Euthanasia debate ripples across Europe

Euthanasia debate ripples across Europe

Articles are written by Veronica English, Danielle Hamm, Caroline Harrison, Rebecca Mussell, Julian Sheather and Ann Sommerville, BMA Ethics Department: ethics@bma.org.uk

A debate about physician‐assisted suicide dominated the French media during the spring of 2007, ignited by the trial of a French doctor and nurse accused of poisoning a cancer patient in the final stages of her illness.

The lawsuit against Dr Laurence Tramois and nurse Chantal Chanel, which began on 12 March 2007, was preceded by a manifesto calling for the de‐criminalisation of euthanasia, signed by over 2000 health professionals. The manifesto called for an immediate halt to the prosecution of the accused and revision of the law as soon as possible.¹ The two leading French presidential candidates at the time of writing, Mme Ségolène Royal and Mr Nicholas Sarkozy, also pledged their support for a revision of the law on euthanasia for the terminally ill.² As the law currently stands, doctors are permitted to withdraw life‐sustaining treatment from the terminally ill under certain circumstances, but are not permitted to actively hasten a patient's death. Ms Chanel was acquitted on 16 March 2007. Dr Tramois was convicted of murder and given a 1‐year suspended jail sentence.

The debate around the withdrawal of life‐sustaining treatment also received widespread attention in Italy early in 2007, following the death in December 2006 of Piergiorgio Welby, a 60‐year‐old patient in the final stage of muscular dystrophy. Mr Welby was helped to die by Dr Mario Riccio, who, at his request, switched off Mr Welby's ventilator. The matter was investigated but Dr Riccio was not prosecuted.³ The case, however, was divisive in the predominantly Catholic country, and Mr Welby was refused a Catholic funeral on the basis that he had gone against Catholic teachings through expressing a wish to die.

In the UK, the withdrawal of life‐sustaining treatment is legal if it is made at the request of a competent patient, is deemed in the patient's best interests or is requested by a valid advanced directive.ⁱ Physician‐assisted suicide, or active euthanasia, is viewed as morally and legal different to the withdrawal of life‐sustaining treatment.

The most recent move to review the law in favour of physician assisted‐suicide in England, the Assisted Dying for the Terminally Ill Bill, was blocked by the House of Lords in May 2006. However, the British Social Attitudes report, published in January 2007, shows that out of a poll of 3000 people, 80% favoured a change in the law to allow doctors to actively terminate the life of terminally ill patients at their request.

Euthanasia is currently legal in the Netherlands, Belgium and Sweden but remains illegal in most countries. The events described above, however, seem to indicate that the debate is far from resolved.

Amending the Mental Health Amendment Bill

The government's new Mental Health Bill, which amends the Mental Health Act 1983 and the Mental Capacity Act 2005, has itself been heavily amended during its progress through the House of Lords.⁵ The Amendment Bill, which replaces two earlier draft bills which were heavily criticised by professional and user groups, seeks to do the minimum necessary to bring the 1983 Act into compliance with judgements from the European Court of Human Rights. It also aims to fulfil several strands of government policy in relation to broadening the professional basis of those who can exercise powers under the Act, and in relation to the provision of treatment for individuals with “personality disorders” who have at times been resistant to treatment. It also introduces new powers for the use of supervised compulsory treatment in the community. An outline of key amendments introduced in the Lords is given below. It is likely that the government will seek to overturn many of these when the Bill goes through the House of Commons.

Decision‐making capacity

In the UK, mental health legislation is unique in allowing the compulsory treatment of individuals against their wishes, even where they retain the capacity to refuse. This has been an area of ethical controversy, widely seen as discriminating against individuals with mental illness. The amendment requires that one of the conditions of compulsion is the presence of a significant impairment of decision‐making capacity.

Treatability

Another area of intense controversy has been a change in the definition of what has come to be called the “treatability test”, but which the Bill refers to as “an appropriate treatment test”. Section 3 of the 1983 Act stipulated that in relation to psychopathic disorder or mental impairment, treatment must be available for a person that “is likely to alleviate or prevent a deterioration of his condition”. The Bill replaced this with the stipulation that treatment must be available “which is appropriate in his case”. Given that the Bill contains a very wide definition of treatment, including “habilitation” and “rehabilitation”, many commentators felt that this expanded the reach of the Bill beyond those who have a legitimate health need for intervention. The “treatability test” has been reinstated by the Lords.

