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• Reply to Paul Biegler
  Charles A Foster
  Published on: 18 February 2004
• Re: Patient consent to DNR orders: some legal observations
  Paul Biegler
  Published on: 23 January 2004
• Patient consent to DNR orders: some legal observations
  Charles A Foster
  Published on: 18 December 2003

• Published on: 18 February 2004

  Reply to Paul Biegler

  • Charles A Foster, Barrister

  Dear Editor

  I am grateful to Dr Biegler for his response.[1]

  I do not think that Dr Biegler’s thesis demands any legally "counterintuitive claims". On the contrary, what he suggests seems in many ways to be intuitively right. His law is wrong, not his intuition. The law is sometimes counterintuitive (and downright unethical) in some situations in order to preserve principles which generally give just results....

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  Dear Editor

  I am grateful to Dr Biegler for his response.[1]

  I do not think that Dr Biegler’s thesis demands any legally "counterintuitive claims". On the contrary, what he suggests seems in many ways to be intuitively right. His law is wrong, not his intuition. The law is sometimes counterintuitive (and downright unethical) in some situations in order to preserve principles which generally give just results.

  To take his points in turn:

  (a) He says that “in most circumstances where a DNR order is written the doctor has already assumed a duty of care in relation to the patient”, and cites Kennedy and Grubb in support of the proposition that in relation to emergency care, simply being on duty in an emergency department implies an undertaking to provide emergency care.

  All this is uncontroversial. But it is irrelevant to the argument, because simply to assert that a duty of care exists is meaningless unless one specifies exactly what there is a duty to do. What is in issue here is whether a doctor can be required to assume a duty to do something very specific which he may think is clinically contraindicated. The mere existence of some duty of care does not imply anything at all about the demands of that duty in particular clinical circumstances.

  (b) His contention that the “best interests” criterion is applicable in the case of competent patients is simply wrong in law. The common law is robust in its defence of the human right to do life-endangeringly eccentric things which would cause any half-competent doctor to scream.

  Lord Goff, in Bland, put it like this:

  "…it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so..”[2]

  This was classically demonstrated by the recent case of Miss B. [3] She was paralysed from the neck down, and required mechanical ventilation. She decided that her life was not worth living, and told her treating clinicians to turn off the ventilator. They refused, no doubt thinking that it was in her best interests to stay alive. It was not considered remotely arguable that the clinicians were legally right. Since Miss B was competent, she had an absolute right to decline medical treatment, even if that meant her death. In a battle between the autonomy of a conscious patient and the perceived “best interests” of the patient, the law says that autonomy always wins. Or, put another way, the interest in honouring autonomy always trumps any other interest which might be identified.

  (c) He rightly indicates that a “prior refusal of resuscitation might constitute [an advanced directive]”. But to talk about a “compelling duty” to adhere to an advanced directive again conflates the law of negligence with the law of consent. An advanced directive can only be an indication of what the patient thinks will constitute his best interests if the specified circumstances arise. That indication may be legally conclusive against the treatment which the doctor thinks is in the patient’s best interests. Treatment in such circumstances would be an assault [4]. It is a wholly different proposition to say that to fail to comply with an advanced directive that there should be treatment in such circumstances would be actionable. The law of consent is happy for doctors to be told that they must not do things: the law of negligence is not happy for them to be told that they must.

  I do not say that the law stands up to much logical scrutiny: it does not. It is, in this area at least, shabbily pragmatic. But it is clear enough, and its philosophically dubious fixes seem to do a reasonable job.

  References

  (1) Biegler P, Patient consent to DNR orders: some legal observations [electronic response: 23 January 2004] jmedethics.com

  (2) Airedale NHS Trust v Bland [1993] AC 789 at 864

  (3) B v An NHS Trust [2002] 1 FLR 1090

  (4) A good illustration, although not a case of a formal advanced directive, is Malette v Shulman (1990) 67 DLR (4th) 321.

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  Conflict of Interest:
  None declared.

