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Cite as: The Law Commission's Proposals on Mental Capacity and the Legality of Elective Ventilation for Transplantation Purposes
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The Law Commission's Proposals on Mental Capacity and the Legality of Elective Ventilation for Transplantation Purposes
M E Rodgers
Solicitor and Senior Lecturer in Law, The Nottingham Trent University< Law3rodgeme@ntu.ac.uk>
Copyright © 1995 M E Rodgers.
First Published in Web Journal of Current Legal Issues in
association with Blackstone Press Ltd.
Summary
This article discusses the legality of elective ventilation in the light of the recent proposals on mental capacity by the Law Commission. The author suggests that the process is not tainted with illegality. In addition, the relationship between the process of elective ventilation and the importance of the patient's best interests is explored, through consideration of the definition of 'best interests' put forward by the Law Commission.
Web JCLI | [1995] 4 Web JCLI | Download this file.
Contents
Introduction
The field of medicine is a growing source of potential litigation as patients become aware of their rights, including that to sue. One of the issues within treatment which provides scope for legal intervention is that of the patient's consent to treatment - has the patient consented, is the patient capable of consenting? Due to the current problematic and ad hoc system of dealing with these issues of consent, the Law Commission in Report No 231 (28th February 1995) has concluded its investigation into the law on mental capacity and incapacity. Whilst this Report covers many more aspects of decision making than purely medical treatment, the two fundamental concepts of defining lack of capacity, and decision making by others in a patient's 'best interests', clearly have a medical or diagnostic emphasis. Detailed commentary on the Law Commissions fundamental principles may be found elsewhere, and this article will not attempt an analysis. The Law Commission, in considering a patient's 'best interests', refers in an almost fleeting manner to the issue of 'elective ventilation' of a patient. This medical technique (described in the next section), is declared to be illegal, and contrary to the patients best interests. Provision is made in Clause 10 (4) of the Law Commission's draft Bill for the Secretary of State to authorise such a procedure, indicating that views may change in the future. This bald statement by the Law Commission, and indeed the research on which the Law Commission based much of its opinion, is in the author's view, open to debate. The purpose of this article is to highlight some of the potential conflicts, and inconsistencies that exist and that may arise in future. As with many articles, it will hopefully raise more questions than it answers.Elective Ventilation
Elective ventilation is a medical technique available to improve the supply of donor organs for transplantation purposes. The majority of organs available for donation are the result of deaths, where the patient has suffered a respiratory arrest (stopped breathing) prior to arrival at a hospital's Accident & Emergency department, or shortly after arrival. In these situations the patient will have been artificially ventilated to enable a full diagnosis to take place. By ventilating the patient, the internal organs will be kept in a much better condition for transplantation. By contrast, elective ventilation is a procedure whereby a potential donor is identified prior to respiratory arrest, but with a poor prognosis. Here the patient will be moved to an Intensive Care Unit (ICU), to enable the patient to be ventilated once respiratory arrest occurs. According to New & Solomon et al (1994, 55) this "practice is quite contrary to the traditional use of ICU's, which are considered to be solely for the saving, or at least extension, of life". One could immediately argue that the ventilation of a patient to enable transplantation will 'save life' since the donee patient will benefit from the medical procedure.
The scale of benefit from elective ventilation is necessarily small, since it relies on accurate identification by the medical carers, and the availability of ICU beds. However, in Exeter where a protocol has been in existence since 1988 to deal with elective ventilation, it has been claimed that there has been an increase of 50 per cent in donor organ availability, as highlighted by New & Solomon et al (1994, 55). This may indicate that this is a technique or protocol which should be adopted on a wider scale.
