Friday, October 15, 2004

Charlotte Wyatt; A rotten precedent

I’ve been thinking a lot about the case of Charlotte Wyatt and now Luke Winston-Jones over the last few days, and the implications of the case are still being talked about at work.

One of the things that has struck me about the case is the considerable consensus across the political and religious spectrum that it is, firstly, a tragedy and, secondly, that everybody involved in the case is motivated to do what is best for Charlotte. Laban Tall, here and here, seems to be a lone voice of outrage, while spokespeople such Josephine Quintavalle of Comment on Reproductive Ethics and the Pro Life Alliance, and Peter Smith , RC Archbishop of Cardiff, seem to have considerable sympathy for the position of the doctors, even if they fall short of endorsing the judge's decision.

Yet I’m moving towards agreeing with Laban. I’m not as ready as him to question the Christian credentials of Mr Justice Hedley. I’m a pro life, evangelical Christian too and taken in isolation I suspect that his decision is, at least on the balance of probabilities, best for Charlotte, even if it isn’t for her parents. He’s certainly not advocating her termination. The law demands he act in her interest not theirs. Certainly the duty of care owed by hospitals is owed to patients first, and only then to their relatives (although in cases such as this it’s a very close second). This looks a pretty bald statement at first glance, but the needs of parents and patients aren't always the same, and parent, even loving parents, don't always act in the best interests of their children. I think a more than plausible case can be made that quality of life is at least as important as length of life.

I wouldn’t even blame the mess on the NHS. I’m no supporter of our Stalinist healthcare system, but ethical dilemmas such as this this arise under any system, even privatised and mixed ones. Aggressive treatment can cause profound suffering to patients. I’ve carried such treatment out while nursing on adult Intensive Care Units. Aggressive treatment may be worthwhile if it does result is the survival of the patient, but it’s surely less justified if it doesn’t. Providing treatment which leads to patient suffering inevitably has a profound effect on those carrying out that treatment, especially when it becomes apparent the patient will die anyway. Laban might be right on the biased nuances of the word ‘aggressive’, but in this context the opposite of ‘aggressive’ is ‘conservative’ and unfortunately that’s a word with negative connotations too.

So why am I moving towards agreeing with Laban?

That this case came to court at all implies a breakdown in trust between medical and nursing staff and Debbie and Darren Wyatt. Doctors are called on to be calm and professional, and it is they who should bear most responsibility when there is a breakdown of trust. That breakdown might be the caused by a number of factors, but it’s pretty unsatisfactory for everybody if it results in increasing legal involvement in the withdrawal of treatment. Whether Mr Justice Hedley wants it or not, this case does set a legal precedent and doctors will be tempted to resort to the courts more speedily than they did before, especially when dealing with ‘difficult’ families. Evidence over the last thirty years shows that when doctors relinquish a moral high ground, they never retake it. The case of the now widespread availability of abortion and the permitted starving to death of patients resulting from the Tony Bland case being cases in point. A horrifying number of my nursing colleagues agree with euthanasia, and are amazed at my opposition to it. We slide further and further from what is right and we seem unable to return.

In addition there seems to be an increasing suspicion that the NHS routinely withdraws lifesaving treatment for purely economic or ideological reasons. It’s not really a fear I share. I’ve witnessed more examples of patients being given excessively agressive treatment rather than insufficient, but it’s the former that makes the news and resonates with the public. Mostly, I think, because people feel quite powerless over the health service, certainly more powerless than they do over any other commodity they purchase. In the long run we may remember this case as one more brick in the wall of mistrust, though it's worth remembering that there is considerably more distrust between doctors and relatives within the private American system than the NHS.

Another factor is the difference between adult patients dying and children dying. Most patients dying on an adult Intensive Care Unit are elderly, though by no means all. The degree to which a family accepts the death of a loved one is generally proportional to their age. You can accept your eighty three year old mother dying a lot more easily than your twenty four year old husband. Nature has endowed parents with a passionate desire to protect their children, especially when they are very vulnerable, and put their interests first. This sometimes breaks down, but unless there is evidence that it has in this case, it should require more than the balance of probabilities that the doctors know what's best for Charlotte, rather than her parents. This, I think, is the crux of Laban's argument.

This decision may or may not have been best for Charlotte. There‘s a certain irony if it was, because she may have been the only person who does benefit from it. Her parents didn‘t, and neither, in the long run, did the doctors, nor did the population at large. Even the judges may come to regret it. I suspect the judge made the only decision he could, but this case will be used to justify less justifiable cases in the future and that it was made at all sets a pretty rotten precedent.


Anonymous Hugh V. McLachlan said...

I think that people are tending to look at this case the wrong way round. What requires justification is not the withdrawal of medical treatment but giving of it. In general, medical treatment is (legally as well as morally) an assualt unless consent to it is given by the person receiving it. Sometimes, the giving of treatment is justified in the absence of consent as, say, when an injured and unconscious person is removed from a wrecked car. One might reasonably assume that, had the person been able, he would have consented to medical treatment. Furthermore, there would need to be a reasonable presumption that the medical treatment was in the interests of the potential patient.

In this case, the baby cannot give consent. The notion that anyone else can give consent on the baby's behalf is a nonsense, even if a legal nonsense. It is not clear that medical treatment would be in the interests of the baby. It might be in her interests but it is far from obvious that it is.

I suspect that, in this case, while it would be justifiable, even, perhaps, morally obligatory to feed the baby and to try to minimise her suffering, the judge was correct to say that more ambitious and aggressive medical treatment should cease.

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