Current controversies

The problem of late-stage consent in Assisted Dying

Assisted-dying law in Canada requires the person to be alert and able to provide consent just before their death. The Government of Canada website on Medical Assistance in Dying (MAiD) says,

You must be able to give informed consent both:

  • at the time of your request
  • immediately before medical assistance in dying is provided

This seemingly sensible caveat has come under scrutiny after Audrey Parker, 57, diagnosed with stage-four breast cancer, made a public plea for it be abandoned. She died (an assisted death) on November 1st, but was frustrated that in order to benefit from MAiD she had to make arrangements earlier than she would have liked. However, being unable to guarantee that her mental capacity would be sustained during the next few months, she had to make a decision while still able to provide late stage consent. In her case it was quite possible that cerebral metastases, or intercurrent illness, would have rendered her confused or delirious.  The end result was that she had a ‘good death’, but was possibly deprived of some life.

Critics of assisted dying will see this as a very good example of why we shouldn’t legalize it in the UK. How can you pass a law that ‘forces’ people to die before their natural time?

Late-stage consent seems a good, safe idea. It has parallels with other medical interventions or procedures, where the patient’s final ‘permission’ is requested even when consent (or in this case an active request) has been provided earlier on. It ensures that only a patient who is absolutely certain on the day will have an assisted death. But this case shows that laws cannot accommodate all circumstances. There will always be situations that push at the boundaries. Those who support AD will say that the greater good is still served. More people are dying in Canada according to their own wishes, at a time of their choosing. Although apparently forced into a corner, Audrey Parker made a decision and was not coerced.

What if the need for late-stage consent was removed in diseases where cognitive performance was likely to be diminished over time? If a person loses mental capacity, they are unable to exert autonomy at the moment of death, and must hand over the final decision to another. That person, be it a loved one or a professional, will have to make the decision and initiate the final process. This sounds more like euthanasia. However clear the instructions given by the dying person – e.g. ‘when I lose my mind, please make sure my death is not prolonged, please make sure it is assisted’ – a difficult and onerous judgment has to be made by the advocate. The rate of progression of a person’s disease cannot always be predicted. There will be fluctuations. No-one knows how it is going to go, if there will be agitation, acute pain or a gentle retreat into coma. Identifying the point at which the dying person’s wishes should be enacted will be subjective. To ask another to do this, however strongly they agree with the dying person and however much they want to protect their stated wishes, appears too much.

The Canadian newspaper Globe and Mail, which has covered MAiD in detail, obtained a draft report by the Council of Canadian Academies into how to manage the problem of mental incapacity in the era of MAiD. The person with worsening dementia would be the most common presentation. Here, someone with their faculties intact will make an advance decision that their death be assisted when they have lost capacity and appear close to death. Again, this requires others to make a judgment on symptom severity and timing.

Kelly Grant and Jessica Leeder write in The Globe and Mail,

The draft of the partial report analyzes three scenarios for advance requests: Cases such as Ms. Parker’s, where patients have already been assessed by two doctors and approved; cases where patients have been diagnosed with dementia; and cases where people have not received a diagnosis but want to make an advance request for medical assistance in dying (MAiD), just in case.

“The complexity of each individual [advance request] for MAiD would be influenced by the timing of a request in relation to its implementation. [Advance requests] prepared shortly before MAiD was to be provided (e.g., when a patient already met eligibility requirements) would involve much less uncertainty than [advance requests] for MAiD written well in advance of the point at which they might be implemented,” the draft says.

Uncertainty is the issue. How to make decisions regarding a situation that has not yet developed. For people who do not have a diagnosis yet, the ‘just in case’ group, applying for MAiD seems unrealistic. For those with a condition that will predictably cause a loss of mental capacity, it would seem discriminatory for them to be exclude from MAiD. However, to maintain safety, this seems likely to continue. The Dying with Dignity Canada website, in its frequently asked questions page, is clear:

Can one make an advance request for AD?

In Canada, advance requests for assisted dying are not allowed. It is forbidden for a clinician to proceed with administering MAiD without first obtaining final consent from the patient.

[  ] The ban on advance requests has had serious implications for individuals who have been approved for MAiD and plan to die in the next days or weeks. In some cases, patients choose to reduce or even refuse pain medication out of fear that they will be too impaired to provide final consent for MAiD. For some, the pain associated with their medical condition is too great, and they must effectively abandon their request for MAID in order for their pain to be kept under control.


Can a person with dementia qualify for AD?

[  ] A person with a capacity-eroding condition such as dementia might lose capacity before they satisfy one or more of the other eligibility criteria in the law. For example, the person might already be suffering intolerably, but they may not be in an advance state of irreversible decline, or their natural death may not yet be “reasonably foreseeable.” By the time they have reached an “advanced state of irreversible decline,” they may no longer be capable of providing consent for MAiD.

It seems clear that a law passed to ease suffering might, in some situations, cause distress, a sense of ‘hurry’ and occasional paradoxes, such as a patient foregoing pain relief in order to maintain capacity. A mess? Enough to discourage supports of assisted dying in the UK? Quite possibly.

But MAiD has been a success, in a manner of speaking. As Kelly Grant writes in the Globe and Mail,

…1,525 people hastened their deaths with the help of a doctor or nurse between July 1 and Dec. 31, 2017, up 29.3 per cent from 1,179 such deaths in the first half of last year.

There is clearly a need for MAiD in Canada, judging by its uptake. It is providing comfort to a highly vulnerable group who would otherwise lose control of their final hours. Do the ‘exceptions’ justify a change in the law such that MAiD can be extended to those without capacity on the day of their planned death? Is it justifiable that a those who ‘lose their minds’ are deprived of something that those who don’t can benefit from? Or is MAiD, still in its infancy, and a rare thing in a global perspective, too delicate to meddle with?


For an excellent description of how MAiD came into law and who was involved, see this G&M article ‘Fight to the death: why Canada’s physician-assisted dying debate has only just begun’ by Sandra Martin.



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Understanding Gosport


Many doctors and nurses must be trying to understand what went on at War Memorial Hospital, Gosport, especially those who regularly look after patients who are approaching the end of life. Yet, reading the independent report, its magnitude, complexity and ugliness forced me to look away. With its chronological sweep (27 years), terrifying number (‘the lives of over 450 patients were shortened while in the hospital) and interminable bureaucratic delays, it is very hard to comprehend. Easier to turn away, assume that such things could not happen in the ‘modern’ NHS, and spend time considering brighter things.

Yet we must all try to understand. If the report remains in the archives, its conclusions unseen by the general NHS workforce, nothing will have been gained. Hence this essay.

The report depicts a culture in which elderly and frail patients were regarded as burdensome individuals who could ‘talk themselves onto a syringe driver’; it relates how patients were transferred from squeezed medical or surgical wards for ‘rehabilitation’ while clearly at risk of further deterioration. It portrays an environment where expectations for recovery after transfer were so low, anticipatory prescriptions for diamorphine were written at doses sufficient to induce terminal sedation, sometimes without prior medical assessment. The report must undermine the public’s faith in how the NHS treats frail patients. It is likely to become a major piece of evidence in the argument against assisted dying.

This article explores two broad points – personal vs institutional culpability, and the concept of the ‘double effect’ – that came to mind as I read the report.


Murder, euthanasia, gross negligence or just bad medicine?

Many observers, including for example the Channel 4 political correspondent Michael Crick, have asked, ‘Why wasn’t this murder?’


The report presents a clear association between the use of diamorphine in syringe pumps and death, as illustrated in the graph below. Most patients died in the following 48 hours. The yellow bars show the proportions where opioid was given without clear clinical justification.

On the face of it, this looks like deliberate killing. Sir Liam Donaldson, Chief Medical Officer, in commissioning an interim investigation, invoked the case of Harold Shipman, whose crimes were contemporaneous with events in Gosport;

‘Sir Liam proposed that he should commission for this role Professor Richard Baker, who had carried out a similar audit of deaths attributable to Harold Shipman. Recognising that this “would clearly raise the temperature locally and nationally”, Sir Liam said: “he is very sound and we cannot risk a poorly conducted methodology”.’