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• Published on: 23 January 2004

  Re: Patient consent to DNR orders: some legal observations

  • Paul Biegler, Staff Specialist, Emergency Department

  Dear Editor

  I thank Mr Foster for his response.[1]

  If I understand him correctly he advances three claims. Firstly, he suggests that the question of consent might not be a relevant consideration in relation to DNR orders if the treating doctor is able to “wash his (or her) hands” of a duty of care to the patient. Secondly, he suggests that in the case of a competent patient the best interests criterion d...

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  Dear Editor

  I thank Mr Foster for his response.[1]

  If I understand him correctly he advances three claims. Firstly, he suggests that the question of consent might not be a relevant consideration in relation to DNR orders if the treating doctor is able to “wash his (or her) hands” of a duty of care to the patient. Secondly, he suggests that in the case of a competent patient the best interests criterion does not apply, and that the latter is only applicable once the patient loses competence. He concludes that my thesis, for it to be successful, would require me to make three counterintuitive claims. Namely, that doctors could be; forced to assume a duty of care to a patient; forced to do a “positive act” to a patient; and required to act against the doctor’s perceived assessment of the patient’s best interests.

  With regard to Mr Foster’s first claim it should be noted that in most circumstances where a DNR order is written the doctor has already assumed a duty of care in relation to the patient. The question of whether resuscitation in the event of cardiopulmonary arrest would be in the patient’s best interests usually arises in the context of another, often serious, illness for which that patient is being treated.

  Outside of those situations where the patient is already being treated, a doctor may in fact owe a duty of care to people who are not yet patients of that doctor. Australian common law holds that a doctor owes a person a duty of care with whom there exists physical, circumstantial and causal proximity.[2] That is, the doctor is able logistically to attend a patient whom that doctor is aware is in need of medical care and to whom such care would make a medical difference if it were proffered.

  In relation to emergency care, Kennedy and Grubb seem to affirm such a duty

  …when a doctor has held himself (sic) out as undertaking to treat individuals requiring emergency care… by being on duty in an emergency department of a hospital, he will be deemed to have undertaken to provide emergency care once he is aware of the need for it.[3]

  In response to Mr Foster’s second claim, I would argue that the best interests criterion is very much applicable in the case of the competent patient. Lord Templeton said

  the doctor… impliedly contracts to act at all times in the best interests of the patient.[4]

  Patients contribute to the doctor’s understanding of what is in their best interests through discussion of the relevant facts. Patients make advance assessments of their own future interests when consenting to surgery and also when making advance directives ruling out certain treatments should they become incompetent to make medical decisions. In short, patients can usefully contribute to a decision about whether future resuscitation might be in their best interests.

  Incidentally, the best interests test is not the only consideration that applies when the patient is no longer competent. The doctor’s contemporaneous assessment of best interests in an incompetent patient might be subsumed to the more compelling duties of adhering, as mentioned, to a valid advance directive [5] (a prior refusal of resuscitation might constitute such a directive) or complying with the wishes of a valid surrogate decision maker.

  I reject the claims that my thesis means that doctors could be forced to assume a duty of care and treat patients. They could only be “forced” to do these things to the extent that the law “requires” them to do anything. Doctors who choose not to treat would be subject to review and presumably risk claims of negligence if a duty of care could be proven to have existed.

  Further, as I stated in my paper, no doctor could or ought to be compelled to act against his or her views of what is in the patient’s best interests. However, his or her actions, as in any medical case, would be open to retrospective scrutiny to assess their probity.

  Finally, the main purpose of my argument is not to evolve a persecutory framework compelling doctors to alter their practices but to ask doctors to think about how patients’ competent wishes contribute to an assessment of what treatment might or might not be in their best interests at the end of life. As Mr Foster rightly points out

  "If autonomy means anything, it must mean a right to be involved in decisions about one’s own survival."[1]

  What I hope to have persuasively argued in my paper is that a patient’s competent wishes in this setting ought to be respected.