The Legality of the Procedure - Existing Views
The overwhelming view is that elective ventilation is not a legal medical intervention. The Department of Health, through their Health Service guidelines, NHS Executive HSG (94)41, states that where the ventilation occurs "before or as soon as spontaneous respiratory failure occurs...in cases where the clinician's intention in referring the patient to intensive care is not for the patient's own benefit but is to ensure his or her organs can be retrieved for transplantation the practice would be unlawful".New & Solomon et al, elaborate a little further, and refer to the problematic issue of consent (1994, 63 & 64), thus:
"...in law, a patient must consent to all medical treatment whether or not it is in their best interests. In the case of cadaveric donation, in circumstances where the individual concerned is dead, the relatives can authorise removal of organs. Elective ventilation does not satisfy any of these conditions. If a patient is electively ventilated prior to brain stem death being established then it is submitted that the use of elective ventilation will constitute a battery in civil and in criminal law".
The Law Commission agree with New & Solomon et al that the procedure is unlawful and constitutes a battery, and hence is actionable.
A Patient's Best Interests
As the above section illustrates, a patient can consent to treatment, and if they are incapable of doing so, they may be treated in the absence of consent if it is in their best interests. Clinicians, with the assistance of relatives, or possibly the courts, make these proxy decisions in many cases. Elective ventilation is deemed illegal since it may not be consented to, and in addition it is not treatment that will benefit the patient - ie it is not in their interests. A number of issues arise from this proposition.Treatment?
Firstly, is elective ventilation treatment ? It seems to be accepted that it is. In the Anthony Bland case, Airedale NHS Trust v Bland [1993] AC 89, medical treatment was taken to be the 'whole regime', so that, for Anthony the provision of food via a nasogastric tube, was still treatment. However, in the situations where elective ventilation will be used, can the ventilation of the patient be considered part of a regime of medical care? If the patient has suffered injuries which do not necessitate artificial respiration and they then suffer respiratory failure, which would result in death, and post respiratory arrest ventilation would not prolong life, the later ventilation cannot be part of a treatment regime.Life or death?
Leading on from the above proposition, when elective ventilation occurs, is the patient still living ? Prior to advances in medical knowledge, death was established by cardiac arrest, and/or, respiratory failure. If this was still the case, there would be no illegality, since how can you treat a cadaver ? In addition there appears to be an anomaly in the way in which some patients may be lawfully ventilated whilst others may not. The current test for death is to establish brain stem death. In many accident scenarios, the victim is ventilated as a matter of course to enable diagnosis to occur, which will include that of brain stem death. If it is clear that an accident victim has a poor prognosis, ventilation should be unlawful. The only distinction that is immediately apparent between the two types of death is that the purpose in the former is not to allow diagnosis, but to preserve organs, whilst in the latter, only the diagnosis is sought.The Law Commission's proposals
Moving to the issue of best interests, as stated earlier the concept is currently vague. The Law Commission, in its Draft Bill Clause 3(2), has proposed a set of guidelines to assist in proxy decision making. Of the four 'guidelines', those relating to the 'ascertainable past and present wishes of the person concerned, and the factors that person would consider if able to do so,' and 'the view of other people whom it is appropriate and practicable to consult about the person's wishes and feelings and what would be in his or her best interests' are relevant to the discussion.The individual's preference
At present, those individuals, who have clearly expressed an opinion on donation of organs after death, can choose to carry a Donor Card. This is obviously an easy way to establish that individual's wishes. If an individual has made this wish known, then according to the Law Commission, consideration can then be given to other 'factors' that the individual may have wished to bear in mind. One of these factors in this situation could easily be that of whether the individual would consent to being ventilated. It is submitted that it would be strange for an individual to express the desire to donate organs, but refuse to accept an invasive technique to prevent those organs being lost. By stating that this sort of technique is not in a patient's best interests, which the Law Commission does at page 94, the focus is only on the patient's physical well-being. Does the patient's moral or psychological well-being count for nothing ?The relevance of 'Living Wills'
Allied to this expressed wish, is the current debate about 'Living Wills'. A patient may in such a document express the wish for organ donation to occur, and in addition, that they would wish to be ventilated to preserve the organs. Whilst both the Law Commission Report and the BMA, in its Code of Practice (1995) accept that 'Advance Directives (Refusals)' may be valid, they are both clear in that any advance request for treatment will not be legally binding. Hence, if a patient has requested elective ventilation, the clinician at present is not bound to comply, if he feels it is not in the patient's best interests. Once more, this concept of best interests arises.The relative's powers
The second highlighted guideline raises the problematic issue of a relative overriding the expressed views of the patient. Legally, if the potential donor is already dead, then it is the 'person who has lawful possession of the body' who may authorise the removal of organs. If the patient is not known to have expressed a wish to donate, then it is the patient's surviving spouse or any surviving relative who may authorise removal under the Human Tissue Act 1961, s 1 (1)(2). Simple as this may appear, it is still not clear who is in lawful possession of the body. Both Meyers (1991) and Mason (1992) suggest that it is not the nearest relative of the patient, but the hospital managers who have lawful possession and this contention is supported by the Human Tissue Act 1961, s 1 (7). If it is not the hospital, then the nearest relative will be the person who may give authority to remove organs. If the latter is correct, then there will be more likelihood of a legal conflict. A hospital manager is less likely to go against the expressed wishes of the deceased than a relative. It is questionable whether the relative should be entitled to have this power of veto over the wishes of the deceased.
