The Court of Appeal has stated that a statement in a capacitous patient’s medical notes that resuscitation should not be attempted (a ‘Do Not Attempt Resuscitation’ Order – DNAR), should usually only be inserted after consultation with the patient: see R (Tracey) v Cambridge University Hospitals NHS Foundation Trust and others  EWCA Civ 822 (17 June 2014).
The facts have been widely aired in the media: see, for example, here.
Mrs. Tracey had terminal lung cancer. Her clinicians indicated in the notes that no attempts at resuscitation should be made. Her family found out about this, and were outraged, saying that the DNAR order should not have been made without consultation with Mrs. Tracey. Their quarrel was not with the medical appropriateness of the determination that resuscitation would not be in Mrs. Tracey’s best interests, but with the procedure - the failure to consult. This, they said, violated Mrs. Tracey’s rights under Article 8 of the ECHR.
The Resuscitation Council, intervening, said that a requirement to consult with the patient would interfere with clinicians’ ability to deliver individual and compassionate care. A patient might, for instance, be very distressed by a discussion about a possible DNAR order.
The outcome can be briefly stated:
- Mrs. Tracey’s Article 8 rights were engaged by recording the DNAR in the notes. This followed from, inter alia, Pretty v UK (2002) 35 EHRR 1.
- Her Article 8(1) rights were violated by failing to involve her in the process
- Article 8(2) required the policy adopted by a Trust in relation to DNAR orders to be sufficiently clear and accessible: see Purdy v DPP  UKHL 45;  1 AC 345.
- The absence of a mandatory national DNAR policy was not a violation of Article 8. Local policies would, if properly formulated, satisfy the demands of Article 8(2)
- The concerns of the Resuscitation Council were real, but could be met by an important caveat: there should be consultation with the patient unless the clinician ‘thinks that the patient will be distressed by being consulted and that distress might cause the patient harm.’ Continue reading
The use of placebos in medicine raises a large number of serious ethical issues. Do they involve deceiving patients, or violating their autonomy in some way? Are they harmful to certain patients, in research trials where the actual treatment being trialled is thought likely to be successful? Can placebos – if medically warranted – be funded through a health care budget? All these questions require us to be able to say what a placebo is, and that is more tricky than one might think. Continue reading
Complicity and Contraception: Rethinking Hobby Lobby’s Claim of ‘Substantial Burden on the Exercise of Religion’
Within the next month, the United States Supreme Court will decide whether for-profit corporations shall receive an exemption from providing certain types of contraceptives that are otherwise mandated for healthcare coverage by federal law to employees on the basis of the religious objections of the corporations’ owners. The two cases considered in tandem by the Supreme Court, Sebelius v Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corporation v Sebelius (Hobby Lobby from here on out), feature a Christian-owned arts and crafts chain and a Mennonite Christian-owned furniture manufacturer, the owners of which object to four specific forms of birth control that they claim cause abortions.
In making their argument for an exemption, the claimants rely mainly on the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993. The RFRA states, “Government shall not substantially burden a person’s exercise of religion…” unless “that application of the burden to the person – 1) is furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.” This sets up three tests for judging the permissibility of a government act: the substantial burden test, the compelling interest test, and the least restrictive means test. For the claimants in Hobby Lobby to be successful under the RFRA, the Supreme Court would need to decide first that the government’s ‘contraception mandate’ is indeed a ‘substantial burden’ and second that the provision of contraception is both a compelling government interest and that employer based health insurance is the least restrictive method for securing that interest.
Scholars and journalists have taken various approaches in responding to the range of questions related to these three tests. However, I argue here that Hobby Lobby’s exemption claim can be denied without diving into this spectrum by showing that it fails to meet the first test: the government does not place a substantial burden on the exercise of religion by Hobby Lobby and Conestoga Wood in its ‘contraception mandate.’ Continue reading
The parents of a young woman named Vickie Harvey, who tragically died at the age of 24 from acute myeloid leukaemia, have launched a campaign to give patients the right not to know that they are terminally ill. Eric and Lyn Harvey claim that their daughter lost the will to live when, after her leukaemia returned following a period of remission, doctors told her ‘in graphic detail’ how she would now succumb to her disease. Eric Harvey told the Daily Mail:
After [Vickie was about her prognosis] she changed – and never really got out of bed again. We knew she was dying, but we feel that, if she hadn’t been told that day, she would have lasted longer’. Continue reading
There are reports in the press this week that the remains of 86 unborn fetuses were kept in a UK hospital mortuary for months or even years longer than they should have been. The majority were fetuses less than 12 weeks gestation. According to the report, this arose because of administrative error and a failure to obtain the necessary permissions for cremation.
