Suicide woman allowed to die

By Julian Savulescu

As read about in the Telegraph, doctors allowed 26-year-old Kerrie Wooltorton to die after she swallowed poison and gave them a letter instructing them not to intervene.

 

Reference:  Savulescu J. Should All Patients Who Attempt Suicide Be Treated? Modern Medicine 1995; Feb:113-120.  Reprinted in: Monash Bioethics Review 1995; 14: 33-40. With reply to critics: Savulescu, J. "Response to Bailey." Monash Bioethics Review 1996; 15: 44-5.

Should All Patients Who Attempt Suicide Be Treated?

Summary

Some patients who attempt suicide refuse treatment.  These patients are invariably treated if brought to hospital.  There are several reasons for this.  These reasons justify the treatment of many of these patients, but not all.  Some patients who attempt suicide ought to be allowed to die.  My argument for this claim turns on judging some patients who attempt suicide to be sufficiently competent and rational to be allowed to die. 

The Case of David

David was a 35 year old male who was brought into Casualty after having taken paracetamol in sufficient dose to cause death.  On arrival, David refused treatment.  He was lucid and orientated.  There were no symptoms or signs of major depression or psychosis other than his suicidal ideation.  His cognitive function was normal.  He was informed about would happen to him if he were not treated.  He understood clearly the consequences of his action.  He offered the following note.

"I have a chronic leukemia which will kill me.  I may live another one or two years.  It is true that I am well at present.  But I want to die now while I am relatively well, before I am hospital-bound, bleeding, unable to control my bowels and in pain.  I have talked to my family and said all I want to say.  I've done the things I wanted to do.  Life holds nothing for me now.  In a sense, I am dead already.  It will be easier for my family this way.  I won't just linger on.  I always promised myself and hoped that I would have the courage never to become a burden on others, but rather to go in the right way.  Right for me, at least.  Please respect my wish not to live like this."

David physically resists treatment.  If he is to be treated, he will have to be shackled, a nasogastric tube forcibly inserted, perhaps gastric lavage performed, charchoal and later n-acetylcysteine administered.  Should this be done against David's protests?

The Importance of Competence

Liberal societies like Australia are founded upon a belief that each person has a fundamental interest in forming and acting on his own conception of what is good for him, what direction his life should take, what is best for him.  This belief finds classical expression in Mill's harm principle: that the sole justification for the exercise of power over an individual against his will is to prevent harm to others.  "His own good, either physical or moral, is not a sufficient warrant."[1] 

This principle has crystallized in common law.  In the case of Schloendorff v. New York Hospital, Justice Cardozo observed in 1914, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body."[2]  This common law principle grounds the requirement that a person must give willing and informed consent before a medical procedure is performed upon him.  According to the common law principle expressed in Scholendorff, a patient "of sound mind" can refuse any medical treatment, even such treatment necessary to save his life. 

There is one exception to this requirement.  Procedures can be performed upon a patient in his best interests, against his will or without his consent, if that patient is not of "sound mind."  The notion of being of "sound mind" is today embodied in the notion of being "competent" to consent. 

The notion of competence is pivotal to determining whether patients like David ought to be treated.  It has recently been reviewed in The Journal.[3]  Buchanan and Brock argue that competence to make medical decisions requires: (1) the capacity for communication and understanding, (2) the capacity to reason and deliberate, (3) a consistent and stable set of values.[4] 

Can a Person Competently Desire to Die?

Today, having a desire to die is not itself sufficient to establish that a person is incompetent.  Mr Nicholas Tonti-Filippini, a hospital ethicist at St Vincent's Hospital, Melbourne, describes two illustrative cases of patients competently desiring to die "which changed the law in Victoria."[5]

The first case is of John McEwan.  He was 29 years old when he broke his cervical spine in a diving accident.  He was left a quadriplegic and dependent on a ventilator.  Six months after the accident, McEwan repeatedly asked to have the ventilator turned off.  When this was refused, he put himself on a starvation diet with the intention of killing himself.  Six days later he was "certified insane to enable his medical advisers to assess his mental state.  The certificate was later rescinded."  McEwan recommenced eating but continued to express a desire to die.  Professor Ball, a psychiatrist, "declared that he was sane and this wish to die was a reasonable response to his circumstances."  This opinion was confirmed by a number of independent psychiatrists.