Exclusions

The 1983 Act listed a number of conditions that on their own would not be justification for using compulsory mental health powers. These included promiscuity, sexual deviancy or dependence on alcohol or drugs. The Bill removed the exclusions relating to promiscuity and sexual deviancy. These have been reinstated by the Lords, with the addition of “the commission or likely commission of illegal or disorderly acts”, and “cultural, religious or political beliefs”.

Inconclusive evidence on the benefits of supervised community treatment

A report, funded by the Department of Health, has cast doubt on the effectiveness of a key part of the new Mental Health Amendment Bill, that is, the extension of compulsory powers to supervised treatment in the community. The research, published by the Institute of Psychiatry, King's College London, in March 2007, indicates that there is very little reliable evidence to suggest that compulsory treatment in the community is either effective or ineffective.⁶ Supervised community treatment, which the government hopes will be particularly effective in relation to patients whose compliance with treatment regimes deteriorates on discharge from hospital, is permitted in several countries, including New Zealand and some states in Australia and America.

In March 2007, the government announced its intention to fund further research to examine how supervised community treatment will work in practice.

Confidentiality and sexually active young people in Northern Ireland

In 2003, new guidance on sharing information about vulnerable young people was drawn up for England and Wales. Although the guidance fell short of imposing a mandatory obligation to report sexually active children under the age of 13, it has been pointed out subsequently that the situation in Northern Ireland might be different. Section 5 of the Criminal Law Act (Northern Ireland) 1967 imposes an obligation to report individuals who commit an “arrestable offence”, which would include sexual activity with a minor. This could therefore mean that health professionals would be under an obligation to report to the police any person under the age of consent who discloses information about sexual activity. Section 5 does contain a “reasonable excuse” clause and it may be the case that the courts would consider the provision of advice and treatment to young people for the purposes of their sexual health as providing such a reasonable excuse. The law is far from clear, however, and in July 2006 the Northern Ireland Office issued a consultation on reforming the law on sexual offences in Northern Ireland. The consultation specifically raised the obligation under the Criminal Law Act. At the time of writing one option being considered by the Northern Ireland Office is bringing the law in Northern Ireland into step with the law in England and Wales.⁷

It is unclear, however, what will happen to the draft legislation once devolution is restored to Northern Ireland. It is possible that the Assembly will abolish or amend the legislation planned to clarify this legal ambiguity under Direct Rule.

Abortion

In previous Ethics briefings challenges to the confidentiality of under 16 year olds seeking contraception and abortion services were highlighted when a mother, Sue Axon, argued unsuccessfully that she had a right to know if her daughter sought an abortion.⁸ In March 2007, a further challenge was made by Conservative MP Angela Watkinson who proposed:

that leave be given to bring in a bill to require practitioners providing contraception or abortion services to a child under the age of 16 to inform his or her parent or guardian; and for connected purposes.⁹

In 2005, approximately 4000 girls under 16 years old had abortions in England and Wales.¹⁰ This is said to be one of the highest rates for abortion for this age group in Europe. Mrs Watkinson argued that the impetus for the Bill was to reduce the number of teenage pregnancies and sexually transmitted diseases. It was argued, however, that obliging under 16 year olds to inform their parents was not the solution. Instead there should be better access to sex education. The Department of Health's 2004 guidance Best practice guidance for doctors and other health professionals on the provision of advice and treatment to young people under 16 on contraception, sexual, and reproductive health already advises health professionals to encourage, but does not oblige, young people to involve their parents; very often health professionals help girls to tell their parents.

The BMA has frequently argued that if young people believed consultations with their doctors were not confidential they would simply be put off seeking help. This could result in an increase of sexually transmitted diseases, teenage pregnancies and girls being forced to become mothers because they had passed the legal limit for an abortion or having to experience late abortions.

The motion was defeated, 159 votes to 87, and the Bill will not, therefore, be debated.

British Medical Association publishes a “right to health” toolkit

The British Medical Association, working with the Commonwealth Medical Association, has published a toolkit for health professionals on the practical implications of the right to the highest attainable standard of physical and mental health. The toolkit, funded by a Strategic Grant Agreement from the UK's Department for International Development, is aimed at an international health worker audience. It gives health professionals practical advice about the meaning and significance of the right to health, as it appears in the International Covenant on Economic, Social and Cultural Rights. The toolkit was launched in June 2007, and is freely available via the BMA's website: www.bma.org.uk/ethics.