However, what is equally of concern is the ability to consent to elective ventilation for a relative. If the Law Commission's guidelines are followed, then the relatives may be asked to assist a decision making process. It is unclear the extent to which relatives will refuse to accept elective ventilation, if requested as treatment. Should relatives, who may have contradictory views to the patient, be in a position to override the patient's known views ? If this is possible in a still living patient scenario (and it is submitted it is, since the Law Commission places no weight on any of the guidelines), then the organs may well be irretrievable post-death, when the hospital managers obtain the right to authorise removal knowing the patient had indicated his/her consent.
Other Considerations
From the above it is evident that there are many potential areas for conflict within the field of organ donation and the facilitation thereof through elective ventilation. It appears to be the legal aspects that are restricting the use of this technique. The ethical considerations are linked to the legal issues but as New & Solomon et al comment, just because a process is unlawful does not indicate that it is unethical.
If elective ventilation does take place, and is seen as an illegal intervention, what are the consequences? As quoted in the second section of this article, the procedure may be a civil or criminal battery. With regard to the former, the relatives would have the locus to sue - but what would be the level of damages ? If a criminal prosecution were brought, whilst it is arguable that all the elements of the offence at common-law exist, it is difficult to foresee any such action proceeding. In addition, if the patient is ventilated after respiratory arrest, it may be possible to defend by arguing that the patient was already dead.
Public policy would not demand that the technique should be unlawful. Indeed, perhaps the contrary is true. It is recognised that there is a shortage of available donor organs. Procedures which assist to increase that supply will help reduce waiting lists, and consequently reduce the cost of medical treatment pending transplant. Transplantation, as a means of treatment, is clearly cost effective, and promotes a much better quality of life for the recipient. Value for money, and cost implications, are readily considered by the Courts in legal proceedings. Perhaps elective ventilation is an issue that requires the legislature to act proactively rather than wait for the House of Lords.
Conclusion
Death is something that all have to face at some stage in the future. For those individuals who have already considered their fate, and made clear choices as to what becomes of their body, it seems somewhat unfortunate that the legal system may subvert their right to decide. It is accepted that currently elective ventilation may not have a big role to play in the supply of donor organs. However, the availability of organs is not increasing, whereas the need is. Perhaps the legalisation of elective ventilation can help narrow the gap.
Bibliography
British Medical Association (1995) Advance Statements About Medical Treatment
The Law Commission Report No 23, Mental Incapacity (1995) (London: HMSO)
Mason, JK (1992) Doctors, Patients and the Law (C Dyer, ed), (Oxford: Blackwell Scientific Publications)
Meyers, DW (1991) The Human Body and the Law (Edinburgh: Edinburgh University Press)
New, B, Solomon, M, Dingwall, R, & McHale, J (1994) A Question of Give and Take - Improving the supply of donor organs for transplantation (London: King's Fund Institute)