Tonti-Filippini agreed.  He described life on the ventilator as "a precarious, burdensome existence that demands great fortitude on the part of a conscious, competent patient."  It was his opinion that McEwan "had no obligation to endure such burdensome treatment, although it was desirable that he should try."  He also "felt that no one had the right to demand that he continue with the treatment."  McEwan eventually died of "central nervous system malfunction and chronic tracheobronchitis", just over one year after his accident.

Tonti-Filippini's second case was of a 45 year-old woman, Mrs N.  She developed respiratory failure requiring artificial ventilation.  A diagnosis of atypical motor neuron disease affecting her intercostal muscles was made.  The disease spread to involve other muscles.  She wanted to die.  Repeated psychiatric examination found her to be sane.  Tonti-Filippini and the nursing staff involved in her care formed the opinion that "she was competently, freely and informedly refusing treatment, and that opinion was recorded by several independent consultants."  He argued that she was not morally obliged to have treatment that she found burdensome and that she had a moral right to refuse medical intervention.  Her treatment was withdrawn and she died.

Both McEwan and Mrs N. competently desired to die.  A person's desiring to die is not sufficient to establish that that person is incompetent.  Based on cases like these, Tonti-Filippini notes that the Victorian Parliament passed the Medical Treatment Act 1988.  This act provides legal protection and mechanisms for (1) patients to refuse treatment and (2) doctors to respect these refusals.  There are two types of refusal. 

Firstly, a competent person may complete a Refusal of Treatment Certificate for a current, named condition.  Such a person must be of "sound mind" (and over 18), informed and understand the nature of his decision.  The decision must be voluntary and clearly expressed.  It is a legal offence to provide treatment, including life-sustaining treatment, if a patient has completed a Refusal of Treatment Certificate rejecting such treatment.  A patient completing a Refusal of Treatment Certificate can refuse any medical treatment except palliative care.  No legal or other disciplinary action can be taken against a medical practitioner who does not provide life-sustaining treatment in the presence of a Refusal of Treatment Certificate forbidding such treatment.

Secondly, a competent person can appoint another agent as (Medical) Enduring Power of Attorney.  This person is given the power to make medical decisions for the patient, if or when he becomes incompetent.  This applies to any medical condition.  The Agent may sign a Refusal of Treatment Certificate.

The Medical Treatment Act gives form to the widely accepted belief that some patients ought to be allowed to die.  Which patients ought to be allowed to die?  Tonti-Filippini suggests that the reason why McEwan and Mrs N. ought to be allowed to die has to do with the "burdensome" nature of the treatment in question.  That is not the reason.  The reason why McEwan and Mrs N. should not be treated is because they both competently refused treatment, with understanding of the consequences of their choice.  Notably, the Medical Treatment Act 1988 does not require that treatment be "burdensome" for it to be rejected.  It only requires that a person be of "sound mind" and have information and understanding of what he or she is doing. 

Is Suicide Different?

Tonti-Filippini argues that resolution of the issue of whether seriously ill and dying patients like McEwan and Mrs N. are to be allowed to die "ought not facilitate suicide or homicide."  He claims that "[t]here is an intuitive difference between refusing treatment as a part of a suicidal project and refusing because the treatment itself is futile, overly burdensome, or against one's religious or cultural beliefs."  In a related later section, he claims that "[t]he Victorian Parliamentary Social Development Committee in its unanimous report on dying with dignity made a clear distinction between refusing treatment for reasons such as these, and suicide."

Mill argued that harm to self is not sufficient warrant for interference with an individual's actions.  The psychiatrists, Kaplan and Sadock, in their discussion of suicide, express the opposite view:

"Danger to self is one of the few clear-cut indications presently acceptable in all states [of the United States] for involuntry [sic] hospitalization."[6] 

Suicidal patients are treated against their will for at least four reasons: (1) they are assumed to be depressed or otherwise mentally ill; (2) their act is often taken to be symbolic (they are really pleading for help); (3) their attempted suicide is impulsive and they will later be glad that their life was saved; (4) there is no second chance if one is allowed to die, if one did not really want to die.

These are all important reasons.  Together they justify taking a default position of treating patients who attempt suicide.  However, even if they were all true and good reasons in general, they would not justify the treatment of all patients who attempt suicide.  One need only reflect on the case of McEwan.  Suicide can be defined as intentional self-killing.  Both McEwan and Mrs N. are no less suicidal than David.  Both have the intent to kill themselves, so bad is their current situation.  At the time of his self-enforced starvation, McEwan was attempting suicide.  Yet we believe that he was competent and ought to have been allowed to die.  Clearly some patients who attempt suicide are not sufficiently depressed to render them incompetent, are not pleading for help, will not thank us and really do want to die.

