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VOLUNTARY EUTHANASIA SOCIETY OF SCOTLAND NEWSLETTER / OCT-NOV 1998 Vol 18 No 4
When words speak louder than actions
Jim Keegan
James Keegan LlB, SSC, FCIarb, DFM, NP, is a partner in the law firm Keegan Smith. He is a Solicitor Advocate and a Member of the Council of the Law Society of Scotland. He is also a Fellow of the Chartered Institute of Arbiters. He specializes in Litigation work. He is a Solicitor in the Supreme Courts and has a degree in Law, Economics and English Literature. He also holds a post-graduate Diploma in Forensic Medicine.
A key case concerned the therapeutic management of an hydrocephalic child.1 The question for the court concerned the balance which required to be made between short-term, therapeutic gain, and needless prolongation of life. The facts of the case are for the present purposes irrelevant. The Judge at first instance decided that it was appropriate, that treatment which was deemed to be futile be withheld. In the course of his judgement he directed that leave be given to the hospital authority to “treat the ward to die”.2
The court of appeal agreed with his decision but not with his use of words. The judge then amended his order to read, “to treat the ward in such a way that she may end her life peacefully”. The court of appeal found this to be perfectly satisfactory. The object of the order was that the child be permitted to die. The effect of the order was that the child was not given treatment as a result of which she died. This insistence on an acceptable form of words to deal with a given event is not unusual. After all the courts talk of such actions and omissions when in fact they are really just talking about actions.
On a football field if my opponent is running past me and he suddenly tumbles to the ground he may cry “Foul, you tripped me!” I may say, “No I didn’t trip you I just didn’t take my foot away. If I had placed my foot in your way I would have tripped you, but it was already there and I just omitted to take it away; therefore I did not trip you!” My opponent may find this to be a strange type of logic.
Consider the approach which is taken by the courts in the following circumstances...
(a) A young man aged ten becomes quadriplegic following a swimming accident. When he is 31 he is faced with the imminent death of his father. He decides that he wishes to be released from his paralysis. He is on a respirator. Although he can perform many tasks, such as reading, watching TV, operating a computer, he is in despair over the prospect of losing the companionship of his devoted father. He seeks removal from the respirator. The court finds that he is a competent adult fully able to decide and it allows the procedure of removal to take place. The result is sudden death.
(b) A man who is involved in a road traffic accident needs a blood transfusion. He will die if he doesn’t receive one. Because of his religious beliefs he refuses treatment. The doctors do not give him treatment. He dies as a result.
(c) An old lady is in dreadful, terrible pain. Her doctor decides when she suffers from a cardiac arrest she shouldn’t be resuscitated. However she hangs on in relentless pain. Her doctor tries everything to relieve the pain to no avail. She begs him to end her life. Eventually he gives her an injection of potassium chloride which stops her heart: she dies. He is charged with murder.
In each of these cases there is a relationship between the physician and the patient. In the first case the physician is absolved of liability because the court permits him, at the request of the patient, to terminate life sustaining treatment. In the second case the doctor has been told by the patient not to treat him. The doctor stands by the patient’s wishes. The patient is competent to make that decision and the doctor must respect the decision. In the third case an apparently competent request to end life is made, the doctor complies, but he is held to be criminally liable because of his compliance.
Applying the approach taken in the Bland case3 the relevant test to determine the doctor’s duty is that of “best interests”. The test is, “Is it in the best interests of the patient to continue to receive treatment?” not, “Is it in the best interests of the patient to be allowed to die?” In the course of their judgements, some Judges in the case said that best interests meant whether benefit could be derived from continued treatment whereas other Judges said that best interests meant weighing the benefits of treatment against the burdens of treatment and non-treatment. How does this approach sit with the examples given?
In the first case treatment was being given. If we weigh the consequences of treatment against non treatment clearly the patient dies but that is his wish. The best interests test is irrelevant. What is relevant is his right to refuse more treatment.
In the second case, applying the same test, it would be better to have a blood transfusion; however a competent adult is entitled to refuse treatment even in the face of death. The best interests test is again irrelevant. What is relevant is his right to refuse treatment.
In the third case what is in the patient’s best interests? Apparently despite her pain she is competent to choose. She hates her pain. Her life is a burden to her. She asks to die. Her doctor complies with her wishes but in doing so her doctor faces criminal liability. Wherein truly lies the difference?
In the first two cases the court would say it’s okay to leave out treatment. Some would say this is an omission. However, in the third case the courts say that it is not okay to use a poisonous agent to induce death. That is an unlawful act. In each of the three examples there is a clear intention behind the requests made. Although in the second example the patient in question may not want to die he intends that he should not be treated because it is contrary to his religious beliefs and he prefers to die rather than to contravene the beliefs of his faith. In each of the three examples everyone comprehends the result and whether he likes it or not the doctor who is involved is complicit in the result. The only real difference appears to lie in the words that describe the causal factors.
If I leave out treatment, or discontinue it, apparently I omit it. If I perform an overt act directed to the same result as my inaction I act and then incur criminal sanction.
