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In the Courts

Legal Comment on Nicklinson, Lamb and AM Appeals

27 Jun, 14 | by Iain Brassington

Guest post by Alexandra Mullock, University of Manchester

The Supreme Court, in the long awaited verdict in the Nicklinson appeals, essentially delivered both good news and bad news for all concerned. The appeals by Jane Nicklinson (continuing her late husband’s battle), Paul Lamb and AM (known as Martin) were all rejected. The DPP won her appeal against the court of Appeal’s decision that a more specific prosecution policy was needed. However, the upshot of this highly unusual judgment is that the losers have good reason to feel quite cheerful and the DPP has won a rather hollow victory.

To recap on the facts, the late Tony Nicklinson, who suffered from locked-in syndrome following a catastrophic stroke several years ago, began his legal challenge in the High Court with an application for a declaration that it would be lawful for a doctor to give him a lethal injection or to assist him in terminating his own life by virtue of the common law defence of necessity. If that was not possible, Mr Nicklinson asked the court to declare that the current law (regarding murder and assisting in suicide under the Suicide Act 1961) was incompatible with Article 8 of the Convention. The High Court rejected all these arguments. Immediately following his defeat, Mr Nicklinson refused all food and medical treatment, dying a few days later. However, Mrs Nicklinson continued her late husband’s legal battle and she was joined in the Court of Appeal by another man, Paul Lamb, who applied for the same relief as Tony Nicklinson. A third man, Martin, wants a carer or health care professional to assist him to travel to Dignitas in Switzerland in order to have an assisted suicide, but, in view of the current prosecution policy – which places professional assistors at greater risk of prosecution – such a person would run the risk of a criminal prosecution. Consequently, Martin asked for an order to compel the DPP to clarify and modify her policy so that a compassionate carer, doctor or nurse could assist him. Martin’s claim also failed in the High Court but unlike the others, he won a partial victory in the Court of Appeal.

Following media reports that the Supreme Court Justices were at loggerheads over their verdict, the judgement reflects this conflict and is remarkable in a number of ways. more…

Nicklinson Loses Right-to-Die Case

25 Jun, 14 | by Iain Brassington

No surprises at the result, but the ruling itself looks like it might make for interesting reading.  Analysis to follow…

Aintree University Hospital NHS Foundation Trust v James: Best Interests and Futility under the Judicial Microscope

14 Nov, 13 | by BMJ

Guest post by Daniel Sokol, barrister at 12 King’s Bench Walk / King’s College London.

Eight years after coming into force, the Mental Capacity Act 2005 has finally reached the scrutiny of the Supreme Court in Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67.

David James was a professional musician, and a family man.  He had three children, three grandchildren, and many friends.  In May 2012, he acquired an infection in hospital which resulted in his admission to the critical care unit.  He was put on a ventilator.  In the following months, his condition fluctuated.  At one point, his heart stopped and he required 6 minutes of CPR.  He later underwent a tracheostomy, and received artificial nutrition and hydration.  Two months after his admission in hospital, he lost the capacity to make decisions about his medical treatment.  In spite of this, Mr James was able to recognise his wife and son, to kiss them, to follow their movements with his eyes, and, on occasion, to smile.  His prospects of leaving the hospital were nonetheless slim.

In September 2012, the hospital sought a number of declarations from the Court of Protection, one of which was that it would be in Mr James’ best interests not to receive certain treatments, including CPR, in the event of his deterioration.  The family disagreed.  They felt he still enjoyed life and that, each time he contracted an infection, he managed to pull through.

The judge at first instance refused to make the declarations.  He did not consider the treatments to be futile or unduly burdensome.

The hospital trust appealed to the Court of Appeal.  By then, Mr James’s condition had deteriorated dramatically.  He was comatose, or semi-comatose, and completely ventilator-dependent.  The Court allowed the appeal and made the declarations.  On 31st December 2012, Mr James suffered a cardiac arrest and died.

Mr James’s widow appealed to the Supreme Court. more…

Fitness to Practise Revisited

26 Jul, 13 | by Iain Brassington

***UPDATE: Important codicil at the end***

Back in March, I posted something about what I took to be a slightly odd Fitness to Practise decision by the GMC in respect of one Mohammed Al-Byati.  Via the BMJ, here’s another case that seems a bit strange:

A doctor who abducted her six year old daughter from her estranged husband nearly two years ago and took her to Pakistan has been struck off by a panel of the Medical Practitioners Tribunal Service (MPTS).