Moreover, compare suicide to other cases of self-abuse permitted by society.  it may be true that a person is depressed, really wants to give up her addiction to alcohol, and will thank us if we stop her drinking.  But if she is competent, unless she asks us, at least implicitly, to intervene in her behaviour, we ought not to forcibly stop her drinking alcohol against her express protests, regardless of the weight of evidence that she really wants to give up.  The level of competence displayed by alcoholics in their "choice" to become alcoholics or to remain alcoholics is no greater than that displayed by many people who choose to take overdoses of drugs.  In both cases, the fatality of one's behaviour may be equally obvious.

In one way, there is even more reason to interfere with chronic alcohol abuse than with some cases of acute drug overdose.  Alcoholism is a physical addiction.  The choice to continue to drink alcohol may be less voluntary than that to take an overdose of paracetamol.  Society chooses not to interfere in these self-abusive behaviours, at least not until very late in their natural history.  Yet it chooses to interfere in the suicides of people like McEwan and David.  This is inconsistent.

There are several reasons why patients who attempt suicide are treated.  "In the heat of the moment," if one cannot evaluate a suicidal patient's competence, then these are good reasons to treat her.  However, none of these is a good reason for treating a competent patient against his wishes.  If it is possible to evaluate a patient's competence before life-saving treatment is commenced, as it is in the case of David, it is preferable that such an examination be undertaken, rather than adopting a blanket policy of treating all patients who attempt suicide.

The Importance of Rational Choice

Professor Ball remarked that McEwan's desire to die was "a reasonable response to his circumstances."  In order for a person's desire to die to be respected, we might require not only that he is competent, but also that his desire is "reasonable" or "rational."  Indeed, if a choice to refuse life-saving medical treatment is highly irrational, this constitutes a reason to call into question that patient's competence.

What makes a person's choice rational?  There are two important conceptions of rational choice.  On one familiar account, a person's choice of a course of action is rational if it is made in the face of all relevant, available information, without relevant error of logic.[7]  On some accounts, the person must have vividly imagined as far as possible the consequences of choosing each of the various options on offer.[8]  This is subjective rational choice.  On this account, both McEwan and David were rational in choosing to die. 

It often objected that this standard of rationality is too low.  A person's reasons must not just be thought out clearly and logically.  They must also be reasonable and intelligible to others.  They must meet some kind of "objective" standard. 

Tonti-Filippini subscribes to an at least partly objective account of rational choice.  He argues that a person is not morally obliged to have treatment which "is futile, overly burdensome, or against one's religious or cultural beliefs."  He claims that the Victorian Parliamentary Social Development Committee agreed that these constitute good reasons to refuse life-saving treatment.  The first two of these criteria constitute objective reasons for refusing treatment.  Does this list exhaust what constitutes a good objective reason? 

McEwan's treatment was not futile.  After all, patients can live for a long time on artificial ventilation.  His desire to die was not an expression of a religious or cultural belief.  It might be argued that the treatment was burdensome.  But is this the only consideration which motivated the judgement that his desire to die was "reasonable"?  McEwan did not just object to being on an artificial ventilator; he objected to living as a quadriplegic.  There are other cases of quadriplegics who have not been ventilator dependent but who have claimed that life is not worth living.  Does the absence of "burdensome treatment" mean that these patients ought to be compelled to live that kind of life?  It is not merely treatment which can be burdensome, but life itself.

What McEwan and Mrs N. objected to is living a certain kind of life.  Life like that, they claimed, is not worth living.  Now surely the reason why McEwan's desire to die was judged "reasonable" is because we believe that a person ought not be compelled to live a life like that, of that quality.  His treatment was burdensome.  But his life was bad in many other ways.  To not be able to move, to be totally dependent, to not be able to interact with the world and the people one loves, to be frustrated in the pursuit of nearly everything one holds important is to live a life which is not worth living.  One objective reason for desiring to die is that a person's quality of life is so bad that she ought not be compelled to live a life like that. 

The most important reason why David ought to be treated differently to Mrs N. or John McEwan is because David's life is not so bad.  It is worth living now. 