Surely the distinction is wrong. I can act by commission or omission. The purpose behind what I do is more relevant.
Sometimes the difference between an action and an omission is seen in terms of harm against benefit so that although a doctor must not harm his patient he is not obliged to benefit the patient. It must be asked whether this approach sits well with the approach taken by the court in the case of Bland (supra).
So what about if the consultant looking after a terminally ill patient in great pain endorses on his notes a direction to the effect that the patient is not to be resuscitated? If this patient has a myocardial infarction and the consultant’s direction is followed, he dies. This is seen as an omission which is apparently unimpeachable. However, if the myocardial infarction occurs during the night and the patient is attended to by night staff who have not read the direction and resuscitate him where does that leave the consultant? Should he just accept the position or should he disconnect the respirator and end life? Resuscitation has certainly not benefited the patient. Indeed it may have harmed him since it has prolonged the dying process. However, given the law as it stands the consultant has a grim dilemma to face, since by disconnecting the respirator he may be deemed to have killed the patient as opposed to simply letting the patient die.
The fact of the matter is that there is no moral distinction in such circumstances between killing and letting die. There is no real moral reason to focus on the manner by which the outcome is achieved. What are most relevant to the moral assessment of an event are the beliefs and intentions of the agent who brings it about.
The ethics of caring for the terminally ill are usually subject to two extremes of views, (with a number of others in between). One extreme view is the absolutist approach to the sanctity of life that we should avail ourselves of all available life sustaining procedures. The other extreme is that the process of dying should be shortened and death brought about quickly by the use of a lethal agent. One might think that these two extremes could never find common ground, but they do. They agree that the ethics of omitting life-sustaining treatment is indistinguishable from direct killing. “Actually the difference between euthanasia and letting the patient die by omitting life sustaining treatment is just a moral quibble.”4
References
(1) Re. C (a minor) (Wardship: Medical Treatment [1989] 2 ALL ER 782 CA
(2) The child had been made a ward of court
(3) Airedale N.H.S Trust v Bland [1993] 1ALL ER 821
(4) D.C.S Cameron “The Truth about Cancer” (Inglewood Cliffs N.J - Prentice-Hall 1956) p.116
Trial of wills - to sue or not to sue?
Colin Gavaghan looks at the legal and practical issues concerning legal action over living wills
How can I make sure that my living will isn’t ignored?
Readers may not be surprised to learn that this is one of the most common questions which VESS staff are asked. Although the question can be simply phrased, the answer is complex and multi-faceted, with more factors falling to be considered than can be addressed in one short article. But there is one suggested answer which crops up periodically, and which is of obvious interest to many readers. At the most recent VESS AGM*, the view was expressed by one or two members that advance directives will continue to be ignored until such time as doctors realise that they will be sued for ignoring them. Thus, the following question arose: would it be possible to sue a doctor who ignored an advance treatment refusal?
Would it be possible to sue a doctor who ignored an advance treatment refusal?
The frequency with which advance directives are ignored remains troubling. But would it actually be practicable to sue health professionals in this way? To date, no action of this sort has been decided before the UK courts (although US and Canadian cases have been decided). Indeed, Alison Britton of Glasgow University’s Institute of Law & Ethics in Medicine has spoken of there being “a legal vacuum” in this area. Until Parliament or the House of Lords act to clarify the situation, she points out, we can only “draw on what has gone before” to infer and predict how future cases will be decided.
It seems, though, that suing a medical professional who ignores your advance refusal of treatment may be a possibility, although only in certain circumstances. This article is intended to give some insight into the basis for such an action, and into the problems which raising it may present. As will become apparent, these may extend beyond the sphere of law, negatively impacting upon the very relationship - that between doctor and patient - which we would hope could be strengthened and improved.
Possible actions
In theory, a doctor who treats you in contravention of your known wishes, even if those wishes were stated in advance, would find himself in trouble. Treatment without consent could theoretically give rise to a criminal prosecution for assault (battery in England), although it seems unlikely that criminal charges will be brought provided the doctor has acted in good faith.1
More plausibly, such unwanted treatment could give rise to a civil action. In Scots law, assault is not only a crime, but also a delict2 (known in English law as a tort). That is, it is a wrongful act for which you may be entitled to compensation from the party who acted wrongly. The possibility of suing a doctor for assault will be considered in more detail below.
The other possibility would be to bring a civil claim in negligence against the medical staff. Nowadays, negligence claims are considerably more common than civil assault actions, and in most circumstances a claim against the medical staff for negligence would be the most appropriate way to proceed. However, for reasons which will become clear, it seems that a claim based on assault may be more appropriate, as well as having a better chance of success.
Negligence
It is quite possible that a doctor who failed to read, or follow the terms of, a valid living will of which he was aware and to which he had access would be held to have acted negligently. The test which the courts would apply would be whether he had acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This is known in law as the Bolam test - after the case in which the test was formulated - and it is notoriously difficult for pursuers to prove that a doctor fell below this standard.
