The Resource Management Strategies: Medical Treatment on Economic Grounds - Research Paper Example

 Introduction The decision in Airedale N.H.S. Trust v Bland was a landmark decision in the area of euthanasia. In this case, the House of Lords held that the life supporting system, which was connected to the patient, should be withdrawn with immediate effect. This act of withdrawing the life support systems permitted the patient to die with dignity1. The decision in Bland concerned the practice of passive euthanasia; which provides for the termination of the life of patients, without their consent. The Law Lords held that the doctors did not owe a duty to feed Tony Bland through tubes, despite the fact that such tube feeding was a component of the medical treatment being made available to him. Subsequently, the feeding tubes were withdrawn from Tony Bland, which resulted in his death2. The Law Lords opined that tube feeding was not in the best interests of Tony Bland and that its continuation would be futile. This was an example of euthanasia by omission. The British Medical Association had set up the code of conduct for all doctors in the UK. In the light of the decision in the Bland case, this code of conduct was held to be compatible with the duty of care owed by physicians. This code allowed doctors to withdraw life sustaining mechanisms from patients, if they were convinced that their continuation would be in vain. There was no consent from Tony Bland to his death. He was not a dying patient, and he was not allowed to die naturally. The feeding tubes connected to him were withdrawn. He was deprived of nutrition and hydration, which were essential for keeping him alive3. This incident is alarming in its ramifications and sets a dangerous precedent for patients who are unable to express their consent of disagreement with regard to the continuation of termination of their life. Euthanasia and physician assisted suicide are very perceptive issues. That is why doctors in the UK are reluctant to indulge in such activities. However, this is not the same in other European countries, where doctors are more willing to undertake end of life decisions4. The UK’s doctors are of the opinion that patients should be provided with care, comfort and quality of life, instead of terminating their life. In R v. Cox, the court held that Dr Cox was guilty of attempted murder; and imposed a suspended sentence of imprisonment for one year5. As such, active euthanasia is considered equivalent to murder, in the United Kingdom. The Dianne Pretty case differs considerably from the Bland case. In 1999, Diane Pretty was diagnosed with Motor Neurone Disease. She was totally disillusioned with her predicament and decided that she wanted to die in the presence of her family members and at home6. The Dianne Pretty case exposed the stance of English Law in prohibiting assisted suicide, sought by the patient. The judiciary that had permitted Bland to be put to death, refused to accede to the supplication of Diane Pretty. Thereupon, she approached the European Court of Human Rights to allow her to die with dignity; but the ECtHR did not take up her case7. Dianne Pretty had contended that the Human Rights Act provided her with a right to die8. She also argued that the Human Rights Act permitted individuals to determine when to die and the manner in which such death should take place9. The ECtHR disallowed her case; and also refused to guarantee that her husband would not be prosecuted criminally, if he assisted her in her death10. It is evident from the above that the English courts are more willing to allow assisted suicide in certain situations. The courts consider various issues before arriving at these decisions, such as the best interests of the patients. The English courts do not allow active euthanasia under any circumstance, as it is deemed to be morally unethical, in the UK. Main Body The UK’s legislation grants a right to self determination to competent adults. These individuals can consent to or reject any medical intervention or medical treatment, in accordance with this right. Competent adults can exercise this right while taking decisions irrespective of whether such decisions are rational. Consequently, competent patients can exercise this right, even if the outcome is the cessation of their life11. Although, competent patients can refuse medical treatment; the UK courts do not permit them to ask for a specific medical treatment. It is the prerogative of the attending physicians to decide upon the medical treatment that would be most appropriate for the patient12. The only duty of the physician is to provide an opportunity to the patient to obtain a second opinion. This does not hold good in instances where a competent patient demands life – sustaining treatment13. In such instances, the attending physicians have to either provide such treatment or transfer the case to some other physicians. They cannot discontinue life prolonging treatments, even if they believe that the patient was sure to expire. Any physician, who fails to provide such treatment, will be liable for criminal prosecution14. Such physicians will be prosecuted for having violated the provisions of Article 2 ECHR. The English common law provides two rights to patients with regard to the rebuttal of the presumption of life; these are the right to self determination and the right to dignity of the human body15. Article 2 ECHR is breached if the State fails to provide medical treatment, despite the requirement to do so by the extant circumstances. Moreover, the scope of the judgment was restricted to the withdrawal of treatment and considered the administration of palliative drugs to the terminally ill, and other such interventions, to be beyond its purview16. It is a long established notion that an adult of sound mind is capable of consenting to or refusing any medical intervention. All common law countries and a majority of the civil law countries