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Life and Death

Savita Halappanavar: A Woman who Died Needlessly, not a Political Wedge’

17 Nov, 12 | by BMJ

Guest post by Sorcha Uí Chonnachtaigh

I am going to, rather controversially, agree with one aspect of the statements of pro-life activists commenting on this case. That is not something I thought I’d ever say. Like, ever ever.

A statement issued by Youth Defence (one of Ireland’s most radical pro-life organisations) made the valid point that “Irish doctors are always obliged to intervene to save the life of a mother, even if that risks the life of her baby”. Because of some misconceptions about the reasons for Savita’s maltreatment, it is assumed that Ireland needs to reform its abortion law so that this never happens again.  While I would strongly support abortion law reform in Ireland, it is not necessary to ensure this never happens again.  Mere legal regulation of the status quo on abortion would prevent this.  As the (limited) law stands, this should never have happened at all. While some believe that legislation to regulate access to already lawful abortions constitutes law reform, any such legislation would not alter the current legal position – it would merely give meaningful access to abortions.

I don’t agree with anything else that has been included in pro-life posts/articles (stop throwing things at your computer screens), but more on that later.  First, I want to elaborate on this to clear up some of the misconceptions about Irish law that have been expressed in condemnations of the case around the web.

If you have clicked through to this post, it is very likely that you’ve already read about the facts of Savita’s case, first reported in the  Irish Times on 14 November, and at least some of the estensive commentary pieces available on the issues arising from this case (like this, and this, and this).  (These links here are to pieces by Irish people with more informed knowledge of the legal situation.)

For the sake of comprehensiveness, I’ll provide an edited summary of the facts of the case (as reported to the Irish Times by Savita’s husband Praveen): more…

Neonatal Withdrawal of Treatment: A Doctor Writes…

6 Nov, 12 | by Iain Brassington

There’s a great little article recently published in the BMJ about what it’s like to be the medic considering withdrawal of feeding from a neonate.

Survival is often much longer than most physicians think; reflecting on my previous patients, the median time from withdrawal of hydration to death was 10 days.

I had no idea it’d be that long.  I had no idea it’d be that long even for healthy adults who stopped drinking, let alone already-ill neonates.  (My scientifically-naïve intuition would have been that an adult body could stand up to more than an infant one.)

The fact is ethically neutral; and we need to be careful about skipping over the fact/ value boundary too easily.  But value claims bounce off, and are informed by, factual claims, and this is the sort of thing that might well be important when considering questions about withholding and withdrawing treatment, and about killing and letting die, and all the rest of it.

And, of course, the infant isn’t the only morally relevant actor in all this:

It is draining to be the most responsible physician. Everyone is looking to me to preside over and support this process. I am honest with the nurse when I say that it is getting more and more difficult to make my legs walk me on to this unit as the days elapse, that examining the baby is an indescribable mixture of compassion, revulsion, and pain.

I can see how that’d be.

Passive Euthanasia: A Cri de Cœur

5 Oct, 12 | by Iain Brassington

Don’t worry: this isn’t another instance of me yammering on about the right to die or the right to induce death.

I’ve recently received a parcel; it contained a copy of this book by Leanne Bell, which happened to fall open at p 204.  On that page, you’ll find this passage:

Active euthanasia involves a deliberate act intended to kill [...].  This is illegal in England and Wales because it satisfies the definition of ‘unlawful killing’ and will therefore either be murder or manslaughter depending on the mens rea (that is, the state of mind) of the doctor at the time.  He is likely to face criminal prosecution, regardless of whether the patient and/or the family requested or consented to it.  By contrast, passive euthanasia involves the withholding or withdrawing of treatment from the patient, i.e. an omission rather than an act, and, in certain circumstances, can be legal. [emphasis mine - IB]

No.  Wrong.  Wrong on two fronts.  Withholding treatment may be an omission, but withdrawing it isn’t.  More importantly, while the active/ passive distinction boils down to one between administration and non-administration, it is simply not true that non-administration is the same as passive euthanasia.

Euthanasia requires the intention to end life based on a motive of beneficence directed at the person who will die.  Neither withdrawing nor withholding treatment indicates the intention to end life.  Only if you’re withdrawing or withholding treatment with the intention that this should end life have you committed passive euthanasia.