To be sure, poor quality of life is an important objective reason for refusing life-saving medical treatment.  But as Tonti-Filippini makes clear, it is not the only reason.  Good reasons to die can be more subjective.  Tonti-Filippini claims that a person ought to be allowed to die for religious or cultural beliefs.  In connection with the limitation of treatment of incompetent patients by proxies, he remarks:

"[L]egal representatives might veto a blood transfusion on behalf of an adult Jehovah's Witness, or an abortion on behalf of a Catholic, or an organ donation for a Shintoist."

One oft-quoted example of refusal of life-saving treatment grounded on religious belief is that of a competent Jehovah's Witness refusing a life-saving blood transfusion.  In the U.S. at least, a Jehovah's Witness has the legal right to refuse a blood transfusion, even if that transfusion is necessary to sustain life.  What then is the difference between the Jehovah's Witness and David?

The Jehovah's Witness' desire is based on the following judgement and belief: "If I receive blood, I'll go to Hell."  David's refusal of treatment is based on this belief: "Future life in a dependent state is not worth living for me."

Tonti-Filippini appears committed to the position that a person ought to be allowed to die for the belief that "If I receive blood, I'll go to Hell" but not for the belief that "Future life in a dependent state is not worth living for me."  How can this be justified?  Surely a person's own considered value judgement about the worth of life provides as much, if not more, objective reason as a belief that if one receives blood, one will go to Hell?

Unless one adopts the untenable position that religious belief represents some "objective truth", one must view religious belief as a set of value judgements about what is important for one's own life.  But as value judgements, they ought not occupy any privileged status.  They represent just another way a person can live his life, another set of commitments.  Most of us agree with Tonti-Filippini that respect for religious belief is important and "conscientious" objection to certain treatments ought to be allowed.  It is important to respect different religious beliefs because it is important to respect different conceptions of the good as far as these affect primarily the person who holds them.  But in a pluralistic society, there is no good reason to give priority to religious conceptions of the good over non-religious conceptions. 

If some cases of attempted suicide are based on value judgements, then it can be seen more clearly why suicidal ideation per se is not a symptom of mental illness.  The Mental Health Act does not explicitly define mental illness, but it does state that the following behaviours are not to be considered evidence of a mental illness: holding a particular religious or political opinion or belief, or expressing a particular philosophy.[9]  This stipulation represents an attempt to remain neutral to different conceptions of value.  The same points apply to other value judgements.  If a person's desire to die is grounded in a value judgement about what is important for his own life, this ought to be treated like an expression of a particular "philosophy," like a commitment to religious belief.  Such value judgements, even if not shared generally, are not themselves evidence of mental illness. 

Two Legal Considerations

There is an important legal question associated with the treatment of suicidal patients against their will.  Is a doctor who allows a competent patient to die committing a criminal offence or guilty of negligence?  There is some uncertainty.  This is one reason why Refusal of Treatment Certificates were introduced.  Certainly actively assisting a suicide is an offence.  However, strictly a doctor who allows a patient to die is committing nothing; he is omitting to do something.  This is at odds with Justice Fullager's interpretation of the law in another case Tonti-Filippini discusses.  Justice Fullager claims that not providing medical treatment to a patient who attempts suicide "amounts to carrying into execution the attempted suicide of the person concerned."  However, if this is so, a doctor who turns off a ventilator at a patient's competent request is arguably assisting that patient's suicide.

However, there is another face to the problem.  A doctor who administers a life-saving blood transfusion to a Jehovah's Witness against his competent wishes is liable to be charged with assault, at least in the United States.  More generally, a patient who appears competent and refuses life-saving treatment could bring a charge of assault against his doctors.  No such charge has been made in Australia as far as I know.  What view a court in Australia would take of such a charge is an open question.  It is possible that such a charge might be upheld. 

Another untried legal question is whether a patient who attempted suicide can complete a Refusal of Treatment Certificate.  If one is convinced by the argument that some patients who are competent and who attempt suicide ought to be allowed to refuse life-saving medical treatment, the legality of such an omission remains to be resolved.  One solution would be to extend the Medical Treatment Act 1988 to cover all refusals of treatment.  We might require that a patient who refuses life-saving treatment be judged to be competent by two senior doctors, one being a psychiatrist.  If the patient is judged to competent, the patient could complete a Refusal of Treatment Certificate which would protect medical practitioners from criminal or other charge.