have adopted this general rule. As such, an adult can refuse any life sustaining medical intervention to prolong life even though such refusal is not in the best interests of the patient. The consent of the adult has to be respected even when it poses a threat to the life of the decision maker. Such decision should be clear and unambiguous and should be in writing. The right of every individual to refuse medical treatment is based on the concept of personal autonomy17. The European Court of Human Rights recognised this concept in the famous case of Pretty v United Kingdom. Article 8 of the European Convention on Human Rights or ECHR guarantees personal privacy. The right to refuse medical treatment is in conformity with this Article18. The right to bodily and physical integrity; or the right to personal autonomy, derives from the provisions of Article 8 ECHR. Furthermore, justification under Article 8(2) is mandatory for any intrusion into bodily integrity. Any treatment without the consent of competent patients would be illegal. They are empowered to refuse medical intervention of any kind, even if the result of such deprivation were to prove fatal. This stance has been clarified by the English common law19. Therefore, doctors have to obtain the consent of patients of sound mind and competence, prior to treating them. In F v West Berkshire Health Authority, the House of Lords ruled that such withdrawal of nutrition and hydration merely constituted an act of omission20. Thus, discontinuation of nutrition from PVS patients is euthanasia by omission and not an intended act. The conflicts arising out of the best interests of patients, the right to self determination and the concept of sanctity of life; were successfully resolved, by bestowing upon the patient, a right to consent. With this right patients were empowered to reject life prolonging or life saving medical interventions. The right to dignity can be exercised even by incompetent patients. This right ensures quality of life, even for such incompetent patients; however, it requires assessment, in this regard21. The courts enact the role of responsible parents, while determining what would be in the best interests of a child. The courts, whilst exercising the duties of the state under the principle of parens patriae; cannot adopt standards that are superior to or divergent from what a reasonable and caring parent would adopt, under the same conditions22. This was established in the Re B case by the House of Lords. In Re J, the court considered that the infant could not tolerate life due to the grievous injuries suffered by it. The court further held that if the infant had the capability to make a choice, then it would choose to die23. In Re J the Court adopted the parens patriae jurisdiction; which is just as appropriate for incompetent adults. In such cases, there is a need to balance the assessments of best interests against the sanctity of life. In Re J, the severe pain and suffering of the child was the only factor that could be taken into account for disregarding sanctity of life. Some legal commentators had contended that Re J had been incorrectly decided. Their argument is that nothing can balance sanctity of life. Therefore, courts must consider the sanctity of life of patients, even if they are in a persistent vegetative state. A judicious evaluation of the advantages and disadvantages of discontinuing treatment to a child has to be undertaken by the court. Such assessment must be from the perspective of what would be in the best interests of the child. Moreover, the principal deciding criterion should be what the child would have desired, if it were possible for it to decide on its own. In addition, the court has to take into account the quality of life that the child would lead, as well as the suffering and pain that it would have to undergo if the treatment was to be continued. The medical intervention of reventilation is of a hazardous nature, and it poses a threat of further deterioration of health. In this case, it was evident that the best course to adopt would be to preclude reventilation. The court decided that it would be in the best interests of the child to withhold authorisation for reventilation. Consequently, the appeal against the withholding reventilation was dismissed by the Court24. The courts in the UK have opined that patients in a persistent vegetative state would lead a life of poor quality. Therefore, in the best interests of the patients, the courts have recommended the withdrawal of life prolonging medical interventions. In such cases, the courts accord priority to the assessment of the doctors, whether to continue the life sustaining care or to discontinue it. The courts have also concurred with the physicians’ assessment that prolonging life would not be in the best interests of the patients25. With the ratification of the ECHR in 1998, England ensured the right to dignity to patients. Article 3 ECHR states that no person is to be subjected to degraded or subjected to inhuman treatment. As such, patients can rebut the state’s presumption in favour of life by invoking the right to dignity26. The concept of personal autonomy provides individuals with the freedom to determine the course of their life. With this freedom, individuals can do whatever they wish to with their life. Moreover, personal autonomy and the right to self determination allow individuals to develop their own concept about life. However, individuals are not provided with total autonomy27. This is because such total autonomy may pose a threat of harm to other individuals. Therefore, there should be restrictions on personal autonomy. In the absence of such restrictions, individuals may harm others or violate the law. In addition to this, individuals are interdependent upon each other, and their actions depend on the actions of others28. In the Netherlands, such assisted suicides are not prohibited. Proponents of euthanasia argue that