There’s a simple test you can run here: When withdrawing or withholding treatment, would it be coherent to hope for the patient’s survival – however miraculous - without further intervention?  It would not be coherent in cases of euthanasia, because you can’t intend that life should end and yet hope that it doesn’t.  It could be coherent otherwise.

Or another version of the same test: If you are considering withholding or withdrawing treatment and the patient does not die, would you see this as contrary to your intention?  If yes, you’re considering passive euthanasia; if no, you aren’t.

Bell is by no means alone in getting PE wrong.  The mistake is all over the place – both in the clinical ethics literature, and in the wider public domain.  I’m not wholly sure where it’s come from, but I suspect it may derive from Rachels having made it in”Active and Passive Euthanasia“, and then a little more explicitly in “Killing and Letting Die“:

Many people believe that “passive euthanasia” – allowing terminal patients to die, rather than pointlessly prolonging their lives – is sometimes permissible; but they also believe that killing patients is always wrong.

I’ve got a lot of time for Rachels, and much of what he says on killing and letting die in these essays is good.  But this is wrong.  Even good essays can have wrinkles in them; and this is a big one.  And if it’s the source of the same mistake being made elsewhere, that’s quite serious. 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…

How Not to Respond to the Nicklinson Verdict

23 Aug, 12 | by Iain Brassington

Unsurprisingly, the ruling handed down last week in respect of Tony Nicklinson and “Martin” has generated a lot of comment.  A lot of that comment has disagreed with the ruling.  David Allen Green, the Staggers‘ legal correspondent and also known as the blogger Jack of Kent, tweeted that it was a “dreadful court decision… depriving a person of basic dignity“; and in the wake of Nicklinson’s death, added that he thought it was still “entirely open for courts to rule in his favour rather than blame Parliament“.  Over at the Practical Ethics blog, Roger Crisp suggests that the High Court might even have acted unlawfully.

Sympathetic as I am to Nicklinson’s basic moral claim, I think that such responses are mistaken.  Not in the sense of their being in any way disreputable – it’s just that I’d argue for a different conclusion.  But, as such, it’s the possibility of an argument that matters, and there’re arguments to be had either way, some of which will be powerful, and some of which will be less so.  That’s the nature of debate.

There are others, though, whose response seems to me to get things entirely wrong.  I’ll give one example from each side. more…

NIcklinson and “Martin” Lose their Cases

17 Aug, 12 | by Iain Brassington

The ruling, and a summary, are available here.

I wouldn’t want to say that I told you so… but I did.  Twice.

And I can’t help but to wonder if this case should ever have come to court.  Sympathetic as I am to the moral arguments in favour of assisted dying, whether those arguments can be successfully translated into law is another matter (I mean: I think they probably can, but that doesn’t follow naturally even if the moral arguments are watertight) – and whether that law is something that the courts are in a position to determine is another one still.  Judge-made law is often perfectly fine – but there’s a world of difference between a judge tweaking the law in respect of section 17(1)(a) of the Arcane and Obscure Insurance Regulations Act 1957, and altering the law on murder, which is what the judges in this case were being asked to do.

Saimo Chahal, Tony Nicklinson’s solicitor, admitted in a Channel 4 News item earlier in the year that the arguments being presented on his behalf were “extremely novel and far-reaching” (skip to about 2:05).  In the same way, a lot of the coverage of the last 24 hours has mentioned that the case was described as “a full-frontal assault on the law of murder”.  I can’t actually find where that turn of phrase was used, or by whom (The Guardian quotes Andrew Fergusson of Care not Killing as saying that this is how the case had been described in court – a quotation that seems to come from his piece on the CMF blog but which isn’t currently linked there; I’d welcome any other pointers) - but in a Dispatches film in June, the narrator did call the case “a fundamental challenge to the law on murder” (go to about 9:20).

Irrespective of the precise phrasing, though, the fact that the case would have generated such a huge change in the law – that it was novel and far reaching, and was a fundamental challenge to the extant law – is pretty obvious.  And it’s for that reason that, I suspect, the case was doomed before it was opened.  The courts can only work within the law as it stands, and even when judges create law, they tend to do so only in the context of established law.  Anything more, and they’re likely to say, “Whoa, matey: this ain’t my role.”

Thus Toulson at para 150 in the ruling:

To do as Tony wants, the court would be making a major change in the law.  To do as Martin wants, the court would be compelling the DPP to go beyond his established legal role.  These are not things which the court should do.  It is not for the court to decide whether the law about assisted dying should be changed and, if so, what safeguards should be put in place.  Under our system of government these are matters for Parliament to decide, representing society as a whole, after Parliamentary scrutiny, and not for the court on the facts of an individual case or cases.

