To kill or to violate?
Published June 21, 2012 | By Charles Foster
A
highly intelligent 32 year old woman has profound anorexia. She has had
it for years. It is complicated by alcohol and opiate dependency, and
by personality disorder. Her BMI is 11.3. A healthy BMI is around 20.
Less than 17.7 is in the anorexic range. Less than 14 indicates
dangerous weight loss. Over the last 4 years her BMI has been well below
14. She describes her life as ‘pure torment’. All the things she wanted
to do have been frustrated by her illness. She feels unable to give
anything to the world, or to take anything out. For years she has had
intense treatment for her anorexia and related conditions. On about 10
occasions she has been sectioned under the Mental Health Act. One of
those periods lasted almost 4 months. Twice she has executed advance
decisions refusing life-saving or life-prolonging treatment.
There
are only two options: death or the violation of her autonomy . If she is
not admitted against her will to hospital, detained there for not less
than a year, and forcibly fed under physical or chemical restraint, she
will die. She understands this perfectly well. She doesn’t actively seek
death, but doesn’t want to be force fed. As well as the anorexic’s
usual horror of calories, the forcible medical administration of
nutrition reminds her horribly of the sexual abuse she suffered as a
child.
Her loving, articulate parents want her wishes to be respected.
The
prognosis is not good. Even with the draconian force-feeding regime, it
cannot be said that there is a probability of a good result (in the
sense of giving her a life acceptable to her). But it’s possible. The
chance cannot be said to be negligible.
That’s what landed on Peter
Jackson J’s desk in May. What should be done? The approved judgment, A
Local Authority v E and others [2012] EWHC 1639 (COP) was handed down on
15 June 2012.
First, she was not capacitous. That meant, absent a
valid and applicable advance decision, that the best interests test
principle should govern the decision-making.
It was decided that the
advance decisions were not made at a time when she had capacity, and
were accordingly not binding. ‘I consider that for an advance decision
relating to life-sustaining treatment to be valid and applicable’, said
the judge, ‘there should be clear evidence establishing on the balance
of probability that the maker had capacity at the relevant time. Where
the evidence of capacity is doubtful or equivocal it is not appropriate
to uphold the decision.’ (para 55). This is an autonomy-honouring
declaration, although some will no doubt feel, wrongly, that to apply
such a high standard may frustrate the provisions relating to advance
decisions – provisions which, of course, are designed to facilitate
autonomy.
So: where did the patient’s best interests lie? It was a close call.
When
you’re assessing best interests in such cases, you do a literal audit.
You draw up a balance sheet. On one side are the factors in favour of
life; on the other the factors in favour of death. It sounds cold and
scientific, as befits a determination which is notionally objective. But
then comes the weighting of the factors. Not every factor is equally
significant. The weighting is necessarily subjective and intuitive. But
the patient’s past expressed wishes and (even if she is not technically
capacitous) her present views, weigh very heavily. The judge noted that
the patient’s wishes and feelings ‘are not the slightest bit less real
or felt merely because she does not have decision-making
capacity…..particular respect is due to the wishes and feelings of
someone who, although lacking capacity, is as fully and articulately
engaged as [the patient].’ (para 127).
The judge concluded that
‘[t]he competing factors are…..almost exactly in equilibrium, but having
considered them as carefully as I am able, I find that the balance tips
slowly but unmistakably in the direction of life-preserving treatment.
In the end, the presumption in favour of the preservation of life is not
displaced.’ (para 140).
This presumption is hallowed by constant
reaffirmation by the courts, and is now reflected in Article 2 of the
ECHR (which provides that everyone’s life shall be protected by law). It
means, in this context, that there’s a strong legal presumption that
life is valuable. Presumptions can sometimes be very valuable.
The
principle is not absolute. It can give way to other considerations: see,
eg, Airedale NHS Trust v Bland [1993] AC 789. Also, as the judge noted,
the Mental Capacity Act 2005 might have given absolute priority to the
preservation of life, but does not. The approach taken by the Act is
reflected in the MCA Code of Practice at 5.31:
“All reasonable
steps which are in the person’s best interests should be taken to
prolong their life. There will be a limited number of cases where
treatment is futile, overly burdensome to the patient or where there is
no prospect of recovery.”
This meant, said the judge (para 122),
that ‘[the patient’s]life is precious, whatever her own view of it now
is. She is still a young woman, with the possibility of years of life
before her. The prospects of her making a reasonable recovery are highly
uncertain, but it cannot be said that treatment efforts are doomed to
fail or that treatment would inevitably be futile.’
It was this that swung the balance. Should it have done so?
Many
in the lay press think the judge was wrong. They will be followed in
due course by many academic commentators. The argument is essentially
that this is a suffocatingly paternalistic decision; that a woman who
has suffered most terribly at the hands of her disease is being made to
suffer further in order to keep in play some irrelevant, antediluvian
Judaeo-Christian principles about the sanctity of life; that autonomy
should have won the day (cont p. 94).
A few comments:
(a) Autonomy is a victim of anorexia. It is so badly paralysed that it can’t do all the work.
(b)
The evidence was that a regime of compulsory treatment had a chance of
improving the BMI, and that the patient’s mental state improved
significantly as the BMI increased to 14.5/15. Accordingly the regime is
an autonomy-facilitating regime.
(c) Death, so far as we know, annihilates autonomy.
(d)
The language of sanctity isn’t essential. Many of the cases don’t use
it. Say ‘utmost respect’ for life if you want. The presumption still
does its job.
(e) There are plenty of secular commentators who regard
the notion of sanctity as foundational. Look, for instance, at Hoffmann
LJ (as he then was) in Airedale NHS Trust v Bland.
(f) Don’t be
scared by the spectre of vitalism. It’s not remotely a corollary of the
principle as it is wielded in the courts. Ultra-conservative Catholics,
you’re not helping.
(g) Can we really collapse ‘respect for life’
into ‘respect for autonomy’? Won’t there be lots of casualties in the
collapse? You might, for instance, end up denying life-saving treatment
to young children on the grounds that they’re not autonomous. Would you
treat those children because they are potentially autonomous? Well, so
is the patient in this case.
The presumption in favour of the
maintenance of life is essential. It’s an appropriate tie-breaker in
cases like this. It’s an appropriate way of entrenching intuitions and
keeping patients safe.
It could be used simply as a way of letting
judges sleep better at night – to keep patients’ blood off their hands –
but that doesn’t seem to happen. It seems to be used intelligently,
with an acknowledgement that it can be an instrument of oppression."