The hospital has publicly apologized, and set up an enquiry into the error. They are planning to cremate the remaining fetuses. However, they have decided not to contact all of the families and women whose fetal remains were kept on the basis that this would likely cause a greater amount of distress.
Is this the right approach? Guidelines and teaching in medical schools encourage health-care professionals and institutions to own up to their errors and disclose them to patients. Is it justifiable then to not reveal errors on the grounds that this would be too upsetting? How much transparency is desirable in healthcare?
Taking the popular over-the-counter pain and fever medication paracetamol during pregnancy might affect the unborn child more than we assumed – and hoped for. Recently, research began to link pre-natal exposure of paracetamol (also known as acetominophen) to asthma and poor motor and communication skills in small children. Now, a new study published yesterday suggests that taking paracetamol during pregnancy comes with an increased risk for the baby of developing attention deficit hyperactivity disorder (ADHD) later.
The authors of this study investigated 64,322 Danish children (born 1996-2002) and their mothers. The women were asked whether they have taken paracetamol in computer-assisted telephone interviews three times during their pregnancy and shortly after. To asses ADHD in children, the researchers used different ways: they asked the mothers of 7-year-olds about their child’s behaviour using a standardised ADHD questionnaire. Moreover, they used Danish medical registries to gain information about diagnoses of hyperkinetic disorder, which resembles a severe form of ADHD, and descriptions of ADHD medication to the children.
How the Danziger Story Advances the Abortion Debate in America: Actual Futures, Moral Status, and Common Ground
It has become commonplace in recent years to note that the ‘abortion debate’ in America has become entrenched. Indeed, there seem to be few issues in contemporary politics that elicit less common ground than the abortion debate finds in its stalwartly pro-choice and pro-life opponents. It is just as common, if not more so, these days to speak of the ‘attack on Roe v. Wade’ or ‘the attack on women’s rights,’ particularly in light of recent findings that more abortion restrictions were enacted between 2011 and 2013 in the U.S. than in the entire previous decade. Now more than ever, especially for the pro-choice movement, it is necessary to conceptualize novel approaches to the questions of the beginning, end, and quality of life that sit at the heart of the abortion debate. Here I examine a recent case and how it has the potential to advance this debate. Continue reading
Female genital mutilation (FGM) and male circumcision: time to confront the double standard
This month, the Guardian launched a campaign in conjunction with Change.org (the petition is here) to end “female genital mutilation” (FGM) in the UK—see Dominic Wilkinson’s recent analysis on this blog. I support this campaign and I believe that FGM is impermissible. Indeed, I think that all children, whether female, intersex, or male, should be protected from having parts of their genitals removed unless there is a pressing medical indication; I think this is so regardless of the cultural or religious affiliations of the child’s parents; and I have given some arguments for this view here, here, here, here, and here. But note that some commentators are loath to accept so broadly applied an ethical principle: to discuss FGM in the same breath as male circumcision, they think, is to “trivialize” the former and to cause all manner of moral confusion.
Consider these recent tweets by Michael Shermer, the prominent American “skeptic” and promoter of science and rationalism:
This sort of view appears to be common. One frequent claim is that FGM is analogous to “castration” or a “total penectomy,” such that any sort of comparison between it and male circumcision is entirely inappropriate (see this paper for further discussion). Some other common arguments are these:
Female genital mutilation and male circumcision are totally different. FGM is necessarily barbaric and crippling (“always torture,” according to Tanya Gold), whereas male circumcision is no big deal. Male circumcision is a “minor” intervention that might even confer health benefits, whereas FGM is a drastic intervention with no health benefits, and only causes harm. The “prime motive” for FGM is to control women’s sexuality (cf. Shermer in the tweets above); it is inherently sexist and discriminatory and is an expression of male power and domination. Male circumcision, by contrast, has nothing to do with controlling male sexuality – it’s “just a snip” and in any case “men don’t complain.” FGM eliminates the enjoyment of sex, whereas male circumcision has no meaningful effects on sexual sensation or satisfaction. It is perfectly reasonable to oppose all forms of female genital cutting while at the same time accepting or even endorsing infant male circumcision.
Yet almost every one of these claims is untrue, or is severely misleading at best. Such views derive from a superficial understanding of both FGM and male circumcision; and they are inconsistent with the latest critical scholarship concerning these and related practices. Their constant repetition in popular discourse, therefore—including by those like Shermer with a large and loyal audience base—is unhelpful to advancing moral debate.