[...]

The MPTS panel, sitting in Manchester, acknowledged that Dar’s conduct did not relate to her medical practice.  But panel chairman Michael Whitehouse said that misconduct could also involve conduct “of a morally culpable or otherwise disgraceful kind,” which could prejudice the reputation of the profession.

The emphasis is mine, though it’s the stuff about the “reputation of the profession” that intrigues me.  If Dar has breached a court order, or is a kidnapping suspect, then fine – but that’s a matter for the courts.  She perhaps wouldn’t be able to practice if found guilty and imprisoned, but that’s a different matter.  It’s not obviously the GMC’s business.

Now, sometimes a profession might have an interest in disciplining people who misuse their association with it.  more…

News from Wisconsin: It’s not OK if your Child Dies, even if you’re Praying

17 Jul, 13 | by Iain Brassington

(Note: I wrote this a couple of weeks ago, but didn’t actually post it for some reason.  I’ve no idea why it’s taken me so long.  But it’s here now…)

Via Facebook a couple of weeks ago, I came across this story, about a couple whose conviction over the death of their child has been upheld:

A mother and father who prayed instead of seeking medical help as their daughter died were properly convicted of homicide, the Wisconsin Supreme Court ruled Wednesday in a decision that dramatically limits legal immunity for parents who turn to God rather than science to heal their children.

[...]

Most states, including Wisconsin, created exemptions from child abuse charges for prayer-healing parents in the 1970s to meet federal requirements.

That last sentence is one I find pretty astonishing; and I thought it worth having a dig around to see what I could learn about Wisconsin’s laws in particular.

This one sets the scene:

Practice of Christian Science. No law of this state regulating the practice of medicine and surgery may be construed to interfere with the practice of Christian Science. A person who elects Christian Science treatment in lieu of medical or surgical treatment for the cure of disease may not be compelled to submit to medical or surgical treatment.

I’m puzzled by the particular emphasis here.  Does Christian Science have a big following in Wisconsin?  Why does it get special mention?  Still: I guess that the gist of the law is unobjectionable – it says, in effect, that a person with capacity mayn’t have treatment forced on them, which is fair enough.  We might even infer that the person who drafted the law thought Christian Science so daft that it needed to be spelled out explicitly that people invoking it have capacity, whatever the appearance.

Still: electing to refuse treatment is one thing; refusing it on behalf of another is another.  It’s at this point that things get a bit weird.  This law, for example, states that

[a] determination that abuse or neglect has occurred may not be based solely on the fact that the child’s parent, guardian, or legal custodian in good faith selects and relies on prayer or other religious means for treatment of disease or for remedial care of the child.

And this feeds into the statute that is, as far as I can see, most relevant to the Neumanns’ case, with §6 being particularly noteworthy:

Treatment through prayer. A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing permitted under s. 48.981 (3) (c) 4. or 448.03 (6) in lieu of medical or surgical treatment.

Crikey.  I don’t know how that’s justifiable.  I mean, it’s one thing to say that families have the right to function as they will, and that parents have the right to raise their children as they see fit.  I’m not sure that they do (morally, I mean, not legally) - but even if they do have such a right, one would have thought that it has limits.  It’s not hard to think of lurid examples of where the “right” might run out.  But it’s tempting to think that praying instead of seeking treatment that, y’know, has a good evidential basis, might be a straightforward and non-lurid instance of the right petering out.  “Treatment by spiritual means” is a bit rum, too.

If you’ve got certain convictions, you shouldn’t be surprised if you end up with a second conviction of  a quite different sort.

Charles Foster ponders the case here.

Cutting Class: Thinking about Self-Harm without Disgust

29 Mar, 13 | by BMJ

Guest Post by Kerry Gutridge* and A.M. Calladine

Imagine you are a doctor, nurse or teacher and someone in your care asks for a razor.  The person you look after wants to slice into their own skin and draw blood. They are compelled to hurt themselves.  They have an overwhelming urge to feel a momentary visceral sense of pain.  Would you provide them with a blade?  Is it ever right to enable people in your care to harm themselves?

At first glance such questions may appear shocking and seem likely to elicit a strong gut reaction. Surely it can’t be right for people in a position of authority, with a duty of care to be seen to apparently condone or provide a means for vulnerable people to engage in such self-destructive behaviour?

