Capacity to die


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.

8 thoughts on “Capacity to die

  1. It’s sadly not an uncommon scenario where I’m asked to give a second opinion on someone’s capacity to decline life saving treatment.

    Usually they’re capacitated. Usually they die.

    As you know, this lady doesn’t seem to have a valid Advance Decision. The CoP spells out what needs to be satisfied for a written Advance Decision about life sustaining treatment/death needs to be valid.

    It’s moot. It clearly conveyed her wishes. Either she had capacity so the doctors appropriately tretaed her as she directed. Or she was an incapacitated adult and they had information to guide their “best interest” decision making. It seems that the former’s being asserted – that she was a capacitated adult – so quite correctly she received the end of life care she sought but not the interventions she was refusing.

    Ideally, people wouldn’t wish to die. But if they do, it would seem that this is how it should be thought through, and this is how her wishes should have been managed, no?

    • That it the way it has been played out. I suppose I’m just feeling uncomfortable with it but that’s not an issue about whether it’s legal or not. I’m thinking through ways in which it could have been approached in a different way, simply because it seems so inpalatable but that isn’t a question of legality as such.

      I understand she had made 9 previous suicide attempts although that information may not necessarily have been at hand at the time of her hospital admission, it does raise the issue brought up in the CoP but there is nothing binding in that paragraph.

      In any case, I have no doubt that those who provided care for her in accordance with her documented wishes have that protection by having done so.

  2. This is extremely sad- especially as depression is a treatable illness. It scares em too, because I know that had advance directives been legally binding when I was 26, I would probably have done the same. Now, I’m very glad that wasn’t the case.
    I do have an AD now- it refuses to allow doctors to prescribe ECT to em ever again, and also lists some other drugs that I do not wish to receive, largely due to the negative ways I know they affect me.
    With regards to end of life treatment, it only says specifically that unless I am diagnosed with a terminal illness, and have had no active episode of bipolar illness within a certain time period, that no doctor should listen to a request to deny or withdraw life saving treatment. That’s precisely because I know that while I may have capacity to make a decision in one moment, if I am or have recently been depressed- or manic- my judgement will be affected by that, and the decision I would make may be very different to what it would be at any other time. My most severe suicide attempt was borne out of such a time- I had recovered from a very severe and long depressive and mixed episode, and couldn’t bear the knowledge that at some time in the future it would probably happen again, so I made a very logical and rational decision to prevent the possibility. I was sane, I felt okay, no depression, I had capacity. But a day later, or even a few hours later, that decision may have beeen very different. Had someone sat and talked about it with me, it might have been very different.
    In that sense capacity is a very difficult concept when it’s linked to any form of mental illness, to my mind anyway- if you’re not currently ill, but any decision you make is affected by incredible fear triggered by memories of recent illness, can you really be said to have capacity? I don’t know.

  3. mmm…I think that the fact that she drank poison and rang an ambulance is the decisive moot point really.

    A conflicted yet powerfully rational ‘problem’ placed on the doorstep of an NHS that couldn’t reach her, she thought? The problem for me is that these questions are only the kinds of ordinary questions people want to ask.

    Professionals need to ask them and to refuse to process suicide requests? Is that what I’m asking?

    How many of these cases are there? How many people are making or are likely to make these kinds of decisions? How much is this changing?

    Do we look in the wrong places for the answers, in the sense that maybe, these acts need to be understood more collectively in their desperation.

    What are we doing to produce such desperation and rejection of society and other people?

    Why is this normal?

    We need to learn from why not only this event becomes normal but where it’s going to happen next, care about where the next ‘suicide’ might come from.

    It does come down, in mental health and end of life situations to the quality of care…picture the quality of hospice care for children being the norm for everyone, the mentally ill, the old. Why is that laughable and idealistic? Why shouldn’t joy be a right for the mentally ill, the old, the terminally ill?

    No expectations are to be raised for the old, the mentally ill, the terminaly ill (unless they’re children). We look after children (apparently) but god, we’re bringing them up to reject and dump their parents and their different peers…..

    There’s no agreed environmental context in health care for the old, the mentally ill that raises the expectations of what’s possible in those contexts. Mental health, illness and aging are practised on people as if they’re migrant and transient features of life, getting old or being ill themselves an underlying condition in the brave new pharma world of individualised medicine for the already healthy?

    To consider suicide you’re desperate, fight or flight, I think. These actions are always desperate, however cathected or distilled or decontextualised within an institutionalised context, fragmented to appear rational.

    We’re becoming desensitised to desperation but that doesn’t mean that it’s really ever acceptable, or that the greater social good is ever achieved in facilitating these procedures.

    • The decisions are definitely being made – but few of them follow an active suicide attempt which is why this particular case has been highlighted.
      Quality of care and quality of life – massively important factors especially in times when we are looking to making cuts across the board.
      I have though, come across people who I would absolutely consider to have capacity, who aren’t necessarily depressed and who have an active wish to die even though there is no discernible mental illness. But in this circumstance, she had 9 previous attempts and was suffering from depression ..

  4. This story hit a nerve with me,… I know too well the sorrow of being childless..It is a lonely road indeed. imagining the child you should of had.. the word mommy… locked inside your heart.. I too have infertility problems and suffer deep depression over being child less and recently fatherless.. ( he passed away last year…)

    But through it all… i realize that I can be someone’s mommy.. adoption exists and many children are depressed and mommy less… They too hold a vision deep in their heart of a hopeful family..
    I have learned to allow this reality to permeate the dark depression with colors and hope…

    I wish the doctors would have revived her.. She could have chosen a better path.. She looks like she could of made some child already in the world a wonderful mommy.. And for that I am extremely sad.

    • Thanks for that. Yes, I have to say, I remain uncomfortable with this and somewhat thankful that I wouldn’t be placed in the situation that the doctors were..

  5. I’ve been thinking about this story and your post kind of all week. Trying to decide how I feel about it. I work in an acute care hospital. There are many times we see people reject medical treatment because they feel the side effects are too much of a burden or because living with their disease, whatever that may be, too much of a burden. Many times, if they choose that option, they have hospice care as an option. In the state I live in, they have the option of pursuing physician assisted death (although if they pursue this option, it’s quite a process and very few people have the ability or finances to follow through).

    Depression certainly is a disease that is very burdensome on those who suffer from it. The medications can have less than desirable side effects and I can understand how living with the disease can be just too awful to take anymore. Maybe the treating doctors looked at it like they might someone with kidney disease who makes the decision that they just do not want to pursue dialysis…certainly it means that they will die but that is their choice. I don’t know, but I am glad I didn’t have to make that decision.

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