Social work and end-of-life care

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Local authorities inundated with applications for Deprivation of Liberties authorisations after Supreme Court decision

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20140929 Lady HaleI covered the Supreme Court decision on Deprivation of Liberties in the West Cheshire and other cases earlier in the year. Just an update: there is evidence of adult social services teams of an inundation of cases which can only mean that people in residential care and receiving home care are getting their rights better looked after, although it’s clear there are problems. One commentator on the Community Care website argues that this decision enshrines social work values in the law, although possibly many other professions also value respect for autonomy among vulnerable people.

Link to the Supreme Court decision

Link to ‘Community Care’ article.

A good summary of the legal effect of the decision is provided by the Mental Health Law Online website, as follows:

(1) The ‘acid test’ for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person’s compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like P, MIG and MEG, decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty.

The MHLO website also has loads of relevant links to other cases and to commentary:

Link to Mental health Law Online website.

This includes a link to the video of Lady Hale announcing the decision in the Supreme Court, which itself is an admirably clear account of the decision and why it’s important.

Link to Lady Hale video.

Written by Malcolm Payne

6 October 2014 at 11:54 am

Assisted dying: summary of the existing legal position

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Summary of the legal position

I’m continuing with my posts on material drawn from this summer’s Supreme Court judgment on assisted dying. A useful contribution is made by Lord Sumption when at Para 255, gives useful practical guidance and summarises the current legal position, with citations to the cases. Lord Neuberger associates himself with this summary (at Para 137), so it has great credibility and might help us present the argumeents to patients and their families.

This is useful for practitioners who often need to confirm to themselves, and also be able to explain to others, what the position is. It also explains where an advance decision, as part of advance care planning, fits into this.

255. The current position may fairly be summarised as follows:
(1) In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life.
(2) A person who is legally and mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes: Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, 904-905; In re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1; Airedale NHS Trust v Bland [1993] AC 789. A patient (or prospective patient) may express his wishes on these points by an advance decision (or “living will”).
(3) A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give and receive information is guaranteed by article 10 of the Convention. If the law were not as I have summarised it, I have difficulty in seeing how it could comply.
(4) Medical treatment intended to palliate pain and discomfort is not unlawful only because it has the incidental consequence, however foreseeable, of shortening the patient’s life: Airedale NHS Trust v Bland [1993] AC 789, 867D (Lord Goff), 892 (Lord Mustill), R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, 831H-832A (Lord Steyn).

In his final point, Lord Sumption also deals with the argument, which we often hear, that this is an increasingly difficult problem, that is becoming hard to handle:

(5)Whatever may be said about the clarity or lack of it in the Director’s published policy, the fact is that prosecutions for encouraging or assisting suicide are rare. Between 1998 and 2011, a total of 215 British citizens appear to have committed suicide with medical assistance at the Dignitas clinic in Switzerland. Not one case has given rise to prosecution. Although cases of assisted suicide or euthanasia are periodically reported to the police (85, we were told, between 1 April 2009 and 1 October 2013) there has been only one recent prosecution for assisting suicide, and that was a particularly serious case.

Written by Malcolm Payne

29 September 2014 at 11:01 am

Professional assistance with suicide is different from help by relatives: Supreme Court commentary

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Is someone who assists a suicide different from the person who chooses to commit suicide? This question is answered comprehensively by Lord Sumption, in the summer Supreme Court judgment on assisted dying, that I am reviewing in this linked series of posts. I looked last time at why assisted suicide is considered a crime.

This is of particular interest to social workers, because it looks at situations where someone may be vulnerable or at risk of abuse, possibly pressurising them into agreeing to suicide because, among other things, they feel themselves to be a burden to their family. Any experienced palliative care social worker ‘s can tell you of examples where the family feels it cannot cope with a dying or sick person’s care and either explicitly want their relative to die, or make them feel that that’s what they think. Indeed, Lond Sumption quotes the British Association of Social Workers (he gets the title wrong), alongside the British Geriatrics Society and Action on Elder Abuse (also getting the title wrong),  as a ‘reputable body of experienced opinion’. I’ve edited this very lengthy section of the judgment, but you can see the main points made:

215. …There are at least three reasons why the moral position of the suicide…is different from that of a third party who helps him to kill himself. In the first place, the moral quality of their decisions is different. A desire to die can only result from an overpowering negative impulse arising from perceived incapacity, failure or pain. This is an extreme state which is unlikely to be shared by the third party who assists. Even if the assister is moved by pure compassion, he inevitably has a greater degree of detachment. This must in particular be true of professionals such as doctors, from whom a high degree of professional objectivity is expected, even in situations of great emotional difficulty. Secondly, whatever right a person may have to put an end to his own life depends on the principle of autonomy, which leaves the disposal of his life to him. The right of a third party to assist cannot depend on that principle. It is essentially based on the mitigating effect of his compassionate motive. Yet not everyone seeking to end his life is equally deserving of compassion. The choice made by a person to kill himself is morally the same whether he does it because he is old or terminally ill, or because he is young and healthy but fed up with life. In both cases his desire to commit suicide may be equally justified by his autonomy. But the choice made by a third party who intervenes to help him is very different. The element of compassion is much stronger in the former category than in the latter. Third, the involvement of a third party raises the problem of the effect on other vulnerable people, which the unaided suicide does not. If it is lawful for a third party to encourage or assist the suicide of a person who has chosen death with a clear head, free of external pressures, the potential arises for him to encourage or assist others who are in a less good position to decide. Again, this is a more significant factor in the case of professionals, such as doctors or carers, who encounter these dilemmas regularly, than it is in the case of, say, family members confronting them for what will probably be the only time in their lives.
225. It is inconclusive factually, for reasons which emerge very clearly from the report of the Commission on Assisted Dying. The only jurisdictions with experience of legalised assisted suicide are certain states of the United States, of which the most important is Oregon, and the Netherlands, Belgium and Switzerland. The data from these sources is contested and acknowledged to be of variable robustness. It is also sensitive to underlying conditions such as standards of education, the existence of long-term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom. Indeed, there may well be significant regional and sociological variations within the United Kingdom. It is plain from the expert evidence reviewed by the Commission that there is a diversity of opinion about the degree of risk involved in relaxing or qualifying the ban on assisted suicide, but not about its existence. The risk exists and no one appears to regard it as insignificant…
226. The concept of “abuse” embraces at least two distinct problems. One is that the boundary between assisted suicide and euthanasia is so porous that in practice it may be crossed too often, sometimes even in cases where there was no true consent. The other is the risk that that if assisted suicide were lawful, some people would be too ready to bring an end to their lives under real or perceived pressure from others.

Lond Sumption goes on to say whether the guidance on whether an assister who is a professional should be prosecuted issued by the Director of Public Prosecutions can be clarified further, which one of the people appealing wanted:

247. [One issue is]… the significance of compassion, which everyone agrees is critical in most of these cases. In the case of a close family member, for example a parent, child or spouse, the compassionate character of his or her motivation will usually be obvious, even if the assister stood to benefit financially by the patient’s death. …What constitutes a purely compassionate motive in the case of an outsider is likely to be much less obvious. At one extreme, the professional who assists the patient to kill himself may be a long-term living in-carer who has formed an emotional bond with the patient not unlike that of his closest relatives. At the opposite end of the range, the professional may have little or no personal acquaintance with the patient, but out of compassion for human suffering in general holds himself out as being ready to assist patients who have freely chosen suicide. Between these extremes there is an infinitely complex range of possibilities. The position of the professional is likely to be affected by his closeness to the patient, the length of his acquaintance with him, the extent of his previous responsibility for the patient’s care, his relations with the patient’s family, his opinions about the legal prohibition of assisted suicide, any relevant rules or guidance of his professional body, any involvement on his part in assisting other patients to commit suicide, whether he is paid for his assistance and if so how much, and many other matters. …It is neither possible nor proper [for the Director of Public Prosecutions] to attempt a precise statement in advance of the facts about when a professional will or will not be prosecuted. Either such a statement will have to be so general and qualified as to be of limited value for predictive purposes, or else it is liable to tie the Director’s hands in a way that would in practice amount to a dispensation from the law.

All of which makes it clear that a professional such as a social worker cannot really seek the same kind of protection from the law as a family member who assists someone to die.

Written by Malcolm Payne

26 September 2014 at 11:32 am

Why is assisted suicide an offence in the UK? And it also is in Europe and the USA

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Why is assisted suicide an office?

In this post, linked to the previous one, I’m continuing to look at some of the things said in the Supreme Court judgement on assisted dying published over the summer.

It is useful to remind ourselves how assisted suicide comes to be an offence. This is explained in the judgement at Paras 15-54. In summary, the Homicide Act 1957 defined the common law offence of murder as the perpetrator killing a person when intending either to kill or to inflict grievous bodily harm. In the judgment, Lord Neuberger says:

16…The offence of voluntary (as opposed to involuntary) manslaughter is, in effect, murder in circumstances where the perpetrator is able to raise certain specified grounds of mitigation, including diminished responsibility and loss of control (all of which are subject to certain requirements). Manslaughter carries a maximum sentence of life imprisonment, and there is no minimum sentence.

