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Bad doctor, bad prosecutor or bad laws?

Ethics, medical practice and the law should ideally coincide. But as a current affair in Sweden shows, it is all too easy for them to collide.

On March 2 police took a doctor into custody at the Astrid Lindgren Children's Hospital in front of her colleauges, suspected of killing an infant. The background is tragic: last year a three month pre-term infant suffered a stroke, causing serious brain damage. This was likely due to a medical mistake that was duly reported. Some months afterwards the dying infant was taken of ventilaton and died, with the consent of the parents. She was given high doses the painkiller morphine and anaesthetic thiopental to prevent suffering. Apparently the prosecutor investigating the initial medical mistake noticed these high levels and decided to investigate whether manslaughter had taken place. Much criticism has been aimed at the prosecutor for the heavy-handed use of the police and putting the doctor into arrest, especially since the events occured several months ago and it is very unlikely there is any danger of tampering with evidence. But it is more troubling that the doctors involved (at least given currently available information) were acting according to standard medical praxis. Are a sizeable fraction of the Swedish medical profession guilty of manslaughter?

Swedish law is apparently clear on that euthanasia (to actively shorten life with a drug or treatment) is not allowed. Terminal sedation is allowed but not intended to cause death. So if the cause of death was actually the medication rather than the brain damage or the removal from ventilation manslaughter has taken place. However, this would likely be practically impossible to prove, since the physical cause of death (asphyxiation) in an overdose would be identical in the other cases. So unless the prosecutor has found some other evidence the case looks weak.

While the legal situation is might appear clear to the legal profession, it diverges from the actual praxis in Swedish hospitals. Terminal sedation is used even when it might shorten life, and in many cases (especially in intensive care) extreme treatments that could prolong life but not improve quality of life are not used or are stopped when they prove ineffective, such as turning off the respirator in this case. Much is decided by doctors case by case. The management of the hospital and a sizeable number of physicians have publicly supported the arrested doctor, pointing out that she was likely following standard procedure. There is a dearth of ethical and practical guidelines on this area.

In general Swedes appear to be in favour of legal euthanasia, at least of the passive kind. This has led to a strong support for the doctors and fierce criticism of the prosecutor. Despite the pro-euthanasia views of the public parliament has been less keen on changing the law. This is likely due to reasons internal to the political world, such as the presence of religious networks within the parties and the need to keep the Christian democrat party within the ruling coalition. The Swedish medical community has long tried to deal with the legal uncertainties surrounding terminal sedation, but have not been given any decision by the cabinet or national board of health and welfare despite past requests.

The real problem in this case has been the divergence between medical practice (largely supported by the majority ethical view that is in favour of reducing suffering) and legal practice. Since the police or public rarely comes into contact with the realities of healthcare this divergence has been able to grow to an extent where there is a serious discrepancy. There is a real possibility that the "extreme" levels of drugs found
during the autopsy was more due it being performed by the police than
the hospital, where high drug levels among terminal patients are common. If the case ends up in court and the doctor is found guilty of manslaughter, much of medical practice would have to be changed. If she is not found guilty, then many anti-euthanasia people fear that it will create a precedent for euthanasia.

Are doctors above the law? Clearly not, but any workable legal system needs to take the special nature of healthcare into account. Just as it might be illegal for normal people to handle deadly poisons but acceptable for licensed experts, doctors are routinely placed in a special legal framework so that they can do their jobs and be monitored appropriately. But when the law is not being applied, how should they act? In such cases the practice will tend to be controlled by a local consensus, ideally based on shared ethical principles and transparent for debate (which certainly exists; there are vociferous opponents to any move towards euthanasia within and without the Swedish medical community).

The real ethical issue is the spotty enforcement of the law, clearly out of sync with both public and medical opinion. This in turn has been caused by the lack of political and administrative will to clarify the issue. Now it is likely that some individuals – the doctor, the prosecutor, the parents, possibly the medical community and their dying patients – will suffer for this. Unenforced or arbitrarily enforced laws are ethically and practically worse than no laws.

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