Monday, 1 April 2013

Liverpool Care Pathway - Of Persons and Non-Persons, Of “Worthless Lives” and “No Best Interests”

GMC guidance states that artificial nutrition and hydration are medical treatments and that decisions about whether they should be used should be made in the same way as for other treatments, such as CPR.

Artificial feeding is defined as “treatment” in the LCP.

This originated in the Lords’ ruling in the Tony Bland case (Airedale NHS Trust v Bland [1993] AC 789). A majority reasoning in that case was that Tony Bland had no “best interest”.
“the only reason that tube feeding has been identified as ‘treatment’ is so that it can be withdrawn . . "
“Treatment” or Ordinary Care?

Dr. Jacqueline Laing says tube feeding is only an extension of ordinary care. 
It is simple basic care, a non-technical extension of the every-day activity of feeding by hand. Above all, it is not an attempt to stabilize, treat or cure a patient, as is something like ventilation. That tube feeding should be regarded as effective ordinary care is emphasized by Keith Andrews of the Royal Hospital for Neurodisability in South London. Keith Andrews is particularly well placed to comment. He was a witness in Bland and it was he who later documented 17 out of 40 misdiagnoses of PVS some three years after Bland was decided (Andrews et al., 1996, pp. 13–16)3. He has been reported as saying that: “the only reason that tube feeding has been identified as ‘treatment’ is so that it can be withdrawn . . . I would argue that tube feeding is extremely effective4 since it achieves all the things we intend it to. What is really being argued is whether the patient’s life is futile—hence the need to find some way of ending that life” (1995, p. 1437). His analysis highlights a most important feature of the Bland decision. After the enactment of the 2005 Act this part of the Bland majority judgement has profound implications. A fact worth mentioning about the aftermath of the Bland case is that nearly a decade after the initial injury another survivor of the Hillsborough disaster woke up.
In her article, Institutionalising Homicide, Vested Interests and Freedom of Conscience, published by Thomas More Institute, Dr. Laing makes arguments of significance and consequence.

The Bland decision opened the door to pursue their aims to such as Dr. Helga Kuhse...
Australian bioethicist Dr. Helga Kuhse suggested a strategy for the implementation of euthanasia by lethal injection: “If we can get people to accept the removal of all treatment and care—especially the removal of food and fluids—they will see what a painful way this is to die and then, in the patient’s best interest, they will accept the lethal injection” 
Dr.Laing freely uses the word 'utilitarian'. An equally fitting a term to use is 'Communitarian'. Read thus, her argument is given even greater ramification and import.The future is frightening.

Extracts follow:

Institutionalising Homicide, Vested Interests and Freedom of Conscience

By:  Dr. Jacqueline Laing— 

Food and Fluids: Human Law, Human Rights and Human Interests

England and Wales has seen radical alteration of the law of homicide and assault. The Mental Capacity Act 2005 (which comes into force in 2007) will soon govern the removal of “treatment” which, after Airedale NHS Trust v Bland [1993] AC 789, includes food and fluids delivered by tube, and in certain cases also, by spoon. It does so by introducing binding advance decisions, attorneys empowered to make certain treatment decisions on behalf of the patient and a new version of the Court of Protection which will replace the jurisdiction of the ordinary courts. It also consolidates and extends recent case law permitting sterilisation and abortion on those considered incapacitated. It permits non-therapeutic research on nonconsenting mentally incompetent adults. By recognising the binding nature of the advance decision, it sets up the conceptual apparatus for introduction of routine administration of the lethal injection. It introduces the notion of an attorney newly empowered to make certain “treatment” decisions on behalf of the patient. Given the abuse and homicide it arguably invites, it is possible to see the legislation as a responsibility-shifting exercise designed to foster new socially useful but fundamentally unjustly won ends.

The Mental Capacity Act 2005 needs to be read in conjunction with other legislation that has appeared recently. The Human Tissue Act 2004 (which came into force in 2006) permits inter alia use of tissue from non-consenting patients. The Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I. 2004/1031) allows for clinical drug trials on non-consenting patients on the authority of novel representatives. The Mental Capacity Act 2005 also expressly permits non-therapeutic research on the non-consenting on the authority of novel third parties. As we shall see, these proposals exist against an intellectual background that can be described as broadly utilitarian. In successive volumes of The Lancet, senior medico-legal figures (Hoffenberg et al., 1997, pp. 1320–1321) representing the International Forum for Transplant Ethics make the case for removal of organs from non-consenting patients in permanent vegetative state for use in transplantation. They also recommend societal opt-out organ “donation” as a way of increasing the stock of organs available for transplant (Kennedy et al., 1998, pp. 1650–1652). For non-utilitarian bio-ethicists these suggestions might highlight the aims, driving interests and moral limits of the legislation. It is also worth remembering too that some twenty years earlier in 1984, at the 5th Biennial Conference of the World Federation of Right to Die Societies held in Nice, Australian bioethicist Dr. Helga Kuhse suggested a strategy for the implementation of euthanasia by lethal injection: “If we can get people to accept the removal of all treatment and care—especially the removal of food and fluids—they will see what a painful way this is to die and then, in the patient’s best interest, they will accept the lethal injection” (Marker, 1993, pp. 94, 267). It is widely argued that this law reform is progressive, fosters patient autonomy and clears the way for necessary scientific research. An alternative, more realistic reading is that these radical alterations in the law of assault and homicide create contradictory and unworkable obligations for health professionals and fundamentally compromise the human rights and bodily integrity of the vulnerable.