Individual criminality was considered by the police (during 3 separate investigations), the Crown Prosecution Service and the coronial jury, but at no point was an arrest made. Dr Barton was interviewed by the police, but presented herself voluntarily. The emails, memos and transcripts show how difficult it was to attribute events on the wards to one person alone. Others were involved, responsibility appeared to be distributed, drawing an uninterrupted between one person’s actions and the patients’ deaths was impossible… the system as a whole required scrutiny. An early, internal opnion provided by a legal researcher in the Hampshire Constabulary illustrates this:

“From what little I know of the circumstances surrounding the case you are dealing with it seems unlikely that manslaughter would be appropriate for the following reasons: 1. The ‘neglect’ was more of a corporate issue than individual to one particular person. 2. The death occurred for a number of reasons and was not the direct and immediate result of ‘neglect’. 3. Were the actions of the hospital staff gross negligence or merely inadvertence?”

In the arena of criminal law where significant doubt means little likelihood of prosecution, the prospect of Dr Barton coming to trial faded.

Even if malign intent along the lines of Shipman could not be established, the shortening of lives must, surely, count as involuntary euthanasia. This potent word was openly considered by the GMC in their Fitness to Practise investigation.

“Routine use of opiate and sedative drug infusions without clear indications for their use would raise concerns that a culture of ‘involuntary euthanasia’ existed on the ward.”

But once again, the organisation as a whole came under scrutiny;

‘There is a possibility that prescriptions of subcutaneous infusions of diamorphine, midazolam and hyoscine may have been routinely written up for many older frail patients admitted to Daedalus and Dryad wards, which nurse then had the discretion to commence. This practice if present was highly inappropriate, hazardous to patients and suggests failure of the senior hospital medical and managerial staff to monitor and supervise care on the ward.’

Culpability is once again seen to lie across the clinical and managerial hierarchy.

At the inquest, which examined the treatment of 10 patients, diamorphine was felt to have significantly contributed to death in 5 cases, and to have been prescribed inappropriately in 3 of the those 5. The overall picture was not one of sustained or pre-meditated killing. The families were dissatisfied by this finding, regarding it as a whitewash. The Coroner’s instinct, illustrated in his words to the jury, was clearly to look at the ‘regime’ as a whole:

On Day 15 of the hearings, the Coroner gave an indication of the type of issues that he wanted the jury to deal with: “I think the areas of concern are the clinical regime at Gosport. I think that has got to be a concern to me and to the jury. The degree of supervision; the fact that it is a GP unit I think may have affected the regime in the hospital – the input of the consultants – I wonder if that was sufficient and whether there was enough involvement? … I think the question of appropriate opioids, whether the dosage was appropriate, whether the medication … played a material part in death … It seems fairly significant, being perhaps the most significant factor for the jury.”

Gross negligence manslaughter was also considered, especially by an external expert;

‘Professor Livesley also confirmed that he would support allegations of assault and “the unlawful killing of ————- by gross negligence” against nursing staff and Dr Barton, and suggested that the police undertake other enquiries to determine if other patients at the hospital had been similarly affected.’

In the end, the only sanction taken against Dr Barton was the GMC finding that her fitness to practise was impaired by serious professional misconduct, based on a Fitness to Practice (FtP) panel’s assessment of her treatment of 12 patients. This came after 5 Interim Orders Committee (IOC) meetings that were intended (after Shipman) to identify at an early stage if a doctor is a present danger to patients. The FtP investigation took place 6 years after it was initially scheduled, at the request of the police:

By accepting the police’s request, the GMC’s investigation effectively stalled. As a result, the hearing which had been set for April 2003 did not take place until June 2009. By the time of the sanctions hearing there had been a ten-year delay which in itself affected the sanction which was imposed. The Panel notes this as one of a number of examples of a process of accountability being undermined by deferring to another organisation.

Dr Barton was found deficient in nearly all areas of medical practise, including assessment of patients, note-keeping, prescribing, failing to consult with colleagues, failing to organise cover when off duty, failure to keep up to date, failings in communication and maintenance of trust… everything. Bad medicine, and nothing more.


The ‘double effect’, therapeutic nihilism and distinguishing right from wrong

The Gosport scandal revolves around the ‘double effect’, that is the unintended (we presume) consequence of shortening life while trying to alleviate suffering. The double effect is real, an accepted and acceptable phenomenon. Finding the balance between comfort and respiratory or neurological depression is a skill that requires experience, careful assessment, re-assessment and monitoring.

The [FtP] panel heard evidence from Professor Ford about the ‘double effect’ of drugs given to seriously ill patients to palliate symptoms (that is, to relieve symptoms without treating the cause). The panel highlighted that Professor Ford had said that these types of drugs “may lead to a shortening of life through adverse effects. That is well accepted as being a reasonable and appropriate aspect that may happen when one adequately palliates symptoms.”

Dr Barton openly accepted that the double effect was a ‘price’ that sometimes had to paid for relief;

The panel said that Dr Barton was “clearly aware of the principle of double effect” and when asked about the risk of her prescribing causing “respiratory depression or lowering [a patient’s] conscious level”, the panel highlighted that Dr Barton said: “I accepted that that was a price that we might have to pay in exchange for giving him adequate pain and symptom relief.”

Yet however wayward her practise had become, the senior doctors around her saw no problem. The GMC panel heard the following evidence;

“…at the time in question, the presence of Consultants on Dryad and Daedalus wards was extremely limited. Although the Consultants who gave evidence before the Panel were supportive of you, their evidence tended to suggest that they had not critically examined your prescribing practice, and in many instances had not appreciated your admitted prescribing failures. Had they done so, this should have resulted in appropriate changes being made to your prescribing practice.”

This makes it sound like a failure of supervision. But enhanced supervision occurs when clinical supervisors get a sense of sub-standard performance, or receive comments from others in the clinical area. That did not happen here. Why no sustained alarm bells? Why no correction? Could it be that on cursory review, nothing drastically outside accepted practice was observed? The grey area that is the double effect was too broad, too inviting of subjective interpretation, a zone of shadows where right merged too easily with wrong.

If we put criminality aside (many will not), we must ask whether Dr Barton simply became blinkered in an area of clinical medicine – end of life care – that requires continual self-analysis and reflection? Were the normal corrective influences (feedback from colleagues, mainly nurses in this case, or families) suppressed by a domineering and ‘brusque’ personality? Did her (unconscious) clinical leadership colour the attitude of the whole ward, the whole institution, such that therapeutic nihilism reigned. A patient had only to deviate slightly from an improving trajectory, or become ‘agitated’, to fulfil the profile of a frail, elderly person entering the terminal phase of life, and therefore a candidate for ‘comfort measures’/’TLC’ or any other number of euphemisms mentioned in the report.

Early on, deference was paid to Dr Barton’s position. A document nested in the report – the earliest one – contains an apology to Dr Barton for appearing to question her ‘clinical judgment’.

But isn’t this whole scandal about clinical judgement? A doctor’s incorrect judgement that her patients were dying. Fear of causing offence points to a traditional reverence for the doctor, a hierarchy that exists now and is likely to remain, based on respect for their deeper understanding of pathophysiology and clinical patterns. This hierarchy also assumes finer moral instincts, but there is no basis for this. Nurses have equally good instincts when it comes to sensing what is right and what is wrong. However, most healthcare workers will recall instances where a nurse’s misgivings have been quashed because they do not appear to understand the ‘bigger picture’.



There seems little point in forming our own judgement of Dr Barton, given the careful scrutiny afforded by detectives, a coroner, a jury, various professionals and experts, all specifically tasked to devote time and serious mental energy to the tragic issue. Yet judge we will, because we are human. More useful than judging though, is thinking. Could this, or a more subtle version, occur where we work? How sure are we that life is not becoming devalued in pressurised clinical areas where patients with an uncertain prognosis are admitted? Are deaths being counted and reviewed? Is training in end of life care provided? Is eccentric practice being highlighted by those who find it… odd? Are staff empowered to question ‘difficult’ clinicians? I draw a bleak picture, but our NHS is too massive for the assumption that all is well, all the time, to go unchallenged.