But perhaps the main problem with basing the claim in negligence lies with the fact that, for such an action to succeed, you would need to demonstrate more than the mere fact of negligence on the part of the doctor. Harm resulting from the unauthorised treatment would also have to be demonstrated before any damages would be awarded. And in a situation where the action complained of actually ‘saved’ your life, a court might be unwilling to accept that you had been harmed thereby. Certainly, this is the view taken by some medical law experts2, and was the position taken in at least one of the U.S. cases, where the court referred to the “impossibility of a jury placing a price on the benefit of life.”3 Given the reluctance of the UK courts to consider somewhat analogous questions in the context of cases involving handicapped infants4, it is more than possible that they would be unwilling to pay compensation for having one’s life prolonged. One court5 said that the impossibility of deciding how much to award for saving a life meant the case couldn’t succeed.6
Assault or battery
Actions for assault or battery are fairly rare in the sphere of medical law, but it remains an option, at least “where there has been no consent at all to the physical contact in question.”7An action for battery was the basis upon which perhaps the most famous case of this nature was contested. The Canadian case of Malette v. Schulman8 arose after an unconscious Jehovah’s Witness was given a blood transfusion, despite carrying a ‘NO BLOOD TRANSFUSION!’ card. It was held that administering a transfusion in such circumstances constituted a battery, and an award of $20,000 was made.
Although a Canadian decision is of course not binding on Scots or English courts, there is reason to believe that UK courts would decide a similar case in the same way. In the leading case involving a woman refusing a blood transfusion for a Caesarian birth9, Lord Justice Staughton expressed the view that a damages claim would succeed if the same circumstances arose in the England - although he felt that the amount awarded would probably be somewhat less.
The principal advantage of suing on the basis of assault rather than negligence is quite simply that, to succeed in the latter, harm must be proved, while assault requires only that the doctor be shown to have acted unlawfully. The result is that damages can be claimed not only for any actual harm resulting from the unauthorised treatment - which may be difficult to show when your life has been ‘saved’ - but for ‘contumelia’ - the “insult suffered as a result of the non-consensual invasion of bodily integrity.”10 In short, all you would have to show was that the doctor subjected you to treatment which you had previously refused; harm would be inferred from that very fact.
The problems
So medical practitioners who don’t follow the instructions in your living will could find themselves facing a rather substantial lawsuit. Why on earth would any doctor take such a risk? Well, for one thing, it seems likely that a large number of doctors are unaware of the current legal status of anticipatory treatment decisions. It stands to reason that if they don’t believe themselves to be bound by such prior statements, then it won’t occur that they might be sued for ignoring them. Part of the solution, then, would be to heighten awareness of the legal position, and indeed the view of the BMA, within the medical profession; the recent proposals regarding legislation in the Lord Chancellor’s consultation paper “Who Decides?” might help in this respect11.
Before our members descend en masse on their local GP, brandishing threats of career-wrecking litigation, a few cautionary words should be spoken about bringing a civil claim. In the first place, there is the expense. Criminal prosecutions are brought by the Lord Advocate (in Scotland), but since you would be bringing a civil action on your own behalf, you would probably have to pay your own legal fees. If successful, the other party might be ordered to pay your costs; but this is at the discretion of the court and, even if you win your case, it may be years before you see a penny of compensation!
Bear in mind, also, that bringing an action of the type envisioned here would amount to a test case. As Alison Britton points out, we can speculate and draw inferences from other cases, but ultimately there is no guarantee that an attempt to sue a doctor in such circumstances would actually succeed. You could invest years of your life and thousands of pounds and be left with absolutely nothing to show for it. Finally, remember that Lord Justice Staughton in Re T stressed that, even if successful, a party seeking compensation in such circumstances would receive substantially less than the $20,000 paid out in the Canadian case.
“If the factual situation falls outside the scope of the refusal the refusal ceases to be effective”
For many ordinary men and women, recourse to the civil courts may just be too expensive an option to consider seriously. Would it really be worth the risk in such an uncertain area?
Applicable in the circumstances?
Living wills can only be binding when they are applicable to the circumstances that arise. If a doctor does not consider that your living will was intended to apply to the precise situation in which you find yourself, or if he considers that you did not fully understand what your refusal would involve, he would not be obliged to follow your advance directive. As Lord Donaldson said in the Caesarian case12 mentioned earlier: “If the factual situation falls outside the scope of the refusal . . . the refusal ceases to be effective.”
Some statements - like a Jehovah’s Witness refusing a blood transfusion - might seem straightforward, but most living wills contain statements which are considerably less specific. Concerns about ‘becoming senile’ or ‘loss of independence’ might help to give a general sense of someone’s hopes and fears, but translating them into legally binding instructions is almost impossible. In such cases, we have little option but to hope that those making medical decisions on our behalf will respect the spirit of our living wills: they certainly won’t be bound by the letter.
The problem of emergency medical treatment
The other substantial problem derives from the fact that, however careful we are to ensure that our own GP is aware of the wishes expressed in our living will, he or she is unlikely to be responsible for our immediate care in an emergency. In the event of stroke, heart failure or some other acute condition, we would expect to be rushed to an Accident & Emergency Unit, where we will be treated by medical staff who are likely to be completely unknown to us. We will never have had the opportunity to explain our wishes about medical treatment to them in advance. If faced with an immediate matter of life or death, they will not take the time to track down GPs and next of kin to enquire about living wills; they will proceed to treat us, without our express consent, in what they consider to be our best interests.
