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Law

Saatchi Bill – Update

28 Oct, 14 | by Iain Brassington

Damn. Damn, damn, damn.

It turns out that the version of the Medical Innovation Bill about which I wrote this morning isn’t the most recent: the most recent version is available here.  Naïvely, I’d assumed that the government would make sure the latest version was the easiest to find.  Silly me.

Here’s the updated version of §1(3): it says that the process of deciding whether to use an unorthodox treatment

must include—

(a) consultation with appropriately qualified colleagues, including any relevant multi-disciplinary team;

(b) notification in advance to the doctor’s responsible officer;

(c) consideration of any opinions or requests expressed by or on behalf of the patient;

(d) obtaining any consents required by law; and

(e) consideration of all matters that appear to the doctor to be reasonably necessary to be considered in order to reach a clinical judgment, including assessment and comparison of the actual or probable risks and consequences of different treatments.

So it is a bit better – it seems to take out the explicit “ask your mates” line.

However, it still doesn’t say how medics ought to weigh these criteria, or what counts as an appropriately qualified colleague.  So, on the face of it, our homeopath-oncologist could go to a “qualified” homeopath.  Or he could go to an oncologist, get told he’s a nutter, make a mental note of that, and decide that that’s quite enough consultation and that he’s still happy to try homeopathy anyway.

So it’s still a crappy piece of legislation.  And it still enjoys government support.  Which does, I suppose, give me an excuse to post this:

Many thanks to Sofia for the gentle correction about the law.

An Innovation Too Far?

28 Oct, 14 | by Iain Brassington

NB – Update/ erratum here.  Ooops.

One of the things I’ve been doing since I last posted here has involved me looking at the Medical Innovation Bill – the so-called “Saatchi Bill”, after its titular sponsor.  Partly, I got interested out of necessity – Radio 4 invited me to go on to the Sunday programme to talk about it, and so I had to do some reading up pretty quickly.  (It wasn’t a classic performance, I admit; I wasn’t on top form, and it was live.  Noone swore, and noone died, but that’s about the best that can be said.)

It’s easy to see the appeal of the Bill: drugs can take ages to come to market, and off-label use can take a hell of a long time to get approval, and all the rest of it – and all the while, people are suffering and/ or dying.  It’s reasonable enough to want to do something to ameliorate the situation; and if there’s anecdotal evidence that something might work, or if a medic has a brainwave suggesting that drug D might prove useful for condition C – well, given all that, it’s perfectly understandable why we might want the law to provide some protection to said medic.  The sum of human knowledge will grow, people will get better, and it’s raindrops on roses and whiskers on kittens all the way; the Government seems satisfied that all’s well.  Accordingly, the Bill sets out to “encourage responsible innovation in medical treatment (and accordingly to deter innovation which is not responsible)” – that’s from §1(1) – and it’s main point is, according to §1(2), to ensure that

It is not negligent for a doctor to depart from the existing range of accepted medical treatments for a condition, in the circumstances set out in subsection (3), if the decision to do so is taken responsibly.

Accordingly, §1(3) outlines that

[t]hose circumstances are where, in the doctor’s opinion—

(a) it is unclear whether the medical treatment that the doctor proposes to carry out has or would have the support of a responsible body of medical opinion, or

(b) the proposed treatment does not or would not have such support.

So far so good.  Time to break out the bright copper kettles and warm woollen mittens*, then?  Not so fast. more…

How Not to Argue against a Proposed Law

5 Jun, 14 | by Iain Brassington

Yes, yes: it’s tedious and internecine, but it’s almost a year since I had a pop at Kevin Yuill’s book on assisted dying; how about an update?  Well, conveniently, there’s this, in which he tries “to convince my fellow liberal minded atheists to reconsider their support for legalized assisted dying”.  OK, then.  First up, this isn’t a pro-legalisation post: I’m much more interested in looking at the arguments presented in their own terms.  I think they’re bad; but that is to do with their form rather than their content.  Indeed, one of Yuill’s opening moves is something to which I’m sympathetic: in respect of Lord Falconer’s latest Bill to legalise assisted dying, he points out that

the chief sponsoring agency (Dignity in Dying) lamely differentiates between the dying (those with six months or less to live) and those with more time.
If the latter ingest poison in a room by themselves – well, that’s suicide.  But if those with less than six months take poison with the intent to end their lives, that is not suicide at all but <ahem> assisted dying. Nope, me neither.