Accountability, blame and medical error after Bawa-Garba


The reaction to the Dr Bawa-Garba case has shown that the medical community finds it hard to accept that individuals can be held personally accountable for underperformance (once we exclude malice, drunkenness or other gross examples). Rather, deficiencies in the healthcare system surrounding the individual should be identified and corrected. Don Berwick was very clear in his report ‘A promise to learn – a commitment to act: Improving the Safety of Patients in England’,


NHS staff are not to blame – in the vast majority of cases it is the systems, procedures, conditions, environment and constraints they face that lead to patient safety problems.


Anyone involved in investigating patient safety incidents will recognise that preceding each one there is usually a system-based issue to be found. For instance; under-staffing/surges in demand, confusing protocols, similarly packaged drugs, or allowance of distraction. At the extreme of de-individualisation – if that is even a word – the system can also be held responsible for placing an underperforming or inexperienced doctor in front of patients in the first place. It can also be blamed for failing to identify and support an individual when they enter a situation that allows their deficiency in knowledge, pattern recognition, or prioritisation to manifest as harm. Etc., etc., ad absurdum. So, does personal accountability for under-performance (in good faith) exist at all?


Smoking gun

It is well established in the patient safety literature, and in the modern philosophy of healthcare, that personal accountability, AKA ‘blame’, inhibits system-wide improvement in safety. Fear of blame dissuades healthcare staff from reporting errors, thus allowing the same mistake to be made again in the future. Fear exists: the Kirkup review into failings in Liverpool Community Health NHS Trust describes how those involved in clinical incidents were brought in for questioning:


‘In practice they were “an interrogation and a frightening experience”. Staff reported feeling physically sick beforehand and approached them with trepidation. Across the organisation shouting and finger-pointing became the norm.’ (Richard Vise, Guardian)


An article by Bell et al in the journal Chest, describes how a missed lung cancer diagnosis can be attributed to multiple failures in the system, but the ‘smoking gun’ is to be found in the hand of the pulmonologist who last had contact with the patient. A classic case. The authors conclude that the pulmonologist, who did carry some responsibility, is absolved by his or her active engagement in fixing the system such that the same error cannot happen twice. This is a message we all must take away; our accountability lies in the duty to work constantly on improving the safety of our systems for patients yet to enter our hospitals – through audit, reporting, and being open.

Speaking at the Global Patient Safety Summit in 20016, The Secretary of State for Health Jeremy Hunt aligned himself closely to this philosophy :

‘…to blame failures in care on doctors and nurses trying to do their best is to miss the point that bad mistakes can be made by good people. What is often overlooked is proper study of the environment and systems in which mistakes happen and to understand what went wrong and encouragement to spread any lessons learned. Accountability to future patients as well as to the person sitting in front of you.’

Yet Dr Bawa-Garba’s fate has shown that despite all these words and aspirations, personal accountability for particularly poor performance still exists. Is this justified?


Individual accountability within a Just Culture

Philip Boysen, an American anaesthiologist, wrote about how to develop a ‘just culture’ in healthcare, drawing from various industries and organisations, some historical. He acknowledged that blame may still have a role within a just culture;

‘While encouraging personnel to report mistakes, identify the potential for error, and even stop work in acute situations, a just culture cannot be a blame-free enterprise.’

Boysen refers to a paper ‘The path to safe and reliable healthcare’ by Leonard and Frankel, which presents a spectrum of behaviours associated with safety incidents, including ‘reckless’, ‘risky’ and purely ‘unintentional’ error. These result in ‘discipline’, participation in teaching others, ‘retraining’ or at the very least involvement in the investigation.

The UK’s Sign up to Safety campaign, which promotes difficult but necessary conversations as a way of exploring safety issues, breaks down personal accountability along just these lines:

The Boysen paper also refers to an (older) NHS algorithm that poses a ‘substitution’ test after medical error; ‘Would another provider put in the same circumstances in the same systems environment make the same error?’

These are all efforts to unpick and define the place of personal accountability. It seems clear that it does exist, but that censure or ‘discipline’ should come late, and only if you make a mistake while not adhering to policies, or worse, are reckless.


What is safe anyway? 

How do we define a safe environment? Addressing factors that permit greater potential for error, such as poor staffing, fatigue and IT functionality are clearly vital, but we are not agreed, yet, on what ‘safe’ looks like. Staffing ratios are a start, but do not necessarily take into account fluctuations in demand, or the effect that one highly complex patient might have on a service. However safe we make the environment, however rigorously we modify the ergonomics to take into account the variables arising from human factors, patients still rely on individual doctors to make the right decisions at the right time. The environment will not protect patients from mis-diagnosis or knowledge gaps; or, in the case of Dr Bawa-Garba, what has been called by some, ‘cognitive failure’.

In recent weeks many NHS workers have been reassured by their trusts that unsafe environments should be called out, and that they are encouraged to speak up. The GMC published a flow chart to help people decide how to raise concerns. Yet we all know that in the immediate term, on a Saturday night when you are two colleagues down because the planned locum fell through and the ward F2 has rung in with the ‘flu, that extra resources are unlikely to arrive. How do we apportion individual accountability here? Is it true that whatever happens on this night, the doctors should not be blamed? Will their errors, should they make them, and however odd they might appear from the outside, be overlooked because they were too pressed? Does personal accountability for under-performance completely evaporate in sub-optimal conditions?


Intrinsic accountability: the map of experience

Although the backlash against Bawa Garba’s (clearly excessive in most peoples’ minds) Gross Negligence Manslaughter judgment has suggested that there is no place for blame when things go wrong in substandard systems, we should remember that even in well-provided Trusts with working computers, risk lurks, ready to strike, and those of us who are standing by when it does so will be asked to explain what happened. Being asked to explain feels like blame. That is because we, as doctors, naturally feel responsible. That is our baseline moral state: responsible, slightly fearful (especially in the early years), anxious to make the correct decision. We feel guilty when things turn out badly. We generate our own sense of accountability, and subsequently we may experience weeks of self-examination. Sometimes, we need to be reassured by older hands that it is not our fault. Otherwise we will burn out in the slow flame of self-doubt and fearfulness.


As I have observed before, there is a place for this sense of blame. It sharpens the senses and opens the psyche to deeper lessons. The mistakes for which we accept a degree of responsibility leave indelible marks, which over a career coalesce to form a map of hard-won experience, the better to help us navigate the tricky situations to come. A well-known consultant in my field said, on a training day, ‘An expert is someone who has made every silly mistake possible.’; yes, but none of them twice. The same probably goes for Dr Peter Wilmshurt, a cardiologist and well-known whistle-blower who has referred himself to the GMC for a career of errors. This act makes the point; medical careers teem with error. We become good through error. But if we blame our errors wholly on the systems around us, we will not lay down the ink that makes that map. It may be an unpopular view, but I think part of being a doctor is learning how to receive those stinging tattoos.


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Justice and safety: a dialogue on the case of Dr Bawa-Garba


Everyone must have a view. Thousands have expressed theirs. Many have committed to funding an independent legal review. None were there. None heard what the jury heard. Most have read the essentials of the case, and we are worried that if we commit a serious clinical error, we may be ‘hounded’, ‘scapegoated’ or ‘persecuted’, first by the criminal justice system, and then by the GMC. But the GMC says this was no ordinary error. The court found her performance to be ‘truly exceptionally bad’. Yet the system in which she worked was limping, and unable to provide the support a doctor should expect. What would have been a proportionate punishment, if indeed punishment was required?

I present a dialogue between two doctors of differing views. This allows me to present both sides of the case, and also to explore my own ambivalence behind a creative framework. Because my response to this sad case is not straightforward, and it is still consuming my thoughts.