subjecting the person who had performed euthanasia or who had assisted in the suicide of some other person, to criminal prosecution would deprive the person seeking death of his lawful autonomy29. According to the advocates of euthanasia, the state should not impose any restrictions on the act of euthanasia. Such hindrances would obstruct the fundamental freedom of the individual seeking to end his life. The decision in Airedale NHS Trust v Bland had been widely criticised. Bioethicists contended that this decision had breached the Western moral precept of sanctity of human life. The Law Lords had decided against the traditional concept of sanctity of human life, which does not allow intentional killing. This applies, even to patients with terminal illnesses and to acts of euthanasia, irrespective of whether they are intentional or by omission30. As such, the doctor who performs the act that results in the shortening of the patient’s life violates this traditional concept of sanctity of life. Depriving a patient of nutrition and hydration shortens the life span of the patient. It is equivalent to administering a lethal dose of poison to the patient. Withdrawing such life sustaining treatment discloses malafide intent; instead of doing so, the doctors should provide the patients with palliative care. This would reduce the patient’s suffering to a major extent31. Dianne Pretty had unsuccessfully explored all the available avenues in the UK, in order to undergo assisted suicide. Subsequently, she approached the European Court of Human Rights seeking their permission to undergo assisted suicide. In order to obtain their assent, she contended that the 1961 Suicide Act of the UK constituted a deliberate violation of Articles 2, 3, 8, 9, and 14 of the ECHR32. She relied on Article 8 ECHR, which provides respect for private life; and precludes public authorities from intervening in the private sphere of individuals and imposing restrictions on the exercise of their right to die. However, the ECtHR held that Article 8 and the restriction inherent in it were not inviolable. This was on the basis of the requirement of Article 8 that a government was justified in interfering with personal freedom under different circumstances33. A few of these are in the interests of public safety, and to ensure the health or morals of individuals and society. At the moment, higher brain death has not been accepted as the legal definition of death. Sanctity of life arguments have been restricted to the whether there is a duty to keep a terminally ill or permanently insensate person alive. The courts allow withdrawal of medical intervention for patients whose brain stops functioning. This is nothing other than a departure from the principle of sanctity of life34. It is unethical and indicates a dismal lack of concern for patients by the courts. Apparently, their only concern is to determine whether the doctors are under a duty to keep the patient alive. As such, the courts make no attempt to prolong the life of individuals, if there is no duty on the part of the doctors35. The Common law provides individuals with a right to self determination. In the well developed common law jurisdictions, courts affirm this right to self – determination to adult patients of sound mind. The courts allow such privileged adult patients to consent to or reject medical intervention even if consequence of such decision is death. In the British Commonwealth and the US, courts allow competent adult patients to exercise their right to undergo a particular treatment36. This right is allowed to prevail, even if its consequences were to prove fatal for the patient. In order to obtain the medical treatment, adult patients should be competent and should have made an advance medical directive. In the absence of such measures, the courts cannot give consent to medical treatment for such patients37. Absence of advance medical directives empowers physicians to provide treatment, in accordance with their professional expertise and proclivities. Such, medical treatment could even entail the complete withholding of treatment, if the attending physicians consider it to be in the best interests of the patient. In the case of minor patients, it is upto the courts to determine what is in their best interests38. The courts take several factors into consideration, whilst determining what would be most beneficial to patients. In Re A (Male Sterilisation), the best interests of the patient were described as medical, emotional and other welfare matters39. Determination of best interests, involves a complex assessment of the relative importance of the sanctity of life, the right to self-determination and the right to a dignified death. The test of best interests depends on the facts of the case40. The Mental Capacity Act of 2005 systematised the common law test of best interests for insensate patients. The UK incorporated the provisions of the ECHR into its domestic legislation, by means of the Human Rights Act 1988. Consequently, the common law principles established by the ruling in the Bland case had to be subjected to fresh scrutiny41. In National Health Service Trust AVM and NHS Trust B v H, the High Court of Justice followed the reasoning of the House of Lords in Bland. As a result, the High Court of Justice declared that the ECHR did not compel the UK to continue life sustaining care in all situations. Nevertheless, the Court of Appeals provided a clarification that courts were precluded from recommending treatment that would have otherwise been deemed to be illegal42. The refusal decisions imply that ethical considerations, other than autonomy may be envisaged by English law. There are four principles of bioethics, namely autonomy, beneficence, non-maleficence, and justice. The courts decide the welfare of minors either under the Children Act or in the context of wardship. These two contexts are equivalent to the principles of beneficence and