Angels of mercy? The legal and professional implications of withdrawal of life-sustaining treatment by nurses in England and Wales

Medical Law Review

Volumn 20, Issue 3, 2012, Pages 337-361

  Birchley, Giles ^a,b  

^a UNIVERSITY OF BRISTOL   (United Kingdom)

^b BRISTOL ROYAL HOSPITAL FOR CHILDREN   (United Kingdom)

Author keywords

End of life; Multidisciplinary working; Nurses; Professional registration; Treatment withdrawal

Indexed keywords

ARTICLE; DECISION MAKING; ETHICS; HUMAN; INTERDISCIPLINARY COMMUNICATION; LEGAL ASPECT; NURSE ATTITUDE; TERMINAL CARE; TREATMENT WITHDRAWAL; UNITED KINGDOM;

DECISION MAKING; ENGLAND; HUMANS; INTERDISCIPLINARY COMMUNICATION; NURSE'S ROLE; TERMINAL CARE; WALES; WITHHOLDING TREATMENT;

EID: 84865548787     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fws007     Document Type: Article

References (62)

1. While Scottish and Northern Irish law is largely similar in this area, in preparing this paper I have not examined the possibility of separate approaches in other countries in the UK.
2. Although there is arguably a positive component to such activities, eg D Price, 'Assisted Suicide and Refusing Medical Treatment: Linguistics, Morals and Legal Contortions' (1996) 4 Med L Rev 3, 270-99, these are classed as omissions by the law. For a full discussion of the act/omission distinction, see: G Williams, 'Intention and Causation in Medical Non-Killing: The Impact of Criminal Law Concepts on Euthanasia and Assisted Suicide' (2006) 55-88.
3. M Chiswick, 'Parents and End of Life Decisions in Neonatal Practice' Archives of Disease in Childhood, Fetal and Neonatal Edition 85 F1-F3.2001
4. I think particularly of the complaint brought against the paediatrician Leonard Arthur, and described at length in: MJ Gunn and JC Smith, 'Arthur's Case and the Right to Life of a Down's Syndrome Child' (1985) Crim LR 705-15.
5. Airedale NHS Trust v Bland [1993] AC 789.
6. J Herring, Medical Law and Ethics (2006) 405-91.
7. I acknowledge this wording is controversial, but use it descriptively in order to clearly contrast the legality of such activities when undertaken by doctors, with the illegality of their being undertaken by others as the status of nurses can begin to be clarified by their identity in this instance. I do not use it lightly or wish to imply the type of value judgement that conventional formulations such as 'withdrawal' have been constructed to avoid. Similar caveats apply to my discussion of termination of pregnancy.
8. Note, however, that identity as a doctor alone is not a defence in itself: R v Cox [1992] (unreported) concerned a doctor who was convicted of attempted murder after hastening a patient's death, is a good example. In that case, features that would have allowed Dr Cox to use the doctrine of double effect as a defence were missing, resulting in his conviction-although he was treated leniently. Given the degree to which the facts of the case transgress the Director of Public Prosecution's 2010 guidance on prosecuting assisted suicide, it is likely his treatment would be less lenient today (See Crown Prosecution Service 'DPP publishes assisted suicide policy' (2010),http://www.cps.gov. uk/news/press_releases/109_10/
9. Above, n 5 at 866.
10. N Fletcher and J Holt, Ethics, Law and Nursing (1995) 201-222.
11. Above, n 5 at 866.
12. T James, 'The Appeal to Law to Provide Public Answers to Bioethical Questions: It All Depends What Sort of Answers You Want' (2008) 16 Health Care Analysis 65-76.
13. M Brazier and C Bridge, 'Coercion or Caring: Analysing Adolescent Autonomy' (1996) 16 Legal Studies 84-109
14. Nursing and Midwifery Council, 'The code: Standards of conduct, performance and ethics for nurses and midwives' (2008),http://www.nmc-uk.org/Nurses-and-midwives/The-code/The-code-in-full/2011.
15. The law also allows three other circumstances where death ensues that shall not be examined here. These are withdrawal of treatment following the competent request of the patient as in Ms. B v An NHS Hospital Trust EWHC 429 (Fam); unintended killing as a by-product of the administration of painkillers (the doctrine of double effect) and, in Re: A (Children) (Conjoined Twins: Medical Treatment) (No1) [2001] Fam 147, the killing of one conjoined twin to save the life of another. Discussion of these is unnecessary for my argument.2001
16. Royal College of Nursing v Department of Health and Social Security [1981] 1 All ER 545.
17. Although it is referred to by the Mental Capacity Act s 4(5), the Act contains minimal guidance for practice.
18. This is not strictly true of cases involving persistent vegetative state inasmuch as they do appear to accept there is an intention to end life. This distinction is acknowledged at the end of this section.
19. Above, n 7.
20. Above, n 5.
21. R Huxtable, 'Beyond Bland - Hedging Bets on the Value of Life?' in Euthanasia, Ethics and the Law: From Conflict to Compromise (2007), 115-40.
22. Bolam v Friern Hospital Management Committee [1957] 1 WLR 583.
23. Above, n 5.
24. Above, no 21.
25. C Barsby, 'Case Comment-Manslaughter-Ingredients of Offence Where Death Caused by Gross Negligence' (November 1998) Crim LR 833.
26. I Burrell, 'Appeal clears mother of killing disabled baby' The Independent (London, 19 May 1998).
27. Above, n 21.
28. Although we should note she was being treated, and not subject to any planned withdrawal.
29. G Finn, 'Graduate in mercy killing bid freed' The Independent (London, 21 August 1999).
30. Above, n 31.
31. Above, n 5 at 866.
32. R. v Cox, above, n 9.
