One of the most difficult decisions for a patient to have to make, or to be made for a patient, is about whether attempts should be made to prolong life once death has become imminent and inevitable. There are many situations in a medical setting where the patient may decide that it is better not to stop or hold up the inevitable processes of dying as it would only cause further suffering with no benefit.
Many factors, however, are important in this decision, primarily the interests of the patient themselves, but also input and actions of the medical team, including the nursing staff. There are a number of difficult situations which raise important legal issues about the rights and duties of the patient and the nurse when the patient's death is imminent or unavoidable.
While euthanasia is still very contentious it has perhaps become more accepted over the last decade with the debate carried out in ever more public forums. Another important factor is the improvement in the medical technologies and the concomitant abilities of medical staff to keep those patients who, in the past would have died, alive for longer. Research carried out by Asch (1996) surveyed 1,600 critical care nurses in the US to ask them if they had received requests to assist in euthanasia or suicide from either doctors, patients, family members or those acting for family members. 17% reported that they had received these requests, while 16% indicated that they had been involved in an assisted suicide or euthanasia.
Further, 4% had hastened a person's death by not actually providing the treatment that was ordered by a doctor. From these kind of figures it can be seen that this sort of situation is an important factor in the professional life of a nurse. While it is often thought that it is the doctor that makes the decision about the ending of life, in practice nurses have a large role to play (Moody, 2003). Nurses will often be involved in observing the request of euthanasia, be actively involved in the decision-making process, carrying out the doctor's orders as well as providing support for the family after the patient has died (Beer, Gastmans & Dierckx de Casterlé, 2004). That is why it is important that there is an understanding of the legal issues involved. In this discussion the legal issues will be briefly reviewed and also some of the relevant cases and the ethical issues are examined to see how these affect the professional practice of a nurse.
The starting point for this type of discussion is always that it is illegal to cause a person's death, with or without their consent. This principle is effective whether a lethal injection is being given or whether the patient is being assisted in their suicide attempt - the Suicide Act 1961 covers this situation. While this is a clear legal principle, the practical application is somewhat muddied by the fact that an omission to act, in other words a failure to provide treatment, can also result in the patient's death. Does this, then constitute an illegal omission?
The case of Airedale NHS Trust v Bland (1993) considered this question. In this case the patient had been involved in the Hillsborough disaster and had received enormous damage to the brain as a result of being crushed. The damage had left the patient in a persistent vegetative state that, all of the medical opinion available agreed, was not open to any kind of treatment that would improve the patient's condition in any way - and indeed had not done so for three years. The patient's father was of the opinion that his son would not want to be left that way and that it was the right thing to do to remove the life-sustaining equipment.
The physicians and the hospital agreed with the father and sought permission from the court that ventilation, nutrition and hydration could be removed so that the patient could be allowed to die peacefully. The court decided that the main aim of medical care was to benefit the patient and that a large body of medical evidence existed that showed that a patient continuing in a persistent vegetative state was not in their interests or to their benefit. While there had been a duty to provide invasive care and treatment for the patient, the omission of this duty was found to be no longer unlawful. For this reason the court allowed the medical staff to remove the provision of ventilation, nutrition and hydration. The court also decided it is necessary in future cases for an application to be made to the court before life-sustaining intervention is removed.
While this case set an important precedent for how medical staff can deal with patients with an extremely poor prognosis, matters are often less clear-cut. Moody (2003) draws an important distinction between passive and active euthanasia, the former meaning that nothing is done to preserve life and the latter that an action is taken to end life. Moody (2003) contrasts these two types of euthanasia in describing two important recent legal precedents for the two situations. In the case of Ms B v An NHS Trust Hospital (2002), Miss B had become paralysed from the neck down and had requested that her breathing support be removed as she didn't want to carry on living.
Legally, a patient can refuse to have treatment, but only if they are deemed to have sufficient mental capacity to make that decision. This case, therefore, centred around whether the patient had the mental capacity to consent to make a decision about her own life. The test for this that was established in Re C (Adult: Refusal of Medical Treatment) (1994) was that the patient must be able to understand information that is relevant to the treatment, must be able to believe that information and, in addition, must be able to balance the sides of the argument when coming to a decision. This test was further clarified by Re MB (1997) which found that a patient is unlikely to have the required mental capacity if they are unable to retain or comprehend information that is important to the decision and they are unable to weigh it in the balance. It was decided in this case that Ms B did have the mental capacity to understand the decision and the court allowed her request.
In the second case, R (on the application of) Pretty v DPP (2002), Diane Pretty was suffering from motor neurone disease. This had left her unable to move any muscles in her body voluntarily from the neck down, unable to talk or eat, but her mental capacity was unimpaired. She arranged with her husband that he would assist him in ending her life, and since this is a criminal offence, she sought an immunity that he would not be prosecuted after her death. The decision of the House of Lords was that the Human Rights Act 1998 did not protect the right of self-determination. Diane Pretty appealed to the European Court of Human Rights who agreed with the House of Lords. Where this case differs from Miss B is that it required an active intervention to bring about Diane Pretty's death - something still considered illegal under UK law.
A further important distinction to be made in euthanasia is whether it is voluntary or involuntary. In the case of R v Arthur (1981), John Pearson was born with Down's Syndrome and after his parents decided they did not want to keep him, the doctor prescribed a sedative and 'nursing care only'. The child died shortly afterwards as a result of not having been fed. The doctor was prosecuted for attempted murder but the court found him not guilty. This seems surprising as clearly the action of the doctor in this situation in not feeding the baby caused it to die. In legal terms, a nurse carrying out the orders of a doctor in analogous circumstances is probably being legally negligent and perhaps even at risk of being prosecuted for homicide.