I agree that the six-month time limit is arbitrary, and probably morally indefensible.  But…

*deep breath*

But note how Yuill botches even this point. more…

What should we Think about Belgium’s Child Euthanasia Law?

15 Feb, 14 | by Iain Brassington

With any luck, the nuts real-world work schedule of the past few months* will begin to ease in a few days, so I should be able to start blogging more frequently soon; but I thought I’d take a moment out from writing jurisprudence lectures to do some thinking out loud about Belgium’s recent change to its euthanasia law, which legalises it for children.  This is partly because it’s interesting in its own right, and partly because I’m debating it on Radio 4’s Sunday programme this week.  I’ve drafted this post before the interview’s recorded, but I’m not publishing it until after (though before the broadcast); let’s see how my thoughts here pan out on air…**

For reference, the text of the law is available here in French, and here in Dutch – thank goodness for A/S levels.  A decent précis provided by AP is hosted here; and Christian Munthe has an unofficial translation here.

OK: so, what should we think about it? more…

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…

Drug Legalisation in Uruguay: Opening up Pandora’s Box

8 Aug, 13 | by BMJ

Guest post by Melissa Bone, University of Manchester

Uruguay is poised to become the first country in the world to legalise and regulate the sale of cannabis for recreational use.  On the 31st July 2013 a draft bill legalising cannabis was passed by members of Uruguay’s lower house of congress, where 50 out of a possible 96 MPs voted in its favour.  If approved by the senate as is expected then the government will legally control the production, distribution and sale of cannabis.  The bill allows for each Uruguayan household to cultivate up to 6 cannabis plants.  Alternatively, residents could join a co-operative which would be licensed to grow up to 99 plants.  Private firms will be able to produce cannabis as well, but they will be required to sell it to the government, who will in turn sell it to consumers through pharmacies.  Only Uruguayan citizens will be able to purchase cannabis; they can purchase up to 40g per month (minors will be excluded).  Driving while under the influence will remain a crime.

Many commentators recognise that Uruguay has taken this bold step due to the devastation that’s wreaked by the so-called “war on drugs”.  This phrase was first coined by President Nixon in1971, and it is widely employed on both sides of the drug legalisation debate to describe a global position that prohibits the possession, production, and sale of certain psychoactives, all of which are listed in the UN drug conventions.  Advocates of drug reform often use the phrase to expose the aggressive and militant tactics which are used in producer countries especially, in an attempt to restrict the production and trade of illicit substances.  For instance, the Latin American region has the highest murder and drug-related violence rates in the world, drug cartels have infiltrated and corroded various positions of power, infamous aerial fumigation operations have destroyed farmer’s livelihoods, and this along with numerous other human rights abuses provides the backdrop for Uruguay’s brave decision.

Predictably, the International Narcotics Control Board (INCB), a committee tasked with ensuring compliance to the UN drug conventions, doesn’t quite see it this way. more…

But that’s not what it says, is it?

25 Jan, 13 | by Iain Brassington

Today’s blast of righteous indignation is directed towards New Mexico.  House Bill 206 says, in essence, that… well, it’s short, so here it is in full:

HOUSE BILL 206

51ST LEGISLATURE STATE OF NEW MEXICO - FIRST SESSION2013

INTRODUCED BY

Cathrynn N. Brown

AN ACT

RELATING TO CRIMINAL LAW; SPECIFYING PROCURING OF AN ABORTION AS TAMPERING WITH EVIDENCE IN CASES OF CRIMINAL SEXUAL PENETRATION OR INCEST.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.  Section 30-22-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 22-5, as amended) is amended to read:

“30-22-5.  TAMPERING WITH EVIDENCE.–

A.  Tampering with evidence consists of destroying, changing, hiding, placing or fabricating any physical evidence with intent to prevent the apprehension, prosecution or conviction of any person or to throw suspicion of the commission of a crime upon another.

