This story from the Telegraph today gave me food for thought. Kerrie Wooltorton, age 26, had a history of depression and decided that she wanted to die. She, according to the story, drank poison and then called an ambulance.
She had written a note to medical staff saying that she did not want her life to be saved but wanted only to be made comfortable. The doctors treating her, concerned that they would face charges of assault if they took action against her directions and feeling that she had had capacity to make those decisions freely, treated her (or failed to) according to her wishes and she died.
These seems to stem from the introduction of these ‘living wills’ or advance directives under the Mental Capacity Act 2005.
It raises some interesting points though about capacity and how much one can respect a wish to die. How much does the illness that is depression impact on the ability to make a rational decision. I say this resonates with me because I have been asked to assess in situations where someone has made logical plans to die and there isn’t necessarily an obviously apparent mental illness. It is a distinction that is fine and sometimes goes against our gut instincts to battle for life at all costs.
And is the quality of that decision different when the circumstances and ages change? I don’t have an answer that sits comfortably with this myself – would we say that a person aged 94 whose partner of 60 years has died and who has no other family and deteriorating physical health when making a decision to die is in a different position to a 26 year old woman who has been told she can never have children?
It feels different, although logically it shouldn’t.
The intention of the Mental Capacity Act was not to allow this kind of circumstance so it will be interesting to see which way the GMC goes with the complaints against the doctors involved. I wonder though if they had taken a decision to intervene, how far an assault case against them by the complainant would have gone.
The Mental Capacity Act seems to make allowances for ‘life-saving’ decisions to override all other pre-decisions made. However one of the doctors at the hospital is quoted as saying
“I would’ve been breaking the law and I wasn’t worried about her suing me, but I think she would have asked, ‘What do I have to do to tell you what my wishes’
And, rightly, I think, the coroner did not blame the hospital for her death saying
“She had capacity to consent to treatment which, it is more likely than not, would have prevented her death. She refused such treatment in full knowledge of the consequences and died as a result.”
I suppose there is an issue of how much her depression clouded her judgement but it doesn’t necessarily indicate a lack of capacity in itself – perhaps, on a decision-specific case, it could be queried though.
It seems that the advanced decision was valid as long as Ms Wooltorton had capacity and thus any medical professionals that acted on it are protected by the law from any action taken. The law is clear that no advance decisions can be made requiring someone to assist with suicide but that was not the case in this situation – the advance decision revolved solely around a refusal of active treatment in a specific circumstance.
The only paragraph in the Code of Practice for the Mental Capacity Act which covers people who feel suicidal reads as follows
9.9 Healthcare professionals may have particular concerns about the capacity of someone with a history of suicide attempts or suicidal thoughts who has made an advance decision. It is important to remember that making an advance decision which, if followed, may result in death does not necessarily mean a person is or feels suicidal. Nor does it necessarily mean the person lacks capacity to make the advance decision. If the person is clearly suicidal, this may raise questions about their capacity to make an advance decision at the time they made it.
So looking at that paragraph, would it be possible to determine that because this advanced decision related specifically to a suicide attempt (I am guessing here and might not be correct) that it is possible to infer a lack of capacity because of those suicidal thoughts?
I think the only answer there is that this situation might ‘raise questions’ which in my mind seems to imply the decision could be made either way with protection from legal liability.
It just makes me glad I’m not a doctor in that situation..
I’d be interested to know what others think though.. because I really am unsure about this one.