And thus Royce at para. 151:

Some will say the Judges must step in to change the law.  Some may be sorely tempted to do so.  But the short answer is that to do so here would be to usurp the function of Parliament in this classically sensitive area.

And that’s why – as I predicted on this blog before – irrespective of the moral merit of the ruling, it was pretty much inevitable.  And that being the case, you have to wonder what the point was of bringing the case to begin with.

Oh, and since we’re talking about assisted dying…

18 Jun, 12 | by Iain Brassington

… read this from Current Oncology - “Pereira’s Attack on Legalizing Euthanasia or Assisted Suicide: Smoke and Mirrors” – if you haven’t already.

(via the Bioethics International FB group… and a million others.)

Canadian Ban on Assisted Suicide “Unconstitutional”

18 Jun, 12 | by Iain Brassington

A Court in British Columbia has ruled that the law against assisted suicide (AS) in Canada cannot be reconciled with the country’s Charter of Rights and Freedoms - notably item 7 -

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

- and item 15 -

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The full ruling is available here (H/T to Ophelia Benson for the link): it’s long, and I’ve not had a chance to read it, so contributions in the comments below this post would be welcome.  From what I can tell, the decision is still liable to go to appeal, so it might yet turn out to be a false start; but it’s highly notable nonetheless.

Though I’ve made no bones here about my broad support for the legalisation of assisted dying, both as assisted suicide and euthanasia, I do wonder if in this case some of the judge’s reasoning may be a bit iffy.   more…

Well, Consider my Jaw Dropped.

2 Jun, 12 | by Iain Brassington

I know it’s not long since I last posted about the Christian Medical Fellowship’s blog, and I would ordinarily leave it a bit longer… but I’m about to go off on one.  Forgive me.  I’ve had a hard week marking exam scripts, and I’m tired and stressed and cranky, and this is just… well…  Look: I hear that ginger is quite a good anti-emetic.  You might want to go and find some.

You will, of course, be aware of the recent killings in Houla: 108 civilians shot at close range or stabbed in what the UN says may amount to a crime against humanity.  You may also have read about the arrest of Mick and Mairead Philpott, suspected of the murder of their six children in a housefire.  Peter Saunders, on the CMF blog, under the title “There are Few Things More Horrifying than the Slaughter of Innocent Children”, writes that

Every child’s death is a tragedy but there are few things more reprehensible than the killing of children by adults. Children are rightly seen as amongst the most vulnerable and defenceless members of society and deserving of special protection.

It is therefore not surprising that Western governments are acting quickly at the highest level to expel Syrian diplomats and impose sanctions and the police are giving high priority to investigating the Derby fire for which the children’s own parents are now suspects.

Whether or it turns out that the Syrian government was directly involved in the latest atrocities, or whether or not the parents are charged with starting the fire, it is nonetheless deeply ingrained in the human psyche that public authorities have a duty to protect the vulnerable and that the strongest advocates for children should be their own parents.

As I read that, I had a horrible feeling about what was going to come next.  I suspect many people reading this now will have the same feeling.  The same creeping nausea.  He’s used the phrase “slaughter of innocent children”.  He’s not going to say… is he?

Reader, he is. more…

IVF and Birth Defects: Is there a Moral Problem?

21 May, 12 | by Iain Brassington

It was reported a couple of weeks ago that researchers had found a link between certain forms of assisted conception and an increased risk of birth defects.  The paper, published in the NEJM, suggested that ICSI (intra-cytoplasmic sperm injection) correlated with defets in just about 10% of births.  The base rate is about 5.8%, rising to around a 7.2% defect rate from IVF.

Does this tell us anything of any great moral import?

Several things spring to mind.  One is that, granted the claim that it’s better not to be born with a defect, it’s presumably also better for assisted reproduction not to elevate the risk of defects above the natural level.  There might even be an obligation to do more research into assisted reproduction, so that we can ensure the fewest possible birth defects (and maybe get better at generating healthy babies than nature: even a rate of 5.8% looks a bit slapdash).  Slightly more radically, some might claim that there ought to be a moratorium on certain assisted reproduction procedures – ISCI in particular – for the sake of minimising the number of birth defects.

Let’s deal with the radical claim first (what can be said about that will also speak to the less radical one). more…

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