B.  Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime.

C.  Whoever commits tampering with evidence shall be punished as follows:

(1)  if the highest crime for which tampering with evidence is committed is a capital or first degree felony or a second degree felony, the person committing tampering with evidence is guilty of a third degree felony;

(2)  if the highest crime for which tampering with evidence is committed is a third degree felony or a fourth degree felony, the person committing tampering with evidence is guilty of a fourth degree felony;

(3)  if the highest crime for which tampering with evidence is committed is a misdemeanor or a petty misdemeanor, the person committing tampering with evidence is guilty of a petty misdemeanor; and

(4)  if the highest crime for which tampering with evidence is committed is indeterminate, the person committing tampering with evidence is guilty of a fourth degree felony.”

SECTION 2.  EFFECTIVE DATE.–The effective date of the provisions of this act is July 1, 2013.

The new bit is section B.

In a statement, the congresswoman who introduced the Bill, one Cathrynn Brown, said that her intention was to punish the person who commits incest or rape and then procures or facilitates an abortion to destroy the evidence of the crime.

Hmmm.  Except that that’s not what it says, is it?  Maybe she should read the text of her own Bill.  It talks about procuring an abortion, as well as compelling or coercing another person to have one.

I think that the second bit is actually fairly unobjectionable.  To compel someone to have a medical procedure, whomever that someone is, and whatever the procedure, is to wrong them; and if you compel them to have the procedure in order to remove evidence of another wrong, then the wrongness is multiplied.  But, y’know… that first bit… um… more…

Is Medical Equipment Halal? Kosher?

23 Nov, 12 | by Iain Brassington

A recent intercalating student of mine got in touch with this query the other day:

Total parenteral nutrition is given as a replacement for nutrition where the patient cannot or should not be digesting food: it is given intravenously so bypasses digestion.  Two patients have asked my current educational supervisor if the TPN solution is halal, and no-one, including the manufacturers, seems to know. There are various parts that are derived from animals but the manufacturers can’t say where from, even which animal seemingly.

The two relevant patients have been told the ‘don’t know’ answer and have agreed to continue taking the TPN but the team is now left wondering whether to tell all patients before they commence TPN that they do not know the origin of the products used and therefore the TPN cannot be guaranteed as halal, or indeed kosher either.

A pharmacist has also pointed out that beef gelatine is also used in many tablet coatings and this is generally never discussed with patients.

There is a suggestion in this paper that we should routinely be telling all patients about gelatine in tablets and IV infusions, which is definitely what my instinctual reaction agrees with.  The authors suggest that continuing not to do so would mean modern medicine “might be thought to be following the sort of self certain, paternalistic line that doctors were accused of decades ago in relation to Jehovah’s Witnesses”. I think that sums it up quite nicely!

Another interesting question comes from a legal point of view – of the regulations surrounding labelling of food products, which I think are increasingly strict, and the information provided by manufacturers about origins of medical products and then how much of that is communicated to patients.  (I think Margot Brazier might have mentioned this issue in our regulations seminar.)

Having chatted with the student in the pub since, we agree that, ethically at least, it’s a bit of a no-brainer: since it isn’t an imposition on anyone to warn that we can’t be sure of the origin of the treatment, there’s no harm in doing so – and, for the sake of preserving patients’ control over what goes into their bodies, we ought.

The legal question is potentially quite interesting here.  Going off on one a bit, could there be a negligence issue here – on the grounds that it’s reasonable to suppose that at least some patients might want to know the information, even if they don’t expressly say they would (because it never crosses their mind)?  Not to warn could be a serious omission here – and I’m wondering whether it might make a difference to consent.  I genuinely don’t know: were someone to make a case that they should have been warned and would not have consented had they known, would there be legal mileage in it?

Any thoughts, anyone?

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