They are acting quite legally in doing so. And few of us would object to a presumption, where no alternative instructions are known, in favour of saving life. If a bus were to hit me tomorrow, I certainly wouldn’t want life-saving treatment withheld until my GP, partner and relatives had been contacted - or until the terms of a Values History had been pored over in detail! Realistically, in cases of acute trauma, only the most clearly unambiguous directive - like a ‘No blood transfusion, even if my life depends on it’ card - would stand any chance of being legally binding. And even then, the treatment refusal would have to be prominently displayed; few courts would penalise a casualty doctor who restarted your heart before looking through your wallet for a Medical Alert Card.
What, then, can we say about the possibility of suing a doctor who ignores a previously expressed treatment refusal? Well, the best we can probably say is that it might, in theory, be possible. Until someone has tried it, however, there is no guarantee that such an action would succeed. From the perspective of a law student, it would be fascinating to follow the progress of such a test case. But who would want to incur the expense of a civil action just on the off chance?
Concern must quite properly exist about the effect on the doctor-patient relationship. Over the years, VESS has sought to promote better communication and cooperation between doctors and patients; our research strongly suggests that the best chance of a living will actually achieving its desired objective depends upon such a relationship. What would happen to that relationship if the doctor felt he was operating under the ubiquitous threat of a potentially crippling lawsuit? How could trust and openness thrive in such an environment? With regard to emergency room staff, as we have seen, it is highly unlikely that any such case would succeed. With regard to our GPs, however, the Damoclean threat of legal action - even a threat that, in all but the rarest of cases, is unlikely have much basis in reality - may well do more harm than good.
References
(1) Kennedy I, Grubb A, Medical Law: Text and Materials, Butterworths, 1994:90
(2) Ibid p.1331
(3) Thomson J, Delictual Liability, Butterworths, Edinburgh, 1994.
(4) Anderson v. St.Francis-St.George Hospital 671 N.E. 2d 225 (Ohio, 1996)
(5) McKay v. Essex Area Health Authority [1982] 2 WLR 890, CA
(6) Ibid.
(7) Mason JK, McCall-Smith RA, Law and Medical Ethics 4th ed, Butterworths, 1994:235
(8) Malette v. Schulman [1991] 2 Med LR 162 (Ont CA)
(9) Re T (adult: refusal of medical treatment) (C.A.) [1992] 3 W.L.R. 782
(10) Thomson J, supra p.12
(11) See VESS Newsletter, January 1998 for an overview of the consultation paper
(12) Re T, supra.
Colin Gavaghan is an honours graduate in Medical Law from Glasgow University and continued specialising in that area for his doctorate. He has been instrumental in furthering legal research for VESS on end-of-life issues.
Comments from other sources
Rev Dr Ken Boyd of the Institute of Medical Ethics shared many of our worries about the likelihood of any such case succeeding. “The success of any litigation would depend on the degree of care shown by the doctor in assessing the situation,” he pointed out, “and in particular on how deliberate the ignoring was.” He stressed that the Jehovah’s Witness blood refusal situation which prompted Malette v. Schulman is untypical of what doctors face in practice, as it relates to the refusal of a particular treatment. Most living wills contain more vague ideas, like ‘no extraordinary measures’ to prolong life, and these are by their very nature open to interpretation. He emphasised that doctors must be allowed some measure of discretion in interpreting such clauses.
The success of any litigation would depend on the degree of care shown by the doctor in assessing the situation
Boyd also made the interesting observation that some doctors nowadays may actually welcome a living will, especially when further treatment that is unlikely to benefit the patient is being urged by members of the patient’s family.
John Oliver, of the VES (London), believes that such a case would have every chance of succeeding, provided the living will was clearly established and appropriate in the circumstances.
“Who would be in a position to bring such an action, since the patient would often be permanently incapacitated or too ill?”
He anticipated that any doctor seeking to defend such an action would seek to show that the directive did not apply to the precise circumstances in question. His Society would welcome the prospect of such a case being brought, although he was quick to stress the expense of bringing such an action. He also wondered precisely who would be in a position to bring such an action, since the patient would often be permanently incapacitated or too ill!
A spokesman for the Patients Association stressed that, in the absence of legislation to make living wills legally binding on doctors, or until someone brings a case before the courts, the position is extremely difficult to assess. The Association would, however, welcome the prospect of someone bringing such a case, as it would establish the present status of advance directives more forcefully.
A new group of 65 medical doctors have recently formed Doctors for Assisted Dying. A spokesperson said they would “favour litigation”.
A very special passing
Usually when we hear Flower of Scotland it marks a moment of celebration, a rousing chorus in the pub, or the pipers on Princes Street, but today I heard it in a very different context.
The afternoon started quietly enough. I was trying to find a building that was part of Napier University and followed the directions I’d been given along Craiglockhart Avenue to Colinton Road. Eventually, at the end of a narrow, twisty road, I made a dash through the rain into the small chapel and found a place at the side (all the rows being full to overflowing) as the service started for a man I had barely known.