The Mental Capacity Act 2005 The Mental Capacity Act 2005 (hereafter, the 2005 Act) has significant implications for mentally incapacitated patients in England and Wales 1. It constitutes the culmination of efforts by successive governments proceeding from the Law Commission Draft Bill on Mental Incapacity 1995, to enact legislation in respect of the 4 Food and Fluids 79 care and treatment of the mentally incapacitated. Read in the light of existing case law, certain sections of the 2005 Mental Capacity Act have profound consequences. Most notably they give a catalogue of new actors power to withhold and withdraw “treatment” including artificial nutrition and hydration from patients who, it should be highlighted, may not be dying. These new decision-makers include donees under lasting powers of attorney (attorneys) and those purporting to bear the advance decisions of mentally incapacitated patients. In addition, wide-ranging powers are established in respect of a virtually unrecognisable Court of Protection now empowered to make life and death decisions governing removal of “treatment” as well as decisions to perform research on, remove tissue from, sterilise and abort the young of mentally incapacitated patients.

The Background to the 2005 Act The 2005 Act allows new agents to require doctors to withdraw or withhold treatment from mentally incapacitated patients. Ever since the controversial and highly criticised House of Lords decision in Airedale NHS Trust v Bland (1993) AC 789, treatment has included tube feeding and even feeding by hand in cases where this is possible. So what the proposed legislation logically authorises is the removal of food and fluids with consequent dehydration to death of patients. When Bland was decided, the case attracted much criticism not least because three out of five Law Lords stated that the aim of stopping feeding was to bring about Tony Bland’s death. Bland was understood, by both supporters and critics of the decision, to mark a volte face in English law. Well-known euthanasia advocates like Peter Singer (1994, p. 1), for example, noted that the case marked the collapse of the Judeo-Christian principle of the inviolability or sanctity of human life. Critics regarded the apparent rationale behind the decision defective (for example, Finnis, 1993, p. 329), and argued that the doctrine of the sanctity of life had been “misrepresented, misunderstood and mistakenly rejected” (Keown, 1997, p. 481). The majority’s reasoning involved three important propositions. The first was that tube feeding was “treatment” not ordinary care (Lord Keith, Bland, p. 858). For the first time tube feeding was regarded as treatment. The second and most important proposition in the majority’s reasoning was that Tony Bland had no “best interest” because he had no meaningful life (Lord Mustill, Bland, p. 897). The third proposition was that while it would have been unlawful to kill Tony Bland with a lethal injection, removal of his feeding tubewould constitute a permissible omission (Lord Goff, Bland, p. 868).

It is precisely because of the dubious reasoning evinced by thinkers as eminent as certain judges in Bland, the International Transplant Ethics Committee (i.e. Hoffenberg et al., 1997) and renowned utilitarians writing on this subject, that we cannot suppose that attempts to foster research and other financial interests would be performed in a manner consonant with the inherent dignity of all human beings irrespective of disability. Accordingly, in relation to “non-persons” or those having “no best interests” and no “meaningful life” the trumping power of illicit financial, medical and scientific interests should not be underestimated.

The experience of the twentieth century bears witness to the abuse, mutilation and homicide of the vulnerable made possible by the power of the state, mass markets, and medical and financial interests. Suggestions for reform of the law regarding food and fluids typically take place in the context of utilitarian personistic “quality-of-life” presuppositions, and interests in shifting legal responsibility for life-and-death decisions, medical research, drug trials, organ harvesting as well as more mundane bureaucratic concerns like bed-clearing. With the Western world undergoing massive demographic change and a growing ageing and non-productive population, it cannot be assumed that these alterations to the positive law are problem-free. By allowing new agents power to require that food and fluids be withdrawn, non-therapeutic research and other procedures (like abortion and sterilisation) be performed on non-consenting patients, novel legislation such as that discussed cannot be regarded as autonomy enhancing so much as a threat to human rights. These laws although touted as progressive, more often than not invite routine abuse and destruction of the vulnerable, obscure accountability and create an inconsistent body of law, with conflicting obligations for health professionals.

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