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Law

The Death of Sidaway: Values, Judgments and Informed Consent

15 Mar, 15 | by BMJ

Guest post by Kirsty Keywood (University of Manchester)

On 11th March Nadine Montgomery won her case before the UK Supreme Court to gain compensation for the failure of her obstetrician to warn her of risks associated with the vaginal delivery of a large infant – a risk which she would have averted by requesting a caesarean section.[1] Shortly after his birth, her son was diagnosed with cerebral palsy and a brachial plexus injury, resulting from the occlusion of the placenta during a “very stressful” vaginal delivery.

Nadine Montgomery had diabetes, which increased her chances of giving birth to a larger than average-sized baby. This, in conjunction with her small stature (she was 5 feet tall), indicated a risk that a natural delivery would bring with it a 9-10% chance of shoulder dystocia. Were dystocia to occur, attempts to dislodge the infant’s shoulders through mechanical manoeuvres would generate a risk of occlusion of the umbilical cord resulting in death or cerebral palsy of 0.1%. According to the obstetrician, Dr McLellan, the risk of shoulder dystocia did not merit specific mention in discussions with diabetic patients, because the risk of an adverse event associated with shoulder dystocia was very small indeed.

Mrs Montgomery’s case before the UK Supreme Court hinged on the question of the nature of the obstetrician’s duty to the patient. more…

Flogging and the Medic

3 Mar, 15 | by Iain Brassington

You must, by now, have heard of the Saudi Arabian blogger Raif Badawi.  Just in case you haven’t (really?), here’s a potted biography: having set up the secularist forum Free Saudi Liberals, he was arrested for insulting Islam and showing disobedience.  Among the formal charges he faced was one for apostasy, which carries the death penalty in Saudi.  The apostasy charge was dropped, but he was convicted on other charges and sentenced to seven years in prison and 600 lashes.  He appealed, and this sentence was changed: it became 1000 lashes and 10 years in prison.  Why?  Does it matter?  Because Saudi Arabia.  The latest update is that the apostasy charge may be renewed, so for a second time, he faces beheading.  Part of the evidence against him is that he “Liked” a post on a Facebook page for Arab Christians.  (Remember: Saudi is one of our allies against religious extremism.)

The lashes were to be administered in batches of 50, weekly, after Friday prayers.  As I write this, he has only been flogged once; doctors have attested that he is not well enough to be flogged again.  And – with thanks to Ophelia for the link – it’s  not hard to see why:

Dr Juliet Cohen, head of doctors at Freedom from Torture, explained: “When the cane strikes, the blood is forced from the tissues beneath… Damage to the small blood vessels and individual cells causes leakage of blood and tissue fluid into the skin and underlying tissue, increasing the tension in these areas.

“The more blows are inflicted on top of one another, the more chance of open wounds being caused. This is important because they are likely to be more painful and at risk of infection, which will cause further pain over a prolonged period as infection delays the wounds’ healing.”

There is also the long-term damage done to the victim’s mental health caused by flogging.

“Psychologically, flogging may cause feelings of fear, anxiety, humiliation and shame. Anticipation of the next scheduled flogging is likely to cause heightened emotions especially of fear, anxiety and difficulty sleeping… pain and fear together over a prolonged period have a deeply debilitating effect and recovery from such experiences may take considerable time,” said Cohen.

At the beginning of February, Vincent Iacopino had a post on the main BMJ blog in which he claimed that health professionals should play no part in Badawi’s flogging: more…

Bye-Bye Saatchi Bill?

1 Mar, 15 | by Iain Brassington

It would appear that Lord Saatchi’s Medical Innovation Bill is toast.

The Lib Dems, who are reportedly the ones to have vetoed it, are nevertheless being mealy-mouthed about something they should be proclaiming from the rooftops: the Bill is/ was needless at best, and possibly dangerous.  But, hey: there’s an election coming up, and cancer treatment is politically important; meanwhile, the party isn’t popular, and could probably have expected a set of “Lib Dems veto miracle cure” headlines had they made that move.

Which, when you read the Graun‘s article, isn’t a million miles away from Saatchi’s response:

“By killing the bill they have killed the hopes of thousands of cancer patients. It is as simple as that. Nick Clegg has handed down a death sentence to cancer patients.”

Which is, of course, untrue.  But, hey: whatever else he may be, Saatchi’s a great ad-man, and there’s an election coming up…

Strange Happenings in Belgium

3 Feb, 15 | by Iain Brassington

There’s a part of me that recognises this story as having been in the news before – but I don’t think I’ve written on it, so here we go.  It’s from the Telegraph, under the headline “Son Challenges Belgian Law after Mother’s ‘Mercy Killing'” – which is a reasonably pithy summation of what’s at issue.  A man, Tom Mortier, is attempting to bring a case before the European Court of Human Rights that would have Belgian laws on euthanasia scrutinised and – he hopes – declared contrary to the ECHR:

A Belgian man is going to the European Court of Human Rights after his depressed mother was killed by lethal injection under the country’s liberal euthanasia laws. […]

Mr Mortier is trying to take his mother’s case to the Strasbourg court under the “right to life” legislation in the European Convention of Human Rights. He hopes, at the very least, to trigger some debate in his country, and secure greater oversight in the way the existing rules are applied.

OK – so it’s not clear whether he’s actually got the Court to agree to hear his case (which is what “going to the ECtHR” suggests in ordinary usage), or whether he’s still attempting to get it to agree to hear it.  If it’s the latter, then he might be going to the ECtHR in the sense of being physically present – but that’s not going to achieve much.  The Telegraph isn’t clear on this.  Oh, well.  But is there anything of substance to his case?  It might have substance and still fail, of course – it’s perfectly possible for a court to say that they can see a person’s point, but that it’s not sufficiently powerful; but if it has no substance, then it ought to fail.

