limits of this science more about suicide than just about anything else on earth. It was from this data that Durkheim wrote his great work in statistical sociology ’Suicide’. Durkheim claimed to have discovered a lot about societies from the statistics of suicide (Marx gave another interpretation using other sets stats). Much of what he (and Marx) said was wrong, as is much that is about it now is wrong. What we cannot doubt, however, is that there has been and continues to be a vast amount of stats collected and analysed on the subject of suicide.

    When I am confronted with this data I see much of it as being bias and corrupted by the interests of the medical profession. Even if we assume that ‘saving lives is good’, it does nonetheless corrupt the data and analysis. So obviously much of the present research is not ‘objective’ because it is directed at the prevention of suicide. Keeping social statistics value free is extremely difficult (hell, its impossible); but that should not stop us from analysing them ourselves and presenting them from our own perspective.

    There are problems of “self-selection” in some studies, but in general the standard of the statistics and analysis of deliberate self-harm (DSH) is of a high quality (as I say, you can bracket the prevention bias). When we say that ‘most’ people who make unsuccessful suicide attempts live to be thankful that their attempts were unsuccessful, we are assuming that if people have a period in their lives when they make one or more suicide attempts and they then live the rest of their lives (or decades) without any further attempts, they could be classed as being pleased they had not killed themselves (that does not necessarily mean they are pleased with their lives). There are finer grained studies that do follow-up interviews for many decades (not self-selecting) which confirm these findings. I accept that there are some individuals that have been and still are too heavily medicated and/or institutionalised to be counted as having freedom of choice. It is possible to identify this group and exclude them.

    So far you have not explained why you reject the stats and analysis (the self-selection problem does not invalidate two hundred years of stats). You are lucky you have the Centre for Suicide Prevention at the University of Manchester, so it should be possible for you to access all the available stats and research and discuss your ideas.

    Finally, the ’saving life’ bias of the medical profession must be respected and maintained. I can assure you that it is an ethos that can be lost in some of the darker recesses of large psychiatric hospitals. A terrible place to be.

  • Kate

    Keith – I agree
    Iain – Ethics is metaphysics. Hearts and minds very definitely depend on chemistry & physics which in turn depends on nutrition. WShile I am totally sympathetic to the idea of universality in ethics (not being a relatavist)I also realise that if this universality is to come about,
    people need to be fed. One cannot talk ethics to a man or woman who wakes up in the morning wondering and worrying how they will feed the children and themselves. Universalisation of ethics must start with the very practical ethic of nutrition and providing a living for those in need together with medical care. That has to be the primary good from which others come.

    As for saying that there is no evidence that thinking and mores have not chanaged, Social history tells us very differently.
    We no longer stuff children up chimneys to clean them or kill them from the fibres of the cotton mills. Nor do we burn witches (WD must be relieved!!) We have repealed the death penalty for murder, when historically a child could be hanged for stealing a loaf. We don’t have Speenhamland,
    sanction slavery, treat women as second-class citizens in law and we have freedom of speech. All of these come from the evolution of thought informed in many cases by well nourished philanthropists.
    Human beings are individuals and quite frankly much as science and ethics would like to make their behaviour predictable and conform to immutable laws, they don’t. It would appear to me that in our Society, the only places we are treated as individuals is when we consult with a doctor or when we either break the law, or need the law to settle a dispute. Yes there is objectivity, but in both areas there is also compassion.

    Philosophy is about human beings, how we view animals (specism?) how we control our behaviour i.e. what is meant by a good life, and the good. It also tries to pronounce about language, meaning, science, literature, technology all of which are activities of human beings. We are truly self absorbed in trying to think objectively, dispassionately, coolly, when we ourselves are at the centre of the endeavour.

    I am glad that Keith wants to maintain and respect the “life-saving aspect” of doctors practice. I agree that it must be so. It is not a bias, it is their primary raison d’etre. If you ethicize that out of existence we have the scary scenario of not knowing, even if we go to hospital whether the doctor will be enabled to do his best to preserve our lives. We may then ask ourselves what is the point of hospitals furthermore what is the point of doctors?

    By the way Iain, I was not calling the doctors “monstrous and arrogant”, those epithets were meant for the hospitals legal departments who felt they did not need the assistance and expertise of a Judge.

    If an Application to a Judge has been made, then the patient can be treated while the application is being dealt with. A Court Injunction can be made very quickly.

    Yes, KW had poisoned herself, yes it was potentially fatal, but it was also eminently treatable.

    Views about the supremacy of the human being over his or her life (providing that there is no incapacity or mental illness which may make any decision to die invalid)is one thing, but to ask a doctor to abandon his own ethos in favour of the demands of a patient is a sticky point and not easily solved.


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