33. This need for medical arbitration of best interests is underlined by the process by which those competent to judge their own best interests can refuse lifesustaining treatment. In this case, the principle of autonomy takes a central role by dictating that the individual is the one best placed to determine their interests. Yet in this central role, autonomy contends with the notion capacity, that is, whether an individual is competent to make such a determination of their interests for themselves. It is in this need for collaboration of mental competence that the doctors' professional role in both confirming capacity, and in informing the determination of best interests that arises from it, is quite unique from members of the public, however closely they know the individual and however allied to that individuals interests they may appear. Indeed, where a doctor's duty of care may allow them to omit to act, the duty of a family member may be such that passivity in the face of attempts to end life may be viewed as a sort of active assistance and thus potentially open to charges of assisting suicide. See Huxtable's contrast of legal treatment of passive assistance of suicide by doctors and family members in R Huxtable, 'Assisted Suicide in 'the shadowy area of mercy killing'', in Euthanasia, Ethics and the Law: From Conflict to Compromise, above, n 21, 69-70
34. Gold v Essex County Council [1942] 2 KB 293-303.
35. E Rowe, 'Fundamental Decisions' (1994) 8 Nursing Standard 27-21.
36. J Cassidy, 'Nurse Defends Her Role in Turning off Patient's Alarm' (1994) 90 Nursing Times 12, 5.
37. Above, n 29.
38. Above, n 33.
39. Above, n16.
40. G Cooper, 'Appendix nurse to keep surgery job' The Independent (London, 27 January 1995).
41. Anon., 'British Surgeon in Appendix Row Keeps His Job' (1995) 310 British Medical Journal 6976
42. J Kellett, 'An Ethical Dilemma: A Nurse Is Suspended' (1996) 313 British Medical Journal 7067, 1249-50.
43. Above, n 16.
44. Which, as stated in the previous section, suggested that references to doctors in the Abortion Act recognised a team effort. I will return to the case later.
45. L Hunt, 'For doctor, read nurse' The Independent (London, 27 January 1995).
46. While the National Association of Theatre Nurses produced guidelines that emphasised the importance of training for nurses who are to act as first assistants to surgeons in the operating theatre, this role was constructed for specific procedures and did not include activities such as Sister Tomlinson's in its scope. See: National Association of Theatre Nurses, 'The Role of the Nurse as First Assistant in the Operating Department' (1993); also see: The Perioperative Care Collaborative, 'Position statement-The Role and Responsibilities of Advanced Scrub accessed 12 October 2011. Dimond considers Tomlinson's activities would fall under the general auspices of the nursing regulator's Scope of Professional Practice (United Kingdom Central Council for Nursing, Midwifery and Health Visiting, 'The Scope of Professional Practice' (1992) which merely specifies that an individual must be satisfied they possess the necessary skills to practice competently: as no harm came to the patient in this case, such a loose definition of competence seems satisfied. See: B Dimond, 'When the Nurse Wields the Scalpel. .' (1995) 4 British Journal of Nursing 2, 65-6. Practitioner' (2007),http://www.afpp. org.uk/filegrab/theroleandresponsibilitiesoftheadvancedscrubpractitioner.pdf?
47. United Kingdom Central Council for Nursing and Midwifery, 'Code of Professional conduct' (1992).
48. United Kingdom Central Council for Nursing and Midwifery, 'Position Statement on the Covert Administration of Medicines-Disguising Medicine in Food and Drink' (2001).
49. M Chiarella, 'Searching for the 'true' status the nurse' In The Legal and Professional Status of Nursing (2002), 3-36.
50. Nurses' professional responsibilities are set out in 'The code: Standards of conduct, performance and ethics for nurses and midwives', published by the The Nursing and Midwifery Council. The code contains 61 points, the first 20 of which explicitly detail nurses' duties toward those in their care, while points 21-34 detail duties toward colleagues. The code apparently envisages interprofessional relationships within healthcare as collegial rather than hierarchical in form. As shall be explained in more detail later, the statement that particularly seems to contradict the legal position is found on the opening page of the code: 'As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions.' See: Nursing and Midwifery Council, 'The code: Standards of conduct, performance and ethics for nurses and midwives' (2008) http://www.nmc-uk.org/Nurses-and-midwives/The-code/ The-code-in-full/
51. Understanding from its distinguishing in Cassidy v Ministry of Health 2 KB 343 (at 361) is that it may still exempt a hospital of vicarious liability for a surgeon whom the patient personally selects and employs.1951
52. Hillyer v Governors of St. Bartholomew's Hospital [1909] 2 KB 820, at 826.
53. Above, n 16.
54. Above, n 58.
55. Above, n 38.
56. Above, n 58.
57. As I commented earlier, this may be evidence of an intent to differentiate by choosing to name 'doctors' in Lord Goff's speech in Bland.
58. Above, n 16.
59. Above, n 22.
60. M Brazier and J Miola, 'Bye-Bye Bolam: A Medical Litigation Revolution?' (2000) Med L Rev 8, 85-114.
61. Lord Woolf, 'Are The Courts Excessively Deferential to the Medical Profession?' (2001) 9 Med L Rev 1-16.
62. Bolitho v City and Hackney Health Authority [1998] AC 232.