Sanctity of life and the law: Annie Lindsell's case
Pushpinder Saini, together with Lord Lester QC, worked on Annie Lindsell's High Court case. He specialises in the area of civil liberties and human rights, and was Counsel in the famous Tony Bland case.
What I'd like to speak about today is principally what Annie's case was about, because it was certainly misrepresented in the press, and certainly individuals who wrote to me, some of whom were sympathetic, some of whom weren't, completely got it wrong. Annie was seen to achieve two things, and they weren't really the things she wanted, because she wanted to push the law much further than it was ever going to go, but the two things she wanted to achieve were as follows:
1. The first thing she wanted to achieve was that a doctor could treat someone's mental distress with palliative medication (in her case diamorphine), before there was the manifestation of any physical symptom which could be the legitimate reason for administering palliative care.
2. The second thing she wanted to achieve was to expose the hypocrisy in the law and in the medical profession at the moment whereby doctors regularly administer palliative medication in very large doses and quite clearly cause the death of their patient, but are able to achieve the protection which the general law gives them from the law of homicide.
Now, as to the first issue the question of double effect. The principle reason Annie's case never went ahead was because from the very first day of the hearing, the Attorney General conceded that of course, if a doctor thinks his patient is suffering severe mental distress and he thinks a body of medical opinion would accept that morphine could be administered in those circumstances, even if it does cause the death eventually of his patient, then its perfectly all right to do that. Now that was the first open recognition by a person of authority of that fact. The case didn't go ahead so it didn't appear in a judgement, but that was accepted at the very outset by the Attorney General, faced with the fact that the medical profession, particularly the BMA, thought that this treatment was completely uncontroversial.
The fact that it was uncontroversial gave rise to the second question, which was why is it uncontroversial? And why does everyone accept that doctors somehow have an immunity from the law of murder? If I can take a brief example for you: if I do a positive act, under English common law, which I don't want someone to die as a result of, but I have knowledge that as a certain consequence of my positive act they will die, I am guilty of murder. It doesn't matter how good my motives are, or the fact that I'm doing it for some other main reason, if I'm an ordinary individual I am guilty of murder, because the law says you don't have to intend to murder somebody to be guilty of murder. If you do an act, and anybody can see that as a reasonable consequence of this act that the person will die, then you are guilty of murder. Foresight of consequences is enough to make me guilty of murder.
Why is it then that if a doctor who's treating a terminally ill patient administers a huge dose of morphine to treat pain, but the patient also dies, why is it that he is immune from any prosecution for murder? What is it about doctors that is special? Now the aim of Annie's case was to make the courts accept this, that doctors do this day in day out, and to make the courts say if it was any individual doing this it would be murder, but the reason the doctor is not liable is because there is some special exception for doctors.
When we were arguing Annie's case, in the immediate weeks beforehand, Lord Lester and I received many phone calls formally and informally from doctors saying; 'What the hell are you doing? Why are you bringing this case? You're going to do damage to the treatment of the terminally ill. We don't want a spotlight to be shone upon what happens every day. We don't want the court to say this is all right, because we're worried that if they actually see what is happening every day at home and in the hospitals they may actually say it is unlawful'. But Annie's point was that patient autonomy must come first, and if doctors are going to be making life and death decisions, why not make them honestly and openly? Why shouldn't the law accept now that what we would call voluntary euthanasia is being practised day in and day out, but under the guise of the 'double effect'? The doctor in effect closes his eyes to the fact that 24 hours after administering diamorphine, the patient's symptoms will be relieved, but they'll also be dead. Now what is the logical and legal justification for that? There is no case in this country so far where it has been acknowledged that doctors have some special immunity.
I hope that Annie's legacy will provide that at some point in the future a case will arise which will go all the way to a trial and a court is going to have to say one way or another whether doctors can do this or can't do this . Now, if they say doctors can't do this, I'm perfectly happy to accept that, because I think logically that if a doctor does a positive act that leads to a patients death, even if it is not intended, he should be subject to the same laws as everyone else that's murder. In a sense that would have been the best result in this case for Annie, because it would have caused an uproar, as doctors would suddenly have been exposed as doing something day in day out which is unlawful, and that may have been the incentive for parliament to take some step. Now, if doctors can do this, if the court says this is fine for doctors to do, one would like to see for the safeguarding of patients and doctors some clear guidelines as to when they should be doing this. I'm not saying doctors abuse this, but the point is that it is being done at the moment without any kind of supervision. The case may arise, sooner rather than later hopefully, where a doctor wants to take a step which is going to kill his patient, and the patient is in some terrible pain or distress, and a body of medical opinion will agree with him, that it is right in those circumstances to administer diamorphine to treat the distress or the pain, knowing that it is going to kill the patient, but that's all right. At the end of the day, on analysis, voluntary euthanasia is essentially that, where somebody has decided voluntarily that they, exercising their patient autonomy, wish to end their life, because for whatever reason and this is a personal issue for them they no longer wish it to continue.
Now, why should that decision, which is taken day in day out in the secrecy of the hospital room between doctors and patients, be dressed up in the language of double effect? The doctor will say if there's an inquest, and it will be accepted, that of course she died, but I wasn't trying to kill her, I was simply treating some underlying pain or symptom of her terminal illness. Now the sooner the courts accept that what's really happening in a lot of these case is that the person is being killed, voluntarily, by the doctor, the better it will be for the legal profession and the medical profession, and for individuals and patient autonomy. Some of those in this audience may say that that's essentially a matter for parliament no court is ever going to go that far but the very same thing was said at the beginning of the Tony Bland case. Tony Bland, to put no finer point on it, was killed through the lack of treatment of his doctors because he simply wasn't fed, and the House of Lords said that was fine. So, in an appropriate case, where the circumstances are right, the courts will find some way for providing a justification for the actions of the doctor. Now, hopefully that will happen soon. What's important in the meantime is, even if parliament isn't going to do something about it, that the decisions made day to day by doctors, life and death decisions, are exposed for what they are.
Now I accept that that may not be a good thing, because if they are exposed as being effectively murder, it may mean that lots of people will not receive these palliative drugs at the end of their lives. This may be detrimental as a whole, but my own view is that it is better to proceed on an intellectually honest basis in medical treatment decisions, than on a completely intellectually dishonest basis.
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