If you are unfamiliar with the case, it will help to read this BMJ article. Also useful is the MPTS (Medical Practitioners Tribunal Service) report [link subsequently taken down] and the transcript of the recent High Court judgment. [On 13.8.18 the Court of Appeal overturned the High Court’s judgement]

Dr A, you will soon realise, is hawkish and unsympathetic to her plight.




Dr A. You know, my first reaction when reading about the errors made that night was – What? Lactate 11, pH 7.0, that’s clearly a sign of extreme physiolgical stress, actually of imminent dying… there can have been no sicker patient in the hospital… how could a doctor go off and do something else for several hours before checking up on the child?

Dr B. At the start she treated the child correctly, that has been accepted. But she had no choice but to ‘go off’. She was running the entire service, carrying the crash bleep, and struggling against a failed IT system. If she’d stayed with one child the other patients would have been neglected.

Dr A. It was busy. We’ve all been there. So when the pressure is on you have to prioritise, and if that results in two equally deserving cases needing simultaneous attention, and you can’t give that attention, you escalate.

Dr B. To the consultant you mean?

Dr A. Yes. He was there, there was a meeting in the afternoon. The blood gas results were read out. He could have been asked to help.

Dr B. But he didn’t offer to see the patient, did he, despite having heard the result?

Dr A. So what? A registrar of that seniority would be expected to ask, and assert themselves if they didn’t get the answer they needed. No consultant would refuse.

Dr B. We don’t know what was said. What does your consultant do – offer proactively to see anyone who sounds sick, or wait to be directed by you?

Dr A. A mixture, it depends who it is, keen, passive… they vary.

Dr B. But you insist she was the prime coordinator, the clinical leader in that situation, the one who should have coped. It was all on her?

Dr A. She was the one with the first-hand knowledge of the patient. So yes. I am critical. The enalapril – again, it sounds like a lack of asserting her impression on the plan, i.e. she should have said, don’t give that drug, whatever happens. And the DNACPR error, that seems to belie a mind sinking in the tide of events…

Dr B. So you accept that events, the environment, the circumstances, were also a factor.

Dr A. Yes, of course. We all work in similar circumstances, we always have done. And we cope, or recognise that we are sinking and ask for help.

Dr B. You really are a hawk on this. Do you feel sorry for her?

Dr A. Yes, but this is beyond emotion. This is about safety. And, based on what I have read, there was justification in the gross negligence manslaughter judgement. Moreover, I don’t see how the GMC had any choice but to press the point by overturning the MPTS who, the High Court judge feels, over-reached themselves in downgrading her culpability. You can’t have doctors guilty of gross negligence running acute paediatric services… surely. The GMC are, if you like, accommodating a decision made by a higher power in the land, a jury. It doesn’t matter if a tribunal panel feels it was over-harsh, given the extenuating circumstances, to take away her career and livelihood forever. The GMC have to cut the regulatory cloth to fit the ‘criminal’ form, i.e. strike her off.

Dr B. But the MPTS saw evidence of remediation. She was employed for two years after the incident, seeing children every single day. Clearly, she was not unsafe. She had learned, improved. Isn’t our training all about learning from the mistakes we have made to become better doctors?

Dr A. There is a limit. And by year 6 of specialty training, most of the basic lessons should have been learned. Look at it through the prism of public confidence, which I suppose is what the GMC must do. If she goes back to work, even under supervision, will a parent be told that the doctor on call who is coming to see their child was, in the last few years, found guilty of gross negligence? Wouldn’t you want to know, if it was your child? Or do you have sufficient faith that remediation, and training, are good enough to ensure that those traits that led to a guilty verdict have been abolished for good? The high court said it couldn’t be sure that she wouldn’t suffer another ‘collapse’ in performance one day. I agree. It happened once…

Dr B. But look at any hospital. There is a spectrum of competence. There has to be, because there is human variability. And I do not expect to be made aware of the competence level of each doctor I see. I must have faith, in the training system, in the deaneries and in the Trusts – actually, in the GMC, that each of them is safe. If the MPTS felt that she was safe, and had remediated, why not believe them? Why look simplistically at the jury’s verdict and use that as a permanent, inerasable, measure of performance, one that was made without some pertinent facts.

Dr A. So you wish to re-try the case, in your own head. You would overturn the jury’s decision?

Dr B. Yes. I believe it was unjust.

Dr A. You know better?

Dr B. Perhaps.

Dr A. Naïve. That is not how justice works in this country. The jury has the final word. I’m sorry. You can’t second guess it.

Dr B. Juries have been wrong.

Dr A. Yes, when miscarriages of justice have occurred. But that is not the case here. The High Court examined the question of what the jury were told, and found no problem with it. There has been no miscarriage of justice. No-one is saying that.

Dr B. Yet… it is unjust.

Dr A. Once the ball of justice began to roll, once it became a police matter, there was no going back.

Dr B. So perhaps the thing that should have been done differently would be for her not to have been arrested and tried. Perhaps the very concept of gross negligence manslaughter is wrong. Where there is no will to cause harm, only failure to do well (whatever the circumstances), perhaps we should not involve the courts.

Dr A. But a child died, possibly needlessly, definitely earlier than he should have. How can that not arrive at the door of Justice?

Dr B. Avoidable deaths are all around us. We see them, we discuss them, we learn from them, every week and month. Avoidable deaths are grist of the mill of patient safety. I saw an estimate that there are 9000 per year attributable to poor care in hospitals. We must accept that avoidable deaths will occur, not pounce on them and send each to Law. This is the problem, don’t you see? This is the harm. By raising the fear of recrimination and sanction in the minds of doctors, those weaknesses in our systems, all those near-misses or harms that could signal a fatal accident to come, will go unexamined. Who, having been involved in a clinical incident that caused any meaningful harm, or even death, will now put up their hands to attract attention and bring on a good investigation? Fewer, now. Because if the patient or the family decide to pursue the individual, and by degrees the incident moves into the view of the Crown Prosecution Service, then they could end up losing everything. That is the harm here. The future of patient safety.

Dr A. You ask too much of the GMC and the courts. I would rather base decisions on the definite past than the possible future. It happened. The worst thing that can happen to a patient, neglect, incompetence, happened. On that day she was ‘truly, exceptionally bad’ – did you read the judgement? There are very few people who disagree with that assessment. The MPTS also accepted that there was gross underperformance, as far as I understand. A boy died, despite having signs and clinical features that anyone, paediatrician or not, would have recognised as deserving of the closest attention, and escalation, and absolute prioritisation. There is more to this than her career, and her ability to improve. There is a wrong, of such magnitude that time cannot just be allowed to roll on, allowing her to resume her career.

Dr B. I am surprised. You really have no sympathy, no sense of professional camaraderie?

Dr A. It’s irrelevant. And dangerous. Camaraderie is also called ‘closing ranks’. Just because we belong to the same professional group does not mean that I should automatically support her in this. I know there are bad doctors out there, I’ve worked with them. A line has to be drawn. Look… her qualities have been examined to the utmost, by intelligent people from all walks of life, and mitigating circumstances have been examined, and despite this, her fitness to be a doctor has been found lacking in the High Court. What more can you ask for?

Dr B. Perhaps, one day, you also will find yourself sinking in events, off your A-game, unable to make good decisions, unsupported by a passive consultant… wouldn’t you expect sympathy from your colleagues?

Dr A. I would expect a fair process.

Dr B. And you think the process has been fair here?

Dr A. Harsh, yes… but fair.



Note: today (30.1.18) the GMC has undertaken to examine the role of Gross Negligence Manslaughter cases, ‘ in situations where the risk of death is a constant and in the context of systemic pressure. That work will include a renewed focus on reflection and provision of support for doctors in raising concerns’.



A few excerpts:

The MPTS, quoting a previous tribunal in which a doctor found guilty of gross negligence manslaughter was NOT struck off – “The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment.”