R v Arthur (1981) raises some important issues about the difference between voluntary and involuntary euthanasia. As Farsides (1992) points out there is often relatively little difference between an act and omission. In many circumstances an omission can be considered an act in any case. Moody (2003) elaborates on this, saying that the emphasis tends to be placed on 'allowing someone to die' because there is generally a feeling that this is morally acceptable, whereas an act of causing someone to die is seen as reprehensible. As can be seen, the boundaries between an act an omission rapidly break down, but as discussed earlier in the case of Airedale NHS Trust v Bland (1993), the legal position tends to make a strong distinction between acts and omissions and so this has a strong effect on the way euthanasia can take place in an 'acceptable' fashion. Still, in both the Bland case and in R v Arthur (1981) there is a legal reluctance to label the medical decisions made in these kinds of cases as criminal.
While some philosophers argue about whether there is really a difference between active and passive euthanasia and where the dividing line runs, the more important issues are practical ones. As is frequently the case, a dying patient will be in considerable pain, and in order to alleviate this pain morphine is often prescribed in large doses. As well as dampening the pain, morphine will also depress respiration and so a life will often be shortened by its use. This is not, however, seen as a case of voluntary manslaughter as the main intention of administering the morphine is not to shorten life, but to alleviate suffering.
This has also been backed up by the case law. Quill (1997) explains that this is often called the doctrine of double effect. By focussing on the intention of the doctor or nurse in the particular situation, it aims to differentiate between actions that are allowed and those that are not. The main problem with this doctrine is, as Quill (1997) points out, that it is very difficult to determine the intention of the healthcare professional - have they foreseen an outcome, or did they intend a particular outcome? The argument ends up as one purely of semantics.
There are a number of ethical issues underlying the difficult area of euthanasia that try to lay down principles that can guide treatment. One of the most basic which has previously been discussed in a legal context, is the idea of withholding or withdrawing treatment. Bound up tightly in this is the concept of medical futility. This refers to the idea that, because of advances in technology, there is a tendency to use the technology simply because it is available, rather than because it is for the good of the patient. A very common example is in resuscitation of patients - CPR. It is now normal for a patient or their family to decide that they do not want to be resuscitated in the event of heart failure: a DNR order.
The General Medical Council along with the Royal College of Nursing have produced joint guidelines on CPR. These emphasise the importance of taking into the account the legal issues inherent in the Human Rights Act 1998, including the right to life (Article 2), the right to be free from inhuman or degrading treatment (Article 8). It also underlines that neither a patient nor their family can insist on treatment that is deemed inappropriate. Moreover, a patient has the right to refuse CPR, or CPR may not be administered if the patient is in the terminal phases of illness. At all times though, the decision must be discussed with the patient and their family unless they specifically request otherwise - the nurse, in the role of patient-advocate, may take on part of this responsibility.
Another oft-mentioned distinction is the difference between ordinary and extraordinary forms of treatment. Edge & Groves (1999) explain that ordinary treatments are those that can be used without excessive pain, expense or other inconvenience and have a reasonable hope of benefit. Extraordinary means are those cannot be obtained under the aforementioned terms and also do not offer reasonable hope of benefit. Critics sometimes argue that this formulation does not take into account the changing nature of medical technology as what perhaps, was once an extraordinary treatment, can soon become an ordinary treatment.
Writers on bioethics, according to Dickenson (2000), have tended to find major problems with the ethical doctrines just described and have mostly abandoned them. By the same token writers on legal issues argue that many of the distinctions are simply unsustainable and a more honest and realistic approach to the end of life is required (Otlowski, 1997). But for a nurse practitioner it is important to know the attitudes of current professionals as this will form the climate in their workplace. It seems from the work done by Dickenson (2000) in surveying doctors and nurses in the US and UK on these issues, that these kind of doctrines are still important in decision-making.
For example in the survey 69% of nurses in the UK agreed that the distinction between extraordinary and ordinary treatments was useful. The survey also asked what it was that caused the most disagreements among staff. Nurses in the UK reported that it was decisions over the medical futility of treatment that caused the most friction, with 60% agreeing. The doctrine that nurses in the UK most strongly believed in was the doctrine of double effect, with only 3% disagreeing with it. It appears from this kind of survey information that, while there are some inconsistencies inherent in the use of some of these ethical ideas, they nevertheless have some utility in a nurse's professional practice.
Looking to the future, calls have come from many areas for the legalisation of euthanasia, according to Banaszak (1999) between 79% and 88% of the UK population are in favour of it. In two other European countries, Belgium and the Netherlands, this step has already been taken in 2002 as Bilsen, Vander Stichele, Mortier & Deliens (2004) report. This is in contrast to the position in the UK - while euthanasia may be the practical effect of some treatments ordered by doctors, it is still illegal to actively kill another person in the UK, despite, even, the wishes of the patient concerned.
As can be seen from this review of the legal and ethical aspects of euthanasia the area is very complicated. There are a number of points that nurses must be aware of and follow in their professional practice in dealing with dying patients. From a legal perspective the only way that a patient can die is if things are seen to be taking their 'natural course'. In other words, nurses and healthcare professionals remain relatively passive and death is allowed to occur without 'active' intervention. Although, as has been seen, this idea is still fraught with difficulties as healthcare professionals rarely remain completely passive as even doing nothing is, in effect, an act. Despite this, there are some established doctrines that are of practical use in dealing with patients at the end of life, that are described as having some utility by current healthcare professionals - these provide the best guiding principles available at present when working within the legal framework
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