Jock was a very private man. I had known him for over a year but meeting him only at wine tastings, dinners and the occasional Wednesday evening when a group of friends get together at Hendersons Salad Bar. He was one of those rare individuals who could convey as much warmth by the words left unspoken as by what he said. He always kept his work (as a notable academic and teacher of business studies) quite separate. He had been poorly for a while, but had undergone some surgery and was starting to improve.
Three months ago, after a deepening romance, he married the woman of his dreams. Two days later Jock’s wife was given a different prognosis - Jock, 36 years old, was terminally ill with a brain tumour.
The Episcopalean Minister at the University Chapel seemed particularly sensitive to the fact that Jock had both friends who were deeply religious as well as those who weren’t. He reminded me of another minister of my acquaintance who once said “I put people before bibles any day!” The hymns weren’t very easy to follow - but the words were unusual and embodied an almost mystical depth that was accessible to most folk of any religious persuausion or none. But as the coffin was carried out of the chapel, the organ gently intoned the Flower of Scotland and it seemed to epitomise returning to the beloved “hill and glen”, drawing the many varied emotions of the congregation together in a sacramental farewell.
Thinking on the appreciations to his memory, I recalled a business lecture I had once attended. As an exercise, the speaker had asked us to: “Imagine your own obituary, the things you would like people to be able to say quite honestly about you, how you would like to be described. Start being that person now!” People from all walks of Jock’s life described him, even while he was alive, as someone who never had an unkind word to say about anyone, and no-one had ever had an unkind word to say about him - quite an achievement in his lifetime and certainly a living example of the exhortation of that lecture.
The burial was on Corstorphone Hill - I never knew there was a burial ground there but there is, incredibly secluded, and as we opened the car doors the fresh balminess of the rain-drenched leaves added to the splendour and natural beauty of a very solemn occasion. As the coffin was lowered into the grave, Jock’s wife stood over statue-like. Her happiness had been ripped from her in a cruelly timeless fashion and after such a very short period. As pall bearers withdrew, she threw a single thistle into the grave as friends gathered round her.
Dying naturally
The New Natural Death handbook, edited by Nicholas Albery, Gil Elliot and Joseph Elliot, The Natural Death Centre, 1997, £11.65 320pp Pbk ISBN 0-7126-7111-0
This handbook caters especially for those who see death as a personal, family affair, and who would like to confront death and prepare for it at home, amongst those closest to them. For all of us, death is inevitable, and the authors of this book help you to get ready for it, along with the funeral.
Increasingly, people would like to prepare themselves for death and help those around them with the funeral. The New Natural Death Handbook begins with a section on why the natural death movement came about, and then moves on to the process of preparing for dying. This chapter covers issues such as anxiety, death rehearsals, visualising death, and wills. The section on wills also includes living wills, explaining the legal position, as well as guides to producing one. A values statement and natural death instructions (to make dying wishes known to those around you) are also included .
The following chapter is about practical care at home, and is mainly aimed at those who care for a dying person. This covers issues such as where to find care in the community and a look at the carer’s needs. Practical advice for caring for the ‘patient’ is also offered, such as bathing, changing clothes, bowel problems, and more creative treatment such as music and massage.
Details are given for inexpensive, green family-organised funerals as well as more professional services. The advantages of a family funeral are seen as less expense, the option of a ‘greener’ funeral, a more personal funeral, and the fact that participation can help people to come to terms with their loss. Guidelines for a family funeral include advice about where to buy a coffin (or how to make one), how to complete all the legal documentation, and various legal requirements regarding funerals.
The section on coffins and professional services is mainly reference material about where the better and cheaper services can be found. It also provides a guide to the differing types of coffins and their advantages. The chapter that follows gives similar information about funeral services.
Following on from a ‘green’ theme, the handbook outlines some of the advantages of woodland burials, where a tree is planted by the graveside instead of a employing a headstone. This is a good alternative to cemetery burials, where capacity is quickly filled.
The final chapters look at ways to ‘improve’ the grieving process and the politics of dying, including issues such as euthanasia, palliative care and suicide.
The handbook is a very practical guide for those considering their death and funeral seriously, for those who wish to involve their friends and families and for those seeking help towards preparing for these. There is a list of useful references at the end.
Book review by Eleonora Harris
Paying all the way
Rosie Ogg
This article has been written in response to letters from our members bringing to our attention the plight of some elderly people having to sell their homes in order to pay for nursing home costs.
With fees for nursing homes ranging from £300 to £600 per week, it is now often the case that local authorities insist on the sale of an individual’s property in order to pay for care. Entitlement to have nursing home fees met by a local authority arises only when a person’s total assets, including any property, falls below £16,000. Thus a person owning property worth more than this may be forced to sell it in order to pay their nursing home costs until such a time as their assets fall to £16,000 or below.
One suggestion that has been put to us to avoid this situation is that an elderly individual could assign their property to a ‘trustee’ such as their children or in-laws. This, it is suggested, would prevent the local authority from having any right to the property whilst allowing the individual the right to live in it for as long as they wanted.