MR JUSTICE OUSELEY, in the high court –However […] the Tribunal (MPTS) did not respect the verdict of the jury as it should have. In fact, it reached its own and less severe view of the degree of Dr. Bawa-Garba’s personal culpability. It did so as a result of considering the systemic failings or failings of others and personal mitigation which had already been considered by the jury; and then came to its own, albeit unstated, view that she was less culpable than the verdict of the jury established.’

MR JUSTICE OUSELEY, on systemic failings that were not shown to the jury in the original GNM hearing – ‘There were two “systemic” failings not explored at trial which Mr Hare acknowledged, but we accept his submission that Dr. Bawa-Garba was convicted notwithstanding the difficulties to which they gave rise, and that they could not have affected the verdict.’

MR JUSTICE OUSELEY – ‘Dr. Bawa-Garba, before and after the tragic events, was a competent, above average doctor. The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance. There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.’

LORD JUSTICE GROSS (sitting with Ousely in the High Court) – ‘Like Ouseley J, I reach this conclusion with sadness but no real hesitation.’

Systems and sense



The controversy surrounding paediatrician Dr Hadiza Bawa-Garba has got me thinking about the relationship between individuals and systems in healthcare. In this case, it has been suggested that system failures, including under-staffing, contributed to a young patient’s death. So important do those factors appear, many feel she should be allowed to continue practising despite a prior manslaughter judgment against her. How do we decide how much blame resides with an individual doctor, and how much can be attributed to the sub-optimal system? I do not know the answer, but it is a question worth exploring.

I cannot recall a single avoidable death where the ‘system’ (i.e. processes, ways of working in the hospital) was not at some level criticised. This is because I have yet to work in a hospital where safety-netting systems were perfect. From slow or inconsistent IT, to lost correspondence, inadequate hand-over arrangements or over-stretched teams… there is always something in the background that appears to diminish an individual doctor’s ability to make the right diagnosis, or initiate the right treatment, in an acceptable timeframe. That’s why it is rare for investigations into avoidable deaths to conclude that a single person’s act of commission or omission was to blame. Blame, of course, is a word we avoid, though as I explored in a previous article, a sense of personal culpability may be important as a driver of self-improvement.

Thinking back to formative errors I made in my own training, I recall an incident of gentamicin induced renal failure. I prescribed it on a Friday, handed over the job of checking the levels (it is toxic if it builds up in the bloodstream), and went off for the weekend. The patient was given it as prescribed (this was back in the day when dosing was written up regularly, but with the caveat ‘check trough levels first’). But no levels were checked. Her renal function deteriorated, and she ended up on dialysis for a while. Disaster.

The system did not help me. There was no gentamicin prescribing protocol; no system of flagging abnormal kidney results to doctors on call; the handover book was a scrawl – so many ways in which better systems could have helped prevent harm. Yet, that was the environment in which I worked. It was my handwriting on the chart that damaged her kidneys. I learned that if a result is important, you need to chase it, and if something needs doing when you’ve gone home, you have find out who is supposed to do it and make sure they are completely aware. You can’t be passive; you can’t leave it to the system.

Take this example, from a Human Factors in Healthcare document. I have underlined the areas where it was felt the system let the patient down, and put into bold those where an individual made an error.


A child with a known penicillin allergy was prescribed and administered an intravenous dose of an antibiotic of the penicillin class’

A child was due to have a pacemaker fitted. On pre-admission an allergy to penicillin was recorded. This was noted on both the nursing admission assessment form and the anaesthetic record chart. Prior to operation, the allergy was discussed with the specialist paediatric cardiology registrar, the consultant paediatric anaesthetist, anaesthetic specialist registrar and the cardiology consultant. However, following the procedure the patient’s plan included intravenous and oral penicillin.

How did this happen?

  • Intravenous penicillin is the usual antibiotic used following a pacemaker being fitted. There was no up-to-date protocol on what other antibiotics should be used if a paediatric cardiac patient has a penicillin allergy, which initially caused confusion;
  • There was no clear record of the allergy in the medical notes when the Consultant Cardiologist advised treatment;
  • No system was in place to prevent penicillin prescription when a known allergy was recorded.
  • A number of appropriate checks were not followed prior to administration of the antibiotics.
  • During independent checks, neither nurse checked allergy status, and both were under pressure to complete tasks. The patient’s allergy band was on the same side as their identity band, both of which were covered with a bandage for an intravenous drip.


Imagine the child had received penicillin and died from anaphylaxis. Would it seem reasonable for any of the individuals involved in the actions highlighted in bold to have been blamed, censured, or worse, accused of manslaughter?

The cardiologist put penicillin in the post-op plan, despite having been told about the allergy. Neither nurse checked for allergy, not thinking to peel back the obscuring bandage. Somebody put the bandage on without moving the allergy bans. All were at fault. But, an electronic prescribing package that automatically pulled the allergy from the patient’s record and blocked any doctor from writing up a penicillin-related compound would have rescued the situation. Can the absence of such a system be blamed for an error that results in death? Would its lack be used, in court let us say, to extenuate the error medical staff? Or should staff be judged in the context of the environment in which they find themselves?

At what point does responsibility for errors cease to be attributable to systems, and start to accumulate around individuals? There is no visible line or threshold. Regulators and courts must determine what was reasonable in the circumstances, and if a doctor meets minimum acceptable standards within Good Medical Practise. For the trainee, it is important to understand that all systems are imperfect, and to develop a sense for when to drive management forward, well before the backstops provided by the ‘system’ throw up a red flag.




What explanation can there be for a surgeon to write his initials on a patient’s liver? It sounds bizarre and disrespectful. This almost surreal, alleged event is sub judice, and I know nothing of the people involved or any details beyond what was in the papers, but perhaps it exposes some interesting psychology.

In the medical specialties that require practical skill, especially surgery, you work hard to become expert. Over the years the movements of the hands and fingers become practised and slick. Operations that appear impossible to the lay-person or junior trainee become routine, yet each patient is different. Each procedure presents its own challenges, hiccups, sudden recalibrations and extempore solutions. At the end of a particularly difficult case, when the patient appears stable and safe, you might sigh with relief, but also experience a surge of pride on a job well done. Congratulations are hard to come by in medicine. The job well done should be the norm, after all. But looking down at the organ, structure, or vessel that now pulses healthily as a result of your dexterity, you might be forgiven for thinking – ‘I did that!’

To mark a job well done with your initials is appropriate in other walks of life – in art and sculpture, in literature, in architecture. The artist owns the piece. A part of them, their skill, their creativity, their experience, lives within its lines.

Can medical procedures be regarded as art? Yes, I would say. The long facial reconstruction, the painstakingly re-joined finger, the delicately implanted heart valve… in the fine skill and seamless results it is easy to identify the hallmarks of the inspired artisan, the committed artist. Perhaps it is understandable that a surgeon who comes to see the results of their skill as art feels the urge to sign it.

However, it is a living body that we are talking about here. What lies under the skin is sovereign to the patient. They will carry it around with them for the rest of their lives. They were born with it. It is wholly theirs. (In the case of a transplanted liver of course, it belonged to another. The act of altruism and donation makes it worthy of even greater respect.) Perhaps that is the line that may have been crossed here – the distinction between what a surgeon can claim to ‘own’, and what is and will forever be sacred to patient.

When death is not the end


This week’s report about a nurse being disciplined for failing to ‘revive’ a clearly deceased nursing home resident, has caused consternation. According to the description given, the woman was ‘yellow, waxy, almost cold’. But a rule mandated that the nurse on duty should commence basic life support and call an ambulance. For her to be punished seems perverse*.

The big fail here is not so much the rule (which is to maximise safety and ensure that no opportunities are lost to reverse acute deterioration), but the fact that the woman did not have a community DNACPR order. Such an oversight could be written about at length, and the difficulties doctors, families and patients have discussing the subject have been explored on this blog.