Conclusion

There are many reasons which explain why we are reluctant to let patients who attempt suicide die.  Suicide used to be a capital offence.  To fail to prevent a suicide would have been to allow a crime to occur.  But suicide is no longer a crime.  When our morals were derived solely from religious teachings, suicide was thought to be a sin.  Christianity, Judaism and Islam all promise a miserable afterlife if one kills oneself (unless one is a martyr or protecting one's virginity).  The Catholic Church withholds funeral and burial rites from people who have committed suicide, though in practice it prefers to call these people "insane".[10]  Suicide used to be immoral, illegal or evidence of insanity; it is now not necessarily any of these.  Suicide may not only be viewed as a symptom of mental illness, a cry for help, a sin, a crime, but as a competent and rational choice.  If a person attempts suicide and continues to competently and rationally desire to die, then he ought to be allowed to die.  The number of people who attempt suicide rationally and competently may be small.  But for them, their treatment may be one of the most important events of their life.

Acknowledgements

Thanks to Dr Helga Kuhse for many helpful comments.


[1]  Mill JS. Utilitarianism, liberty and representative government. New York: J.M. Dent and Sons, 1910.

[2]  211 N.Y., 125, 127, 129; 105 N.E., 92, 93.

[3]  Finucane P, Myser C, Ticehurst, S. 'Is she fit to sign, doctor?' – practical ethical issues in assessing the competence of elderly patients. MJA 1993; 159: 400-3.

[4]  Buchanan A, Brock D. Deciding for others. Milbank Quart 1986; 64(Suppl. 2): 17-94.

[5]  Tonti-Filippini N. Some refusals of medical treatment which changed the law of Victoria.  MJA 1992; 157: 277-9.

[6]  Kaplan HI, Sadock BJ. Modern synopsis of comprehensive textbook of psychiatry IV. Baltimore: Williams and Wilkins, 1985.

[7]  Brandt RB. A theory of the good and the right. Oxford: Clarendon Press, 1979.

[8]  Savulescu J. Rational desires and the limitation of life-sustaining treatment. Bioethics 1994; 8: 191-222.

[9]  The Mental Health Act and other resources: a practical guide. The Health Department of Victoria, 1992.

[10]  Pabst-Battin M. Ethical issues in suicide. Englewood Cliffs (N.J.): Prentice-Hall, 1982.

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2 Responses to Suicide woman allowed to die

  • William says:

    Good stuff, thanks for this Julian!

  • Marco Antonio Oliveira de Azevedo says:

    Julian Savulescu presents us a sound and convincent argument for the assertion that suicide can be viewed in some cases as full rational choices, and I agree with him. Why Law continues forbidden physicians and all persons in general of not interfering with them and their choices? Following Mill’s Harm Principle, it is not reasonable and not morally correct to forbid a rational choice of someone unless it can plausible make some harm in another person. In my interpretation, it means that persons can have claims of not being impeded by others in the course of their rational choices, unless it is reasonable that this impediment will prevent a predictable (and non mere speculative) harm to someone else. But, and what about “non rational choices”? Psychiatrists usually think that suicide is a symptom of a mental disease. The cases cited by Savulescu certainly are not. If Savulescu is right, as I think he is, in the cases like that it is not morally reasonable to interfere. Nevertheless, we can have some arguments for the privilege of medical interference. In emergency medicine, it is not possible to ascertain conclusively that a person made its decision in a full competent mental situation. Then it is reasonable that physicians and other persons, in the course of an emergency situation, can have a privilege, or a license, of interfering. But it is of course still possible that suicide can be attempted in a different situation, like in the case of David, for example. My inference is that physician can have a general moral license of interfering in cases of suicide, but if he/she decides of doing nothing, it is not morally reasonable that he/she be accounted for his or her omission. But if the suicide was not a reasonable decision and the physician interpreted the situation wrongly? Well, in the same token, he couldn’t be accounted for the omission. The Mill’s Harm Principle applies to all cases of suicide and persons and even physicians cannot be accounted for not interfering. Then, where the Law continues forbidding them of not respecting the decision of their patients (a global reality), then the Law is wrong. We are here presented with a situation of a clear injustice. The proper function of Law is to protect the rights of the individuals. Any law that imposes some actions to persons without the requirement of protecting some acknowledgeble right is capricious and merely arbitrary.

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