Yet recent media reports (such as this and this) suggest that such a choice has already been made.  Teachers at Unsted Park gave a “special needs” pupil sterile Bic safety blades so they could injure themselves in the privacy of the school bathroom.  According to reports, staff checked in on the pupil every two minutes.  After the pupil had finished cutting teachers cleaned and dressed their wounds.

The news story attracted a predictable sense of outrage.  Readers commenting on newspaper message boards found the school’s decision at best incomprehensible and often disgusting and immoral.  According to the top-rated comments on the Daily Mail website:

That’s Nuts!  What’s wrong with these people??!!!

And

Absolutely shocking, I am by far an expert in the field but that sounds ridiculous to me

Unfortunately such feelings of revulsion and disgust are not limited to the comment boards of the Mail.  One of the authors of this blog was told by another academic that their doctoral abstract on the subject of self-harm made them feel physically sick.

The news reports on the case at Unsted School are vague.  The nature and severity of the pupil’s injuries are unclear and the age of the pupil is put between seven and nineteen.  Without more detailed information it would be disingenuous to comment at length on this specific case.  The Unsted Park School policy of allowing the pupil to self-harm has since been abandoned after some of the teachers complained to the local authority.

It is not the first time that the issue of institutional enablement or allowance of self-harm has been subject to scrutiny. more…

Journal of Medical Ethics – Special Issue on Circumcision

19 Mar, 13 | by BMJ

Guest Post by Brian Earp

The Journal of Medical Ethics is pleased to announce the forthcoming release of a special issue – “The Ethics of Male Circumcision”  - to be published in full in the coming days.  Selected papers have already been posted Online First and can be seen by clicking here. Contributions cover a wide range of perspectives, and were invited from leading legal scholars, bioethicists, political theorists, pediatricians, and medical historians with expertise in this area. All essays were subjected to rigorous peer review. A list of main contributors and highlights from the arguments showcased in this Special Issue can be found below.

Background

Recent events have re-ignited controversy around the oft-debated issue of the moral and legal permissibility of infant male circumcision.

According to a recent German court ruling, circumcising minors on religious grounds amounts to grievous bodily harm.  The court held that children have fundamental rights to bodily integrity and self-determination that cannot be outweighed by the right of parents to practice their religion and raise their children as they see fit. German chancellor Angela Merkel suggested that the ruling was an affront to religious liberty, while anti-circumcision groups as well as a number of ethicists hailed it as a victory for child rights.  In December of 2012, the German parliament passed a law to protect religious circumcision from future legal threats.

Meanwhile, in New York City, health officials recently succeeded in enacting a consent form requirement for circumcision after it was revealed that dozens of infants have contracted herpes in the last decade from a form of the surgery practiced by some Orthodox Jews. This form, called  , involves the sucking of blood directly off of the infant’s penis. Disagreements about the relative importance of religious tradition versus health concerns have shaped the ensuing controversy there.

Finally, in late summer of 2012, the American Academy of Pediatrics (AAP) issued a new circumcision policy statement and technical report, in which the child health organization suggested that the possible health benefits of circumcision outweigh the risks and complications.  This pronouncement was cited favourably by some commentators, while other groups, such as Doctors Opposing Circumcision, issued harsh criticisms.  The Journal of Medical Ethics announces today that it is hosting a continuation of this debate in the pages of its Special Issue, publishing a further critique of the AAP report and policy statement, alongside a formal reply by the AAP. more…

R v Catt: The (Slightly Strange) Judge’s Remarks

17 Sep, 12 | by Iain Brassington

Earlier today, Sarah Catt was jailed for 8 years for inducing the termination of her own pregnancy at 39 weeks’ gestation.  The transcript of the comments of Mr Justice Cooke, sentencing, is available here.

I don’t want for this to get bogged down in questions of the moral rights and wrongs of abortion, at whatever stage during the pregnancy it takes place, or with what the law should permit.  Rather, I just thought that I’d highlight a couple of aspects of Cooke’s comments.

12. You could well have been charged under Section 1 of the Infant Life (Preservation) Act 1929 for destruction of a child capable of being born alive. Section 1(2) of that Act provides a presumption in law that if a woman is pregnant for 28 weeks, the child en ventre sa mere is capable of being born alive.

[...]

16. There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners. more…

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