The other problem this case reveals is our general confusion about the transition between life and death. There is a phase in dying, perhaps fifteen minutes (longer if hypothermic – I am happy to be corrected) where vigorous efforts to restart the heart might result in more life and acceptable cerebral function. For this to happen, the heart and other organs need to be in reasonable condition. If death was sudden, re-opening a coronary artery might be all that is required. But if the patient had been ailing for a year, or succumbed to a spreading cancer, nothing will work.

So, when a nurse or a member of the public comes across a seemingly dead person, what tells them whether it is right to start basic life support, or respectfully cover their face? If the situation is at all unclear, it seems there is only one defensible answer – try to resuscitate.

When I did Advanced Cardiac Life Support training years ago I was fascinated (and disgusted) by a paragraph in the manual that described situations where resuscitation was clearly inappropriate. These included decapitation and separation of the body into two halves (sorry to make you queasy, that’s what it said; I’m not sure if the current version still includes this). It may have mentioned rigor mortis. But it did not talk about the ‘waxy’ or ‘almost cold’ person.

Faced with such ambiguity, people are quick to refer back to earlier times, when community doctors or wise neighbours were called to see people in their homes, whereupon they calmly observed that the patient had died and that there was nothing more to be done. Now, such acceptance can only occur if, prior to death, there has been a series of clear discussions and agreements (all documented) regarding resuscitation, transfer to hospital, or escalation of care.

This has come about because modern medical techniques can do much to delay death. The burden of heroic interventions has to be considered of course, hence the need to think about such things before they happen. However, the medical reflex is to treat and save. The reflex applies to all people by default, even those who appear too frail to benefit. Thus, the nursing home has a ‘reflex’ that patients found unconscious and without a pulse should be rushed to hospital unless there is a DNACPR order in place.

This evolution in our ability to preserve life has diminished the validity of the experienced nurse’s, or lay-person’s, impression. He or she is no longer trusted to recognise established death. In the case reported this week, the diagnosis of death was, presumably, only valid if made by paramedics, or by the A&E doctors who might have received her (intubated, cannulated, perhaps with intraosseous access lines protruding from both shins).

There is an argument that only those who have been trained to certify death should be allowed to bear the responsibility, and it is interesting to note that the nurse in this report has subsequently received such training. However, a part of me wonders how it is that death, which has been part of our experience since homo sapiens began spread across the globe, is still such a mystery that one needs to go on a course to recognise it.

Most ward nurses, or trainee doctors who have led a crash team, will have been in a similar situation. From a doctor’s point of view – the crash call goes out, you run to the ward, and observe nursing colleagues performing basic life support. Collateral information soon paints a fuller picture – the patient was last seen alive four hours ago; they were ‘stone cold’ when the nurse came to routine observations at 6AM; clearly, the patient died peacefully in their sleep. But, in the absence of a DNACPR order, a crash call had to go out. As the medical registrar you must now decide whether to call the resuscitation attempt off immediately, or continue for a few minutes just to make sure that there is no return of spontaneous circulation (a heartbeat and a pulse). Most doctors in this situation continue until they are sure the patient is truly dead, as they will not have known the patient and do not feel confident in stopping the attempt immediately. Some of the reasoning here is defensive. You could be criticised for saying ‘stop’ without having gone through the algorithm.

It seems to me that there is still a place for the healthcare worker’s common sense opinion, especially if they know the patient – ‘She has died, let’s ring the next of kin… no, don’t call the ambulance, don’t start compressions. They have died.’

Recent BMA/resuscitation council guidelines do, to some extent, take such ‘common sense’ into account –

…there will be cases where healthcare professionals discover patients with features of irreversible death – for example, rigor mortis. In such circumstances, any healthcare professional who makes a carefully considered decision not to start CPR should be supported by their senior colleagues, employers and professional bodies’. [see previous post on this here]

Despite this, and even with the support of medical colleagues, while nurses feel vulnerable to censure, only those with great confidence will risk not calling the crash team when they find a dead patient.


* We have very few details, so the arguments and conclusions drawn from the case here are generalised






Observations on the Emergency Care and Treatment Plan

The Emergency Care & Treatment Plan, developed by the Resuscitation Council, is out for public consultation. It is hoped that going through this with patients or their representatives will lead to fuller discussions and earlier decisions regarding levels of care and resuscitation.


Speaking as a clinician, it is a welcome development. It marries two strands of decision making that have too frequently been separated – escalation and resuscitation. For patients at risk of deterioration the headline decision has always been about CPR, because there is a ‘form for that’ (I am not being facetious), it is a binary process (For CPR or Not For CPR) and the harms of inappropriate resuscitation are very visible. Escalation is a more nuanced issue, harder to explain to patients and harder for medical trainees, and sometimes consultants, to get their heads round. It is often neglected until the patient has begun to deteriorate, at which point a flurry of activity is triggered. Families are called in for rushed discussions, intensive care teams summoned to give their opinion about the appropriateness of organ support, consultants in charge are phoned in clinic to make a final decision… and the patient is often too ill to be involved at all. To have these eventualities anticipated would be so helpful, but because no one really knows what is going to happen in the future, or what treatments might be needed, making specific plans is a major challenge.

The ‘easy’ scenario contains the alert patient with acute illness that is not life-threatening in the very short term. There is time to explore their wishes, anticipate possible deterioration and judge potential interventions against their likely benefits and burdens. The more vexing situation involves the acutely ill, frail and elderly patient with temporary or permanent cognitive impairment. They may or may not be accompanied by a close relative or other representative. The atmosphere may be hectic and distressed. Often, despite the patient’s extreme age or clear frailty, the possibility of dying will not have been considered or discussed at home. How to approach the proposed ECTP form?

The form has three boxes which signify the patient’s preferred approach to management. Based on a combination of the patient’s medical condition, prognosis and spoken or reported wishes/goals, it is necessary to choose one of them.


There is a great deal of overlap. Even if the ‘priority is to get better’ (Box 1), a parallel priority of equal importance is ‘comfort’. I would want both, personally. It is interesting how these boxes reveal the fact, not necessarily understood by patients, that medical interventions can come at a price – discomfort or distress. Prolonged dependence on say, a ventilator, is of course appropriate if you are a 35-year old with severe pneumonia, but not if you are 94 with advanced fibrotic lung disease. So who will go for box 1? The young, the middle aged, the previously well… the minority of our admissions. In fact many in this category would not require a ECTP, because it is so obvious that all available interventions should be considered.

And box 3, at the other end of the spectrum? This will be for patients with clear life-limiting conditions, some of whom will have anticipated dying (eg. metastatic cancer not responding to therapy, or advanced cardio-respiratory disease), and some of whom will voice their desire to be kept comfortable and not be interfered with. For the doctor and patient to choose box 3 will require a degree of surety, for it leads to a palliative approach. It signals to other medical teams that medical care should not be escalated. Such surety is quite rare, and box 3, like box 1, will probably account for a minority of patients.

So Box 2 is for the majority. It emphasises both efficacy and comfort. By initialling Box 2 the doctor and the patient will need to think about what treatments to include and exclude. How do you work out what treatments would and would not be wanted? There are many treatments, and for patients they are hard to visualise.

The major, relevant categories that come to my mind are: mechanical ventilation, dialysis/haemofiltration, central line insertion, non-invasive (mask) ventilation, feeding tube insertion, intravenous fluids, intravenous antibiotics… there are many more. It is the doctor’s job, in completing this form, to decide what is relevant to the situation, what should and should not be explored, and to advise on what should and should not be done. All this is in a humane way that does not force the patient to visualise themselves in various situations, or reflecting overmuch on their possible death (which is just not kind after a while).

Doctors develop and use acronyms and stock phrases on the forms that they use. It is not lazy, more a tendency to encapsulate complex concepts in an easy to replicate manner. I think it is unlikely that doctors will list specific treatments exhaustively under box 2. Much more likely they will use catch-all terms like ‘not for escalation to ICU’ or ‘not for artificial hydration and nutrition (ANH)’. Specific positives, like ‘for trial of mask ventilation’ or ‘consider trial of circulatory support’ are a possibility.