The position now, however, is that in situations where property has been assigned to a trustee such as a son or daughter, the local authority can still insist on the sale of the property to cover nursing home costs. If the property has already been sold by the trustee, they can insist that the proceeds from the sale be used to pay for them.
Until recently, a local authority only had the right to do this if the property had been assigned within the three years prior to the individual entering into the home. Now, each individual local authority has discretion in deciding how far back it wishes to go to recover costs. In theory, this means that an elderly person who assigns their home to, for example, their daughter, but continues to live there for ten years afterwards, may still be forced after those ten years to pay for any necessary nursing home costs. The daughter would then be forced to sell the property or, if it had already been sold, would be expected to use the proceeds of the sale to pay for the cost of the home.
By enforcing their rights in this matter, local authorities are able to keep their contributions to nursing home costs to a minimum, and have ensured that there are no longer any advantages in the elderly assigning their property to a trustee in this context.
Rosie Ogg, BA (Hons) Law, has recently worked in the commercial property department of an Edinburgh law firm.
Approaching Death’s Altar
The sun does not rise upon my soul.
I wear no halo; no aureole.
Death is a slow, unending process.
In the wings it waits for me my guess.
All hope has vanished without a trace.
My poor life, existence did abase.
The strictures of life do suffocate.
I am forced my life to abrogate.
Time must be spent in isolation.
To this Race there's no adaptation.
This soul it spurned and this soul recoiled.
Then existence for this soul was spoiled.
For each ounce given, a pound taken.
Life and the Devil are so akin.
The pointlessness of existence sears.
Life’s interactions fulfilled my fears.
This existence cannot continue.
My soul must seek out a new venue.
All my life I have faced Death's altar.
Fate's singular path I can't alter.
I have grown old and am so weary.
Vision through these sad eyes is bleary.
I hope to go to a better place.
Somewhere that will not my soul debase.
I dream of a place that has justice.
A place that's not ruled by avarice.
People will care about each other.
And will not intelligence smother.
I envision all faces beaming.
And each creature there will have meaning.
It shan't be a place to do penance.
Unlike here, life is not a sentence.
It will not abandon the infirm.
And self worth of each it will confirm.
It shall to each give unbridled love.
It may or may not be found above.
I hope that my vision does ring true.
And I pray that I live life anew.
I shall leave here without a regret.
Life here kills hearts like a bayonet.
This world I am in is so evil.
My soul was shattered on it's anvil.
Death's emissary does now beacon.
I must take my leave now I reckon.
Yesterday’s
killers are
today’s trivialities
Eleonora Harris
Eleonora Harris graduated in Geography with Honours from University College London , where she wrote a dissertation on the geography of mortality in Edinburgh, linking certain causes of death to particular social indicators. She has been working with the British Nursing Association before joining VESS as Trainee Research Assistant.
As a recent graduate from university, I have come to VESS with little personal experience of euthanasia, and with little need for thinking about such issues as I am still relatively young (22 years). I agree with the principle behind the movement, and understand some of the complexity of the issues involved. But one issue strikes me again and again - euthanasia and medicine are inextricably linked. The problem I have is with the peculiar situation we in the West find ourselves regarding medical ethics.
In an ideal world, no-one would get ill, and everyone would die a peaceful death. But this is obviously not true, and nor has it ever been. Nature will always find some way to inflict premature death on a significant number of each species. As we have no predators to speak of, we find ourselves struck with illnesses instead. A few hundred years ago, these would be of an acute kind, perhaps dying of influenza or small pox, within a short period of time. Nowadays, however, with the advancement of medicine, disease has become more chronic in nature. Death can be long and drawn out. We no longer expect to die from a gash in the leg, or a common cold. We expect, in our privileged position, to live until we are old. With this, the nature of our cause of death changes. Yesterday’s killers are today’s trivialities: an appendix out here, a heart transplant there (well not quite, but you get the picture).
The point I’m trying to make is that prolonging life until the (sometimes) bitter end is seen as a rite of passage. If your sight deteriorates, get contact lenses; if you have tonsillitis, get your tonsils out; if your hand falls off, get a new one (it would now seem, looking at the latest developments in transplants).
There is nothing wrong with all this. It is immensely reassuring that our geographical position in the world enables us to have relatively few health worries (although upsetting to think of those less fortunate). Indeed, it has become morally wrong if you do not assist a person in need - almost unthinkable.
With this in mind, I come to the whole crux of our medical predicament: if it can be reassuring to think that help is out there if we become ill, then why is it so difficult to come to terms with helping someone to end their life in certain circumstances? Why, with all our modern technology in medicine, is it so morally challenging to think of helping someone to die peacefully?
Medical advancement, it seems to me, comes to us as a paradox. On the one hand, medicine seeks to protect us from pain and discomfort, and to prolong our lives if necessary. On the other, the very vehicle that seeks to protect us has failed at the very end of our lives. Modern medicine has placed us in a situation where it becomes almost impossible not to treat someone, in a way that will prolong their life. This has placed us in a moral dilemma when it comes to those who would like to end their lives, for whatever reason.