17. Mercy killing is a term which means killing another person for motives which appear, at least to the perpetrator, to be well-intentioned, namely for the benefit of that person, very often at that person’s request. Nonetheless, mercy killing involves the perpetrator intentionally killing another person, and therefore, even where that person wished to die, or the killing was purely out of compassion and love, the current state of the law is that the killing will amount to murder or (if one or more of the mitigating circumstances are present) manslaughter – see per Lord Judge CJ in R v Inglis [2011] 1 WLR 1110, para 37. As Lord Browne-Wilkinson said in Airedale NHS Trust v Bland [1993] AC 789, 885, “the doing of a positive act with the intention of ending life is and remains murder”.

In  this judgment, Lord Sumption explains why suicide was once a criminal offence and why it was decriminalised:

211. … Suicide was a common law offence in England until 1961. It was treated as a form of murder. A particular feature of the law of murder, which makes it unusual among offences against the person, is that the consent of the victim is not a defence to a charge of deliberate killing. Suicide, or “self-murder”, was therefore an offence notwithstanding its voluntary character. It followed that an unsuccessful attempt at suicide was criminal, and so was the act of an accessory. The Suicide Act 1961 abolished the rule of law which made suicide an offence, but preserved the criminal liability of accessories. As amended by the Coroners and Justice Act 2009, section 2(1) created a statutory offence committed by any person who does an act which is (a) “capable of encouraging or assisting the suicide or attempted suicide of another person”, and (b) “intended to encourage or assist suicide or an attempt at suicide.”

212. The reason for decriminalising suicide was not that suicide had become morally acceptable. It was that imposing criminal sanctions was inhumane and ineffective. It was inhumane because the old law could be enforced only against those who had tried to kill themselves but failed. The idea of taking these desperate and unhappy individuals from their hospital beds and punishing them for the attempt was as morally repugnant as the act of suicide itself. It was ineffective because assuming that they truly intended to die, criminal sanctions were incapable by definition of deterring them…

Do other countries have similar bans?

Lord Sumption also explains in 212 that research shows that most countries have a prohibition against assisted suicide:

…However, the continuing legal objection to suicide was reflected in the fact that very many countries in which suicide was lawful nevertheless imposed criminal liability on those who advised or assisted it. Research summarised in the judgment of the European Court of Human Rights in Koch v Germany (2013) 56 EHRR 6 at para 26 suggests that of the 42 members states of the Council of Europe for which information was available, 36 imposed criminal liability on any form of assistance to suicide and another two, while not imposing criminal liability on direct assistance in suicide, prohibited the prescribing of drugs in order to facilitate it. In Haas v Switzerland (2011) 53 EHRR 33, at para 55 the Court concluded that “the vast majority of member states seem to attach more weight to the protection of the individual’s life than to his or her right to terminate it.”

Lord Mance, in his judgment, makes a similar point about the US. Most US states do impose a blanket ban, but the evidence that some states dissent suggests that this issue is being reconsidered thoughtfully over time.

Written by Malcolm Payne

25 September 2014 at 12:07 pm

Supreme Court judgment: rights arguments do not justify helping people to die

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Introduction to the Supreme Court judgement

The Supreme Court judgement on assisted dying (heard last December) was published on 25 June 2014, just in time for everyone to go on holiday and forget.

Link to the judgment

It was given by a galaxy of the most important Law Lords, and the main judgement is by the President of the Court himself, it contains many interesting points. However, although there is one overall judgement, expressed at length by the president of the Court, Lord Neuberger, that the Court should not intervene, and the matter be left to Parliament, it contains extensive and complex discussion. I am not competent to cover it all, and to discuss it at length would not be appropriate to a blog, so I have selected several points that I cover in a series of posts over the next few days.

The cases considered

It covers the cases of Paul Lamb and Tony Nicklinson, both of whom have had a lot of press publicity, and an applicant called Martin. It represents the final legal position from UK law on assisted dying until they go to the European Court of Human Rights, or Parliament changes the position.
My Nicklinson was completely paralysed after a stroke in his fifties, and felt his life to be dull and pointless; he wanted to die, but was physically unable to do so without help. Eventually, he starved himself to death. Mr Lamb was virtually in the same position after a car crash in 1990. Martin, in a similar position, wanted to be helped in finding out about Dignitas, the clinic in Switzerland used by many British people to achieve assisted dying, and in travelling to it is he decided to use it. His argument was that the 2010 policy on assisted dying was ‘insufficiently clear’ about the position of health and social care professionals. I have commented on this before, and there are further useful points made in this judgement, so, in my next post I have, I have looked at these points about ‘professional assisters’, which would include social workers.