Such written indications, if understood and agreed to by patients or families, will be very helpful to on-call medical teams and are the great potential benefit of the ECTP. But to achieve this aim requires considerable skill and experience on the part of doctors. These conversations, which I agree are to be welcomed and necessary, will be long, delicate, and complex. Doctors will need to help to develop effective but sensitive techniques to facilitate and lead the discussions. It will take time, serious time. But if it can be done, I think it will bring about the engagement and shared decision making that has often been missed due to the unanticipated and uncontrolled deterioration that will always occur in hospitals.


A public survey on the ECTP is open until 29th February

I recommend Dr Laura-Jane Smith’s constructive blog post on this subject; if any of my comments overlap with hers I apologise!


Thoughts of a Lord on the eve of a debate

— Announcement —

Welcome to the blog. Here you will find 100 posts exploring aspects of medicine that have preoccupied or challenged me during training and the first 3 or 4 years as a consultant.

I began to write in August 2012, and managed, against expectation, to produce one post a week for two years. I am now giving it a rest, although I’m sure I will come back to the blog when an observation, scandal or ethical dilemma grabs my attention.

I have collected and published these posts in three volumes, the most recent of which is ‘A Face to Meet the Faces’.

Thank-you for your support. I’ll announce any new posts via Twitter as usual.



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thoughts of a lord

Forgive the impersonation.

– – –

I’m not a true expert on assisted dying, but have become something of one with all the petitions, emails, personal representations and evidence summaries (collated by my excellent assistant). Recognising that care and compassion are abundant on both sides of the argument, I began to focus on the objective. Harrowing and personal stories are persuasive, and cannot be dismissed, but it is my duty to look up from individual tragedies and forward to the future where harms may arise. But what harms?


I am persuaded that there has been creep in the most liberal nations, where euthanasia is practised. I am persuaded that life may have become a little cheaper, and, dare I say it, a little less sacred in those places. But Falconer’s Bill isn’t about euthanasia, it is about patients taking fatal doses at the time of their own choosing. Doctors will do nothing more than facilitate the getting of the drugs, and sometimes the administration. Am I being naive here?


Can I be sure that the system will protect those who might not have requested AD if were not for the vulnerability of their position or the nudges and comments initiated by relatives, carers or unscrupulous others? Will there be a risk of subtle coercion over many weeks or months that ultimately drives a patient to request AD? I am not persuaded of that. A doctor involved in the assessment should question hard a patient, or a family unit, when a request seems to come out of the blue or appears inconsistent with prior impressions. Can I be sure that not one single such instance will occur? I cannot. There are no certainties in law, medicine or human behaviour.


And what of those doctors? They will be involved early on, when assessing a patient’s ‘settled intention to end his or her own life’, and when looking around the patient to ensure that there has been no familial coercion. Can we trust them? They are not perfect. Some are downright poor. But I do not see poor doctors leading to a lack of safety here; more likely, the poor doctor would fail to allow a patient the opportunity to discuss AD at all.


Will patients feel ‘guilted’ into choosing AD? I know of no evidence that they have done elsewhere, although I did read something to suggest that depressed patients are more likely to choose it. Depression, they say, is treatable. I might counter that depression is not surprising, and is not likely to be reversed in this context. I don’t mind that part of a patient’s motivation might be the fear of becoming or continuing to be a burden…that is part of the personal burden of illness, in my view. But the drive to have an assisted death has to come from the patient.


I seem to be talking myself out a Yes vote.


But wait. We must move forward. The supreme court has told us as much – admittedly in relation a different group of patients, those without terminal illness who actually require the physical assistance of a doctor or carer to do the deed. Nevertheless, we cannot stay where we are. The line, which has hitherto stopped doctors facilitating death in any circumstances, must be crossed at some point. If not this year then next, or the year after that. That much is clear to me. I am not comfortable with it, I would expect no-one to be comfortable with it, but to resist the move to patients being assisted in the organisation of their own life and death seems over-dogmatic to me.


Unencumbered by religious faith, I do not have to factor in the intentions or opinions of a overseeing creator. I feel for those of my colleagues who do, but am interested by the intervention of a retired archbishop. The ranks of the religious are by no means aligned. I am far more alarmed by the ranks of palliative care specialists. These doctors have dedicated their professional lives to the care of the dying, and their opinion must be respected. I don’t know any who support AD. Perhaps some do but are nervous about being seen to support something that seems contrary to the prime purpose of providing comfort and quality in life. But I am a little frustrated too, because I don’t see why palliative care cannot segue into AD if comfort cannot be provided. Why should a patient lose the option of AD just because they submitted themselves to the care of a group of doctors who are strongly opposed? I do not like the thought that a patient in a hospice might be barred from seeking AD, or might have be discharged in order to pursue the option away from the disapproving eyes of his or her palliative care team.


So it seems I’m in favour after all. But I will listen to the arguments, even though I have probably heard them before. There will be emotion, which must be allowed to touch one, but I will try to maintain the objectivity of the law maker. There will be thinly disguised religious motivation, which I must try to respect because I respect the people who are speaking. And there will be reassurances, that the slippery slope is illusory and the safeguards are adequate. I will vote in favour…but, on the threshold, I cannot guarantee that something will not hold me back. A sudden chill that I am belittling the value of existence and shattering the previously inviolate principle that human life should not be taken. I cannot guarantee that as I act to vote in favour, glimpses of other lives, wasted due to mankind’s failure to recognise life’s value – in battle, in innocent planes over war zones, on Middle Eastern beaches – will hold me fast and change my intention. I just can’t say. A vote like this is, for all the evidence one hears, is an instinctive affair.

– – –

New collection. click to explore ebook

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Notes on a judgment

notes on a judgement2


The judgment given in the case of Janet Tracey’s estate vs Cambridge University Hospital NHS Foundation Trust* contains lessons and warnings for doctors and nurses. There are fundamental implications, and there are subtle insights into how we go about discussing DNACPR decisions.

The judge wrote, in conclusion:

I would, therefore, grant a declaration against the Trust that it violated Mrs Tracey’sarticle 8 right to respect for private life in failing to involve her in the process which led to the first notice [the first DNACPR form]. 

The following should be read on the understanding that i) I am not a human rights lawyer, and ii) I was not there, so the comments that I make on the communication that took place between doctors and patient/family are based only on what is written in the judgment. However, any messages or misunderstandings that I take away from the judgment as a physician with a general interest in resuscitation are likely to be repeated across the country. Also, the specifics of this case were in many ways atypical, and in thinking about what this judgment means for the rest of us, I have considered more common clinical scenarios – where patients are usually older, and perhaps on a more rapidly deteriorating path.


A mandatory discussion

The principle has now been established that not being given adequate opportunity to discuss your resuscitation status is an infringement on your ‘right to privacy’, that is, the right to lead your life how you choose without undue interference from the state. This is Article 8 of the European Convention on Human Rights. Thus the manner of dying becomes a subject of discussion that patients must be engaged in (unless it can be shown, clearly, that to do so would cause harm – see below). It sounds perfectly reasonable, and such engagement is already best practise. Respect for autonomy demands it, and few doctors complete DNACPR forms without trying their best to seek the patient’s view.


But there are exceptions, and this judgment appears to belittle a doctor’s right to use their discretion in extreme circumstances. It makes mandatory a discussion that in many cases is not relevant to the patient – that is, the option of trying to bring them back to life after they have died.


Patients with end stage disease admitted to hospital with a deterioration are often identified as entering the terminal phase. They will die naturally, and with good palliation they will die comfortably and with dignity. Cardiopulmonary resuscitation (CPR) has no place in this paradigm of care. It is never going to be effective, helpful or kind. But CPR is there, it is ‘available’, and the judgment seems to have made it illegal not to discuss its merits with all such patients (and/or relatives in the case of mental incapacity).