… prolonging life until the bitter end is seen as a rite of passage ...
Thinking of such issues seriously is, I hope, still a long way off for me. Working for VESS has encouraged me to think about hypothetical questions for the future. One overriding issue would remain in any given situation I could imagine myself. I would like to have the choice to relieve potential suffering, even if I did not intend to take the ultimate path of self-deliverance. Maybe by that time our so-called freethinking society will have progressed towards a more freethinking attitude about this and other issues. In my own hypothetical future world, I like to think that medicine will have progressed so far that today’s killers will become tomorrow’s trivialities. Medicine as we know it will be totally transformed.
All this makes the need for choice right now seem even more important. Perhaps medicine should not be used for the sole use of healing, but should also be viewed as a means of relieving suffering in the most humane way possible, including helping to end the lives of those who wish it. Maybe that way, the moral dilemmas that we are faced with now will become less confusing, and we can go forward with a renewed and more appropriate attitude towards medical ethics.
Final Acts of Love by Stephen Jamison. G.P. Putnam’s Sons 1995, £19.99 279pp £19.99 ISBN 0-87477-816-6
Have things ever got so unbearable that you have considered assisted suicide? Have you ever wondered how to ask someone to help you? Or considered who that person might be - a friend, someone very close to you, or perhaps your doctor?
Perhaps you know someone who might suffer unbearably in the future. Have you ever thought of what you would do if they asked you to help them to die? Do you know what legal and emotional risks are involved? Could you accept? Could you refuse?
Perhaps most importantly, few of us have ever set ourselves guidelines in the event of becoming involved in an assisted suicide, from whichever point of view.
One noteworthy finding of Stephen Jamison when conducting interviews for his book Final Acts of Love, is that there are many more people who become involved in an assisted suicide than is ever reported, or comes to light. In this age of medical advancement, where people are able to live far longer than ever before, the question of death becomes a problem. If people are able to receive life-prolonging treatment, then what happens when people would rather end their lives? Of course, this is a massive question that can not easily be answered. But it does raise the issue of more people inevitably seeking to end their lives. And with more people considering such an option, more people may become involved in assisting another to die.
Stephen Jamison recognises that the decision either to end your own life, or end that of another requires much thought and reflection. His book is written in a personal and compassionate way, without using emotive language that may persuade one way or another. His way of thinking, however, is very persuasive and logical, leaving you with a sense of having read something important.
Jamison provides a useful book for those considering assisted suicide, as well as for those who have been asked to help another, whether on a personal or professional basis. He uses examples from his interviews throughout which increase the understanding of the message he is trying to convey. The experiences of others have enabled him to learn much about the issues surrounding assisted suicide.
Much thought and consideration has been put into this book, using personal experience, as well as listening to and understanding the views of others. Through this, he has recognised, and conveys, the depth of decision-making involved. This is not a work saying ‘this is the best option available’; it is instead a carefully thought out book saying assisted suicide is an absolute last resort, and only if you have considered every single option, emotion and action.
Jamison provides a step-by-step guide to the decision-making process involving many elements, which anyone considering the issue of assisted suicide should certainly follow. At the end of the book, there is a question and answer section, with some of the common questions that Jamison came across surrounding assisted suicide.
A further angle that Jamison takes when considering assisted suicide is that of doctors with terminally ill patients. He also examines some of the legal and moral dilemmas faced by many doctors, and suggests thinking about personal guidelines to help with these.
The book is as informative as it is compassionate and sensitive, and makes compelling reading for anyone interested in issues surrounding assisted suicide.
Medical interventions are ‘provided almost as a reflex action, because the alternative - leaving the patient to die - seems morally unthinkable’. (Jamison, 1995, p9)
Book review by Eleonora Harris
An Intelligent Person’s Guide to Ethics by Mary Warnock. Duckworth 1998, £12.95 128pp Hdbk ISBN 0-7156-2841-0
In her introduction, Warnock is not afraid of taking great philosophers such as GE Moore and JS Mill to task. For example, Moore suggests that moral judgements are based on intuitive knowledge of what was good (in Principia Ethica). If you have to make moral judgements to choose between two actions, you would choose action that results in the greater good. What actual goodness is, is not disputed, it is just known. This is where Warnock disagrees. She does not accept that answers to all ethical questions are intuitively knowable in this way, that all intelligent people would reach the same conclusions about what is ‘good’.
Warnock contends that ‘all values are relative and invented’. Morality is derived from man’s place in the world, and humans pretend they are bound by duties and obligations because of this place, just as material objects are bound by gravity. Indeed, ‘men are made sick and dizzy by the thought of their own freedom; so they deny it’. This argument against Moore is logical, and hard to dispute - especially as examples in support of it crop up again and again throughout the book.