non-maleficence43. Consent entails recognition of an experienced view; whereas, refusal denies such a view, from a position of restricted understanding. This argument invokes the principle of beneficence. However, the concept of beneficent seems to merge into that of paternalistic intervention; which constitutes the converse of self determination44. Many non medical persons operate with limited understanding of the medical field. This situation poses the question whether medical professionals should be permitted to determine what constitutes the best interests of their patients. Moreover, the law is inconsistent, in the context of self determination. On occasion, beneficence and non-maleficence have been perceived to have greater importance than autonomy. This absence of uniformity in decisions relating to self determination, discloses the necessity to evaluate the extant legal approaches; in order to establish the most appropriate course of action from the point of view of ethicality. The courts of the United Kingdom, consider autonomy, self determination, beneficence, non – malefecience and paternalistic intervention in deciding cases relating to physician assisted suicide. They are unwilling to take decisions favouring active euthanasia, as in the Dianne Pretty case; whereas they permitted passive euthanasia, as in the case of Bland. Conclusion In the United Kingdom, the patient’s dignity and the independence of the physician are safeguarded by empowering physicians to decide upon, whether to continue or discontinue treatment that prolongs life. Economic distributive justice constitutes an important facet of decisions made, in order to prolong life in the United Kingdom. In this country, one of the resource management strategies is to withdraw life prolonging treatment. The only justification for discontinuing medical treatment on economic grounds would be a situation, wherein a person with better prospects of recovery would be deprived of treatment, if economic considerations were to be ignored. If the patient is incompetent to take a decision, the doctor is under a professional obligation to deal with the case in the best possible interests of the patient. Therefore, doctors who act in the best interests of patients, who are incompetent to take a decision with regard to medical treatment, would not be liable for prosecution. As such, doctors are under a common law duty to act in the best interests of adult patients who are not competent to accord their consent. The courts would justify the concept of best interests upon the recommendations of a responsible medical body. In some instances, the courts deliver judgements that oppose the wishes of the patient. These decisions take into account the best interests of the patient. As such, active euthanasia has been deemed to be illegal in the United Kingdom; whereas, passive euthanasia has gained considerable importance, subsequent to the decision in Bland. Lord Browne – Wilkinson, opined in this case that artificial sustenance had been deliberately discontinued; which was tantamount to causing intentional death of the patient. Appendices Bibliography ‘Case Commentary: Time To Remove The ‘Flank Jacket’?-[2000] CFLQ 83’, 1 March 2000, Child and Family Law Quarterly Danuta Mendelson & Timothy Stoltzfus Jost, 2003, ‘A Comparative Study of the Law of Palliative Care and End-of-Life Treatment’, Medicine & Ethics Journal of Law, vol. 31, p 130 ‘Diane Pretty’s Right – to – Die case: High Court clears way for Judicial Review’, [31 August 2001] available at http://www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2001/diane-pretty-s-right-to-die-case.shtml (last visited 28 March 2009) Dr Ubaldus de Vries, 2004, ‘A Dutch Perspective: The Limits of Lawful Euthanasia’, Annals of Health Law, Loyola University, Chicago, vol. 13, p 365 Feldhammer, J.D., 2006, ‘Medical Torture: End of Life Decision-Making in the United Kingdom and United States’, Cardozo Journal of International and Comparative Law, vol. 14(2), pp 533-539 Janna Satz Nugent, 2003, ‘Walking into the sea of legal fiction: An examination of the European court of Human Rights, Pretty v United Kingdom and the Universal right to die’, Journal of Transnational Law & Policy, Florida State University, vol. 13, p183 John Keown, 1998, ‘The Legal Revolution: from “Sanctity of Life” to “Quality of Life” and “Autonomy”, Journal of Contemporary Health Law & Policy, The Catholic University of America, vol. 14, p 253 Ozimic, Anthony and John Fleming, ‘What is Euthanasia by neglect and why is it wrong?’ available at http://www.spuc.org.uk/ethics/euthanasia/mib/ethical-reflection (last visited 28 March 28, 2009) R.S. Magnusson, 1997, ‘The Sanctity of Life and the Right to Die: Social and Jurisprudential Aspects of the Euthanasia Debate in Australia and the United States’, Pacific Rim Law & Political Journal, vol 6, p1 ‘Results of first ever UK-wide study into Euthanasia and end – of – life decisions’ (2006) available at http://www.brunel.ac.uk/news/pressoffice/pressreleases/2006/cdata/january/euthanasia (last visited 28 March 2009) ‘Special Report: The Death that Backfired on the Right-to-Die Movement’ [2002] available at http://www.internationaltaskforce.org/iua25.htm#34 (last visited 29 March 2009) Tony Bland and PVS, [June 2002] available at http://www.spucscotland.org/education/students/euthanasia/tonyblandpvs.html (last visited 28 March 2009) Table of Cases Airedale NHS Trust v Bland [1933] 1 All ER 821 F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545 at 563, [1962] 2 AC 1 at 73 Pretty v United Kingdom (European Court of Human Rights) [2002] 2 FLR 45 Re A [2000] 1FLR 549 Re B (a minor) (wardship: sterilization) [1987] 2 All ER 206 at 212, [1988] AC 199 at 202 per Lord Hailsham LC Re J [1990] 3 All ER 930 R v Cox [1992] 12 BMLR 38 Table of Statutes Human Rights Act 1998 Article 2. ECHR Article 2. ECHR Article 3. ECHR Article 8. Human Rights Act 1988 Mental Capacity Act of 2005 Suicide Act 1961 Read More