Based on the Telegraph‘s report, it seems that there really isn’t much substance to it.  This is not to say that there’s none – but there’s not much.  And, as we’ll see, it’s a bit strange in some ways. more…

A Bit More on Nonhuman Persons

23 Dec, 14 | by Iain Brassington

A bit of a followup to my last post: sometimes, nonhumans are granted habeas corpus:

Orangutans have been granted the status of “non-human persons” with legal rights in a landmark court ruling in Argentina. The decision clears the way for Sandra, a shy 29-year-old, to be freed from Buenos Aires Zoo after spending her entire life in captivity. […]

The ruling came after animal rights campaigners filed a habeas corpus petition – a document more typically used to challenge the legality of a person’s detention or imprisonment – on behalf of the Sumatran orangutan, who was born at a German zoo and was transferred to Buenos Aires two decades ago.

Sandra will, unless there’s a successful appeal, be moved from the zoo to a sanctuary.

In practice, this might not make all that much difference.  She’ll still be confined in a sanctuary; it would be utterly indefensible just to turf her out onto the streets, and she wouldn’t last long.  And in some cases, it’s quite possible that a well-run zoo is the best possible place in which to look after her or others like her.  Zoo, sanctuary: tomayto, tomahto.  Meh.

What matters primarily is that a point of principle is established, and secondarily that there would be some guidance about the kind of facilities that would be minimally decent.  It’s likely to be wholly acceptable, morally and legally, to keep great apes in some form of captivity if it’s in their interests, in rather the same way that we might provide a human child or an adult with an intellectual disability with sheltered or supervised accommodation, and might even limit their time away from it.  (The family home is a kind of sheltered and supervised accommodation!)  If a creature – human or orang or chimp or whatever else – can’t deal with the world around them, that seems to be morally required.  Let’s call this “soft captivity”, as opposed to the “hard” captivity of some zoos, prisons, laboratories, and so on.  The point is that, rather as we wouldn’t deny that a child or adult disabled human is a person and thus protected by the law, it does seem reasonable to extend that protection to members of other species.

I wonder how much further we could push it: it’s one thing to have a great ape in soft captivity for its own protection; and it’s one thing to say that if a great ape is in captivity, it ought to be soft captivity.  But could we make a similar claim about keeping a member of a species in soft captivity for the sake of protecting the species?

Orangs are under threat.  Now, a threat to the species is almost always a threat to the members of the species, too – and so we would almost always be unable to distinguish acting to protect individual orangs and the species as a whole.  But this needn’t be the case.  Imagine that there are two small colonies of the animal left; a genetic bottleneck means that neither is viable on its own, but, if they were combined, the species may be rescued and flourish in the future.  Furthermore, each colony is in a confined area that cannot support a bigger population.  There is no direct threat to either colony, though.  It so happens that a busy road separates the colonies, which means that they are to all intents and purposes isolated.

Would it be permissible to swing into action to take all these orangs into a sufficiently big sanctuary, and maybe to keep them there for the sake of increasing the population?  It wouldn’t obviously be in the interests of any particular living orang; but it could be in the interests of the species.  Even if the captivity is soft, it is still captivity.  Would it be justified?

Part of me thinks that it might be; but this does rely on thinking that the species qua species has a moral value and interest, aside from the value and interest of its members.  And that does seem like a bit of a stretch – especially if (as seems plausible) individual orangs have no concept of species with which they can identify.

 

Admittedly, this isn’t a medical ethics post in the strict sense – but it’s a nice story, so ner.

Rights, Duties, and Species

19 Dec, 14 | by Iain Brassington

A little earlier this year, there was a case brought before the New York courts concerning a chimpanzee called Tommy: the matter was the lawfulness of keeping Tommy confined.  Acting on Tommy’s behalf was an organisation called the NonHuman Rights Project.  The legal documentation filed is available here.  The basis of the case was not so much that Tommy was being harmed by his treatment as that he was wronged by it: to keep a chimpanzee in such conditions s a violation of certain rights, and ought not to be allowed granted a plausible application of habeas corpus, even the most comfortable of cages still being a cage – or so the claim went.  Essentially, the legal question under consideration was this: does a chimpanzee have any of the legal rights that a human has; and, if so, which?

Perhaps predictably, the suit was rejected; Justice Karen Peters found that habeas corpus did not apply to chimpanzees, and the other judges agreed.  Whatever legal restrictions there may be on primates, they do not fall under the rights paradigm.

The reasoning here strikes me as being a touch… well, wonky.

A significant part of the argument revolves around what kind of thing counts as a person, and so ought to have the rights of a person.  It’s not difficult to see why this is important in bioethics, because it’ll impinge on what happens in laboratories, and – potentially – on what happens in a human uterus or neonatal unit.  If the definition of “person” extends to chimps, the suit goes, then habeas corpus should apply.  If it doesn’t, then there’s no reason to suppose that it would.  The judgement is that personhood does not apply to chimps.  The term has, the court found, never been explicitly defined; and habeas corpus relief has never been granted to any nonhuman.  This wouldn’t mean that it shouldn’t be; the question then would move on to examining the ought question.

For Peters, there is no ought here, and this conclusion is based on an appeal to a particular definition of “person”.  It’s worth quoting the ruling at length here: more…

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…

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