The first example Warnock uses in her chapter on death is of a terminally ill woman who only has a few months to live - her doctor increases her painkillers to shorten the dying process. The second example she uses is that of a young girl badly injured when a bomb explodes in a building. Warnock makes the interesting point that it becomes hard to distinguish what is ‘letting nature take it’s course’. The girl was injured in an accident, whereas as the old woman was suffering from a ‘natural’ illness. The girl is alive, yet she needs to be nourished by someone else. Withdrawing food and drink in this case would be seen as morally wrong, even though the girl would ‘naturally’ have died in the accident. Warnock makes the point that it is difficult to draw a line in medical circumstances. For example, she asks if someone would refuse surgery for appendicitis on the ethical grounds that it goes against nature. In the case of the girl, she was eventually allowed to die ‘naturally’ - that is, of starvation, and not of a perhaps more humane lethal injection (as Warnock points out).
Warnock leads us through the rest of the book in much the same way, using examples to illustrate the complexity of morality and ethics. As well as death, she also touches on birth, looking at the rights of the unborn as well as those of the pregnant woman, while recognising that circumstances differ from case to case.
Her dislike of rights-based morality is apparent, which she addresses later in her book. ‘Ethics is’, she explains, ‘largely a matter of judgement and decision, or reasoning and sentiment, of having the right feeling at the right time, and every time is different’. No matter how much you may disagree with Warnock’s opinions on ethics, it is hard not to admire the logic of her arguments.
Suicide: Right or Wrong? (2nd Edition) edited by John Donnelly. Prometheus Books 1998. £14.99 335pp Pbk ISBN 1-57392-186-6
‘Suicide’ is a book, as you would expect, on suicide. It explores the rationality, morality and psychiatry of suicides. Donnelly, in trying to answer many questions surrounding suicide, offers us a large collection of classic, as well as contemporary, philosophers.
The volume includes writers approaching the topic of suicide from differing perspectives. It is divided into three sections. The first looks at the historical background of suicide. Kant writes of duties towards the body and argues against suicide; St Thomas of Aquinas brings in a Catholic view, also arguing against suicide; while Kevorkian points towards ‘medicide’ and the virtues of a planned death.
The second part tackles the question of when to call a death ‘suicide’. This section looks at issues such as self-starvation (O’Keefe) and self-sacrifice (Tolhurst). Frey distinguishes between suicide and euthanasia, and points out that the boundary is often blurred. With these ideas in mind, Donnelly points out that ‘some suggest that Socrates was not the only historically significant suicide; Jesus may well have been one also’ (p22).
The final section looks at the morality and rationality of suicide. Donnelly chooses Szasz to talk of the ethics of suicide, and Cosculluela to talk of the ethics of suicide prevention. Brandt directly tackles the section’s topic, writing of the morality and rationality of suicide. This part also includes work by Weir on the morality of physician-assisted suicide, and Kass asks if there can philosophically be such a thing as a “right” to die.
Book reviews by Eleonora Harris
In brief...
As we go to press a woman has been charged with the attempted murder of her seriously ill husband*. Without sensible laws to regulate and assist, people are increasingly taking the law into their own hands. The Society’s work has never been more needed. Yet we still only have one full-time member of staff and the scene at the VESS Headquarters, with so many pressing jobs demanding attention both inside and outside the Office, frequently is one of a candle well-burnt at both ends. Colin Gavaghan continues to contribute much - especially in his specialist field of Medical Law, helping VESS to maintain our pre-eminence as a source of authoritative information. Yet his ambition has always been to further his subject by teaching within the walls of a University and we cannot expect to hold him indefinitely. Fortunately Eleonora Harris has joined the workforce part-time, is currently undergoing training and hopefully will become a full-time Research Assistant within six months. She is showing a good grasp both of the isuues and of the sophisticated technology utilized in the Office and we can look forward to strong teamwork with the Executive Secretary, enabling VESS to provide better services to members as well as research and campaign work.
Fundraising is being seriously tackled on a number of fronts. The membership subs haven’t moved for several years and so we trust members will support the small increase this year. But we are also looking at ways to streamline our cashflow, with the introduction soon, we hope, of Visa and direct debits. This will especially assist foreign members (a valued and growing source of income) as it eliminates costly bank-charges. Our massive Internet site is now responsible for around half our new enquiries and we are reaching a much wider audience than before. Extensive networking has also resulted in a generous purchase of advertising from Hemlock USA (page 13) and we are also seeking corporate sponsorship for the Newsletter. This month also sees the launch of our “Friends and Family” scheme to make it easier to introduce those close to you to VESS.
We strongly hope you will continue your membership and encourage others to join us. Time and again it has been VESS that delivers the goods, on living wills, on drugs, on research that makes the difference; the BMA, after our intensive submissions, has taken our lead and criticised the loopholes in the government’s bill on living wills. Departing Drugs is still the most reliable source of information on self-deliverance anywhere in the world, and there are signs that people are realising why the research we sponsored on changing the law can effectively make a difference where other bills fail. If we don’t do the work no-one else will! Please give as much as you can, whether in financial terms or by writing to the Newspapers, writing articles for the medical journals, taking part in radio- phone-ins or supporting the Executive Committee and Staff in any way that you are able. We are only a small Society, but with your help we are the way forward...!
*See Outreach, page 10.
Scottish MPs - do you know who your MP is?
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