My assertion that CPR is often an irrelevant option may sound paternalistic. This requires examination, because there appears to be a discrepancy between how important doctors feel CPR is, and how important patients or families feel CPR is.


The diminishment of a symbol

Experienced hospital doctors will have seen scores of patients fail to recover from CPR, and will have witnessed many CPR attempts that are cut short after a minute or two once the insanity of the situation becomes clear. To many doctors CPR has become an unwelcome and frequently harmful intrusion on the natural deaths of frail or end-stage patients who receive it ‘by default’ – because their teams did not discuss it openly before the cardiac arrest occurred. All patients who die in hospital will be subjected to CPR unless a DNACPR decision has been made first. Thus the accumulation of many such regrettable experiences leads to an overall impression that CPR is over-used. Its apparently transformative potential – to bring people back to life – is diminished.


However, for patients and families CPR means something else. It is the very last hope of salvage when the patient’s medical condition has deteriorated. It can be symbolic of a person’s ‘will to live’ or their ‘fight for life’. It cannot be dismissed as an irrelevance, even if it will surely not work. This, I think, is what the judgment reveals and concretizes into legal precedent – CPR, for all its fallibility, is too important to patients and families not to be made aware of its existence and its withholding.


Most in the medical profession know this already and accept it, but my concern is that in those circumstances when it is truly inappropriate there will be anxiety on the part of the doctors that DNACPR has not yet been discussed with the patient or the family. I worry that in such cases CPR will be given to avoid the accusation, after the event, that the patient’s human rights were overlooked. The doctor’s instinct, and all their experience in such situations, may be overridden by a defensive mindset.

I will now look at some specific lessons contained in the judgment.


Documentation of the discussion

Janet Tracey did not want to talk about her end of life care, according to the doctor who wrote the first DNACPR order. He is quoted as saying,

“Mrs Tracey did not wish to engage in discussion relating to her care and prognosis. On occasions when I attempted to initiate discussions with Mrs Tracey regarding her treatment and her future she did not want to discuss these issues with me.”

This impression is backed up by the patient’s husband who indicated that,

‘Mrs Tracey felt “badgered” by the attempts of the doctors to discuss her end of life treatment with her.’

Ultimately however, the doctor did achieve some sort of interaction with the patient. In the judge’s words,

‘It was Dr ______’s evidence that he broached the issue of DNACPR with Mrs Tracey, explained what it meant and that she nodded to indicate her agreement to it. He then completed the first notice.’

She nodded. This was sufficient, in the eyes of the doctor, to be taken as agreement. However, the judge is concerned that,

‘If Dr ______ had such a conversation, it would have been of importance to note the same both on the DNACPR Notice and in the medical records. I am unable to accept that the absence of such a note is a result of no more than poor record keeping.’


‘There is nothing in the medical/nursing records which suggests any agreement to DNACPR by Mrs Tracey. The tenor of entries prior to 4 March 2011 indicate that Mrs Tracey either did not agree or requested that any such discussion take place in the presence of her husband or daughters.’


‘In the absence of any documentation and in the light of what is known about Mrs Tracey’s view on the issue of resuscitation around the time of the first Notice, I am unable to accept Dr ______’s evidence that he spoke to Mrs Tracey about resuscitation prior to the implementation of the first DNACPR Notice.’


The judge does not believe that a DNACPR discussion  took place. There was nothing to back it up.


Distress vs harm

The average doctor’s defence for not discussing DNACPR in a situation where it is plainly inappropriate to resuscitate, is that it would be positively unkind to bring it up with the dying patient. To steer the conversation towards a procedure after death that cannot work seems perverse…and may cause distress. This case hinged around the issue of distress, or a doctor’s fear that to discuss DNACPR explicitly would cause distress.

We have seen how Janet Tracey appeared unwilling to engage in discussions about death. It is reasonable, in my opinion, to assume that forcing her to talk about it would have caused distressed. In light of the concern that to insist on a discussion would be unkind, the judge accepts that,

‘It may well be that such a concern also caused him to spare her a conversation which he knew was likely to cause distress to a suffering patient.’

But the judge does not feel that ‘distress’ is sufficient reason not to insist on that discussion. Hence,

‘In my view, doctors should be wary of being too ready to exclude patients from the process on the grounds that their involvement is likely to distress them.’


‘Many patients may find it distressing to discuss the question whether CPR should be withheld from them in the event of a cardio-respiratory arrest. If however the clinician forms the view that the patient will not suffer harm if she is consulted, the fact that she may find the topic distressing is unlikely to make it inappropriate to involve her.’

Only if we feel that the discussion will truly cause harm does there appear to be an exemption;

‘There can be little doubt that it is inappropriate (and therefore not a requirement of Article 8 to involve the patient in the process if the clinician considers that to do so is likely to cause her to suffer physical or psychological harm.’


In these cases we will need to be very clear, in the notes, as to our reasoning that harm may occur. I am not sure how we as doctors will articulate that reasoning. When does distress become harm? Isn’t any distress harmful, in the context of the dying phase? Or should we accept that dying is distressing anyway, and a little extra distress is a small price to pay for obtaining our patients’ full opinion on the matter? We need to come up with an answer to this.


Clarity, brutality

It seems that the doctor failed to be clear with the patient’s family member about what DNACPR actually was. After having a discussion about it with a doctor she left the hospital, but then looked up what the decision meant in more detail, on the internet. Having realised that her mother actually being deprived of a potentially life-saving intervention she came back to the team with a challenge, and the order was rescinded.

The judge writes,

‘…whether in a wish to spare her the harshness of a graphic explanation of CPR or a belief that in using words such as ‘slip away’ he was conveying the entirety of such a scenario, I believe that the entirety of the position was not fully understood by ______”

This rings true. It is very easy not to go into great detail, and there are several reasons for this. Primarily, I believe, doctors who have already made the medical decision that CPR is not appropriate are unwilling to describe its ins and outs because to do so is, once again, irrelevant. It distracts from the subject of most importance, how to manage symptoms in life, not what to do after death. If ‘graphic’ descriptions are given, it can begin to feel positively gratuitous. However, one lesson that this judgment provides is that we should make very sure that the relatives of our patients do understand. That may require some unpleasant conversations, and not a little emotional harm. We must learn how to do this well.


An allowance

The judge seems to make some provision for difficult cases. It should be remembered that the focus of this case was a mentally capacitous patient’s apparent unwillingness to be involved in discussions, and the doctors perception that to engage her in the discussion would be psychologically harmful – the judge was not convinced about this, and did not find written evidence in the notes to support the doctor’s case. The judge writes,

‘I recognise that these are difficult issues which require clinicians to make sensitive decisions sometimes in very stressful circumstances. I would add that the court should be very slow to find that such decisions, if conscientiously taken, violate a patient’s rights under article 8 of the Convention.’


The obverse

Finally, this judgment can be read the other way round. Having established that talking about one’s treatment after cardiac arrest is important enough to require legal protection, we must consider the situation where CPR is performed when the patient would not have wanted it.  The legal principle of anticipatory discussion applies bith ways, as highlighted in a Resuscitation Council statement released shortly after the judgment. Basically, it is as irresponsible to permit, through failure to discuss,  inappropriate CPR as it is to withhold it. They write,

‘The RC (UK) considers that Article 8 may be engaged and potentially breached also should a clinician not consider an anticipatory decision about CPR with or for a patient who is at clear risk of dying or suffering cardiorespiratory arrest. Failure to consider a decision about CPR or to ascertain the patient’s wishes in relation to CPR (or the views of those close to the patient without capacity) may leave such a person at risk of receiving CPR that they would not have wished to have and that could have been avoided had the matter been afforded appropriate consideration and discussion.’

The message is – think about CPR early, talk about it bravely but sensitively, and write everything down.





* A case was also brought against the Secretary State for Health, in relation to his possible duty to ensure a standardised DNACPR policy for the NHS. I will not go into that part of the judgment here, although in summary, the appeal court found that there was no obligation on him to impose a centrally designed policy.

notes on a judgment


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