Link to my previous post on the position of social workers.

Much of the comment on the case has been about people’s ‘right’ to commit suicide based on their autonomy in making decisions about their own bodies. Many people object to the ‘blanket ban’ on assisted suicide, not recognising situations in which many people would regard it as reasonable. In a very comprehensive analysis of the human rights arguments, on this issue, Penney Lewis, in her 2007 book Assisted Dying and Legal Change (Oxford University Press) argues that there are many legal and moral points on both sides, and the disagreement between them is never going to be resolved satisfactorily.

These cases are an example of this academic finding: much of the argument put forward is found logically and practically wanting in these very detailed judgements.

In the next post, I look at the information about the statutory basis for prohibiting helping other people to die.

Written by Malcolm Payne

24 September 2014 at 11:00 am

Mesothelioma changes may be for insurers’ benefit, not victims; more research needed

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Palliative care social workers often have to help people with mesothelioma, the lung disease which usually leads to an unpleasant death, caused by exposure, sometimes unwitting and often decades before the occurrence of the disease, to asbestos. This is an industrial disease and employers must pay compensation, but it is hard to prove where people were exposed to asbestos, and many employers have disappeared in the interim. Provision is often made by insurers, and the compensation payments have been valued by people affected, and their families after their deaths. The insurance industry has been trying to limit its liabilities (which are extensive and ongoing) and the government has been negotiating with them over this. This brief comment from the Kennedy’s Liability Briefs (Kennedy’s are a law firm that specialise in various forms of legal liability) indicates a recent move, and gives you a clue to what’s involved:

The Mesothelioma Act came into force on 1 September 2014, which creates a payment scheme, funded by the insurance industry, in order to help those victims who currently have no redress to compensation. Meanwhile, the Justice Committee has criticised the Government for lack of transparency about the ‘agreement’ drawn up between the Association of British Insurers (ABI) and the Government in 2012 in which the ABI agreed to pay for the payment scheme. A response by the Government to the call for a fresh review is expected by the end of September.

Link to the Kennedy’s Liability Brief

You might find it useful to look at the legislation:

Link to the Legislation

and look at the Parliamentary debates.

Link to the Parliamentary debates

This was routine government business, so it started out in the House of Lords. You can see the explanation of the Act given by Lord Freud in the House of Lords at the second reading, and this gives you a good idea of what’s involved:

Link to the second reading House of Lords debate

However, the Brief suggests that not all is hunky-dory. The Justice Parliamentary Select Committee published a series of reports about whether people claiming compensation could reclaim legal costs; the government, in its aim to cut legal aid costs has been arguing not, but virtually everyone else argues for it. The government is accused of not being totally transparent in its dealings with the insurance industry, giving rise to the suspicion that it has been keener to help the insurers than the victims of the disease (while also keeping its costs down). the report says, at Para 29:

We are concerned that the Government has not been transparent or open, either with us or with other interested parties, about the fact that its overall policy in relation to mesothelioma has been shaped in accordance with an “agreement”, however informal and elastic, which it had reached with employers’ liability insurers. It is hard to see how a balanced and informed public debate can take place when a prior agreement has been reached between two of the principal parties to that debate, and that agreement is not known to others participating in the debate, including victims.

Link to the Justice Committee 3rd Report on the scheme

Bearing this in mind, it might be good to keep our eyes open for how the Act in practice will work on behalf of victims and families, and encourage some of the interested MPsto tkae up things which do not seem to be going well.

There are lots of other issues, which emerged as the Act progressed through Parliament. For example, MPs were concerned that not enough research was being done to ensure that British NHS patients got the best treatments available elsewhere. You can see this debate in the House of Commons Report stage:

Link to the Third Reading debate.

Written by Malcolm Payne

2 September 2014 at 10:54 am

Deprivation of Liberty Safeguards: review the constraints and get external reviews

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More on the recent Supreme Court decisions on Deprivation of Liberties Safeguards; this legal commentary provides helpful guidance to local authorities, care home providers, hospices, hospitals and the like on how they should review their practice and decisions.

The helpful point is: ‘focus on the constraints’, not on the overall circumstances that a patient is in. And get independent external reviews done of long-standing arrangements; it is easy to get seduced by continuing with arrangements that seem to be working well.

Deprivation of liberty safeguards: “A gilded cage is still a cage” | Kennedys.