Article for October 2004 edition of The Whistle
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The judgment of the High Court in May 2004 on an attempt by the General Medical Council (GMC) to stop legal proceedings against them by Dr Rita Pal illustrates both the themes of this article: · doctors deciding, without agreement, not to keep patients alive; and, · diagnoses reached on inadequate evidence resulting in catastrophic consequences. In this article, I also raise questions about the lack of funding, the lack of basic equipment and the lack of support for junior doctors just out of medical school. Non-consensual withdrawal of treatmentDr Pal supplied information to The Sunday Times that was published on 2 April 2000 alleging that in North Staffordshire Hospital, patients had been helped to die in order to free beds for other patients. Patients had been helped to die by denial of life-saving treatment, the lack of basic equipment and care for elderly patients, the lack of support for junior doctors potentially placing patients at risk (CHI report, March 2002 ) and in some cases by the administration of diamorphine, a pain killer that often accelerates death, to patients who were not always in the final stages of terminal illness. The concerns over the lack of care and basic equipment had been raised internally in 1998, but ignored. After the article was published, Dr Pal complained to the GMC on the advice of The Sunday Times journalists. However, following warnings from a GMC Committee member, Dr Pal subsequently withdrew the complaint. In June 2000, Dr Pal was informed that the GMC had been attempting to investigate her for ‘unprofessional conduct’, namely raising concerns with the media. Following several requests under the Data Protection Act 1998, a number of memos were accidentally sent to her by the General Medical Council. The GMC memos speculated that she might be "possibly mentally ill and paranoid". However, no such complaint had ever been made against Dr Pal and her general practitioner had certified her mentally fit. In addition, the GMC never met Dr Pal before the court hearing and therefore their speculations were wholly unsubstantiated. These memos led to the recent legal proceedings for defamation, breaches in Data Protection and Human Rights, in which the GMC attempted to argue that casting doubt on her mental health was justified. The judge was extremely critical of this approach, saying: “It is like a totalitarian regime: anybody who criticises it is said to be prima facie mentally ill - what used to happen in Russia.” Dr Pal won against the General Medical Council and the case is now stayed pending mediation. Before 1993, the law on withholding life-prolonging treatment was unclear. The High Court then decided on an application from both the hospital and the family that Tony Bland, who had been in a coma for ten years, should be allowed to die by withholding drip feeds. The judgement stated that future decisions of a similar nature should only be made after application to the Court. In practice, decisions to withhold treatment without the agreement of the patient or relatives or the sanction of the Court have been routine. The Bland decision is now being used as justification by many doctors to end life. The decision to end life is based on very subjective decisions of doctors as opposed to using multidisciplinary views involving the patient and his or her relatives. In 1998 David Glass, who was born in 1986 with severe mental and physical disabilities, was a patient at St Mary’s Hospital in Portsmouth. As a result of infection following surgery, doctors believed he was dying, and recommended diamorphine to relieve his distress. His mother refused consent, and the doctor’s notes recognised that the correct procedure would be to apply to the Court. The mother was prevented from taking her son home to die and, in her absence, he was given diamorphine and his condition deteriorated. Three family members resuscitated David and removed him from hospital by force (for which they were subsequently sent to prison). His general practitioner supplied an antidote to diamorphine, and he is still alive six years later. After the Glass family publicised their case on their website and failed to get redress from the English courts and the GMC, they took the matter to the European Court of Human Rights which, in March 2004, ruled that the UK had unlawfully breached David Glass’s human rights, specifically, Article 8 (right to respect for private life). Following publicity about David Glass and other patients whose death had been accelerated without consent, the GMC issued guidance on withholding and withdrawing treatment. The initial guidance emphasised the need for consultation but left the final decision with the doctor. The latest version on the GMC website, found by searching for “Withholding and Withdrawing Life-prolonging Treatments” gives much more emphasis to second medical opinions and application to the Court and makes it clear that until disagreement is resolved, life-prolonging treatment should be started or continued. Decisions to allow patients to die are not always made by people who are medically qualified. In the case reported by Bunny Pinnington, the head teacher of a Swansea special school in 1996 gave “Do not resuscitate” orders on two children.
Recently, the English courts have been more willing
to intervene to keep patients alive. In July 2004,
Leslie
Burke obtained an order that treatment necessary to prolong his life should
continue when his brain condition degenerates. Mr Burke challenged the GMC's own
guidelines and won his judicial review. The judgment stated that some sections
of the GMC guidelines had been unlawful. Reckless diagnosisThe previous section includes a wrong diagnosis that David Glass was terminally ill, which could have led to his premature death, and improper speculation about Rita Pal’s mental health, based on her letters. There are numerous recent examples of medical opinions based on flimsy evidence being used in the courts. Several parents were prosecuted for murder as a result of the deaths of their children, when the only reason for suspicion was the coincidence that more than one child had died without obvious cause. Medical evidence included inaccurate estimates of the low probability of repeated unexplained deaths, and a hypothesis explaining the behaviour pattern that depended on the argument that the accused committed an act for which there was no independent evidence. This reached an extreme when Professor David Southall argued that a father murdered his children on the basis of seeing him interviewed on television about his wife’s conviction that was subsequently overturned on appeal. The GMC's Good Medical Practice Guidelines prohibit diagnosis without examining the patient first. Many diagnoses can be confirmed by laboratory tests and monitoring of treatment. Where that is not possible, as with some mental conditions, the diagnosis cannot be regarded as reliable and should not be trusted by the courts. |
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Sheila
Porter-Williams |