  References

  1. Foster CA. Patient consent to DNR orders: some legal observations [electronic response to Biegler P; Should patient consent be required to write a do not resuscitate order?] jmedethics.com 2003http://jme.bmjjournals.com/cgi/eletters/29/6/359#92

  2. Lowns v Woods (1996) Aust Tort Reports 81-376

  3. Kennedy I, Grubb A. Medical law: text with materials. London: Butterworths; 1994: 79

  4. Per Lord Templeman in Sidaway v Bethlem Royal Hospital and Maudsley Hospital Board [1985] 1 All ER 643 HL 665-6

  5. Biegler P, Stewart C, Savulescu J, Skene L. Determining the validity of advance directives. Med J Aust 2000; 172:545-8

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  Conflict of Interest:
  None declared.

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• Published on: 18 December 2003

  Patient consent to DNR orders: some legal observations

  • Charles A Foster, Barrister

  Dear Editor

  Dr. Biegler concludes that patient consent to a DNR order should be required [1]. He rightly locates the reason for that ethical demand in the principle of autonomy. If autonomy means anything, it must mean a right to be involved in decisions about one’s own survival. It is also correct to say that the law of consent, at least in common law jurisdictions, is built on the philosophical foundation of au...

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  Dear Editor

  Dr. Biegler concludes that patient consent to a DNR order should be required [1]. He rightly locates the reason for that ethical demand in the principle of autonomy. If autonomy means anything, it must mean a right to be involved in decisions about one’s own survival. It is also correct to say that the law of consent, at least in common law jurisdictions, is built on the philosophical foundation of autonomy [2]. Dr. Biegler seems to imply that consistent application of the principle of autonomy would require the law of consent to agree with his conclusion about DNR orders. But the law of consent is not the only law relevant to the question of the requirement of consent to a DNR order. Also engaged is the more general law governing a doctor’s duty to his patient. This is painfully dislocated from the law of consent. Broadly, in UK law at least, a doctor can choose when to assume a duty [3]. If he chooses to assume that duty, the law of negligence swings into play and says what he has to do in order to discharge it properly. But at almost any time the doctor can wash his hands of the patient. That washing might get a doctor into trouble with his employers or with the GMC: it will not get him into trouble with the law of tort. The law of tort will not draft conditions of employment.

  If a doctor decides to assume a duty, the law tends to describe his obligations in negative terms. It tells him that he must not do certain things. Even when condemning commissions it uses negative language: such and such a commission would amount to a dereliction of duty. Having been brought up in the context of negligence, the law is almost totally inarticulate in its discussion of positive duties. There is only one arguable example of a positive duty: the duty to act in the best interests of a patient who is unable to consent to the proposed treatment. The deployment of the Bolam test [4] in ascertaining the patient's "best interests" and determining the compliance of a doctor’s actions with those "best interests", transmutes even this duty into something akin to the ordinary obligation of not being a negligent doctor.

  The relevance of the "best interests" criterion to the question of consent to a DNR order is interesting and moot. At the time Dr. Biegler says the consent should be taken, the patient is of course conscious and presumably competent. That would suggest that no "best interests" considerations arise at all. But at the moment when any resuscitation attempt would occur, the patient would be unconscious. Then, conventional legal wisdom would say, the only relevant consideration is that of "best interests".

  All this cannot cloak the legal reality. The corollary of Dr. Biegler’s proposal is that a patient could require a doctor to resuscitate him. (If Dr. Biegler would not go this far, then the requirement he is talking about is not a requirement to obtain a patient’s consent to DNR at all, but an obligation simply to discuss the issue, which is a very different matter.) This would require radical exceptions to be made to three fundamental legal principles. First: a patient would, unprecedentedly in the law of tort, have to be able to force a doctor to enter into a doctor-patient relationship and thereby assume a duty. Second, the patient would have to be able to force the doctor to do a positive act. And third, the doctor would have to be required to do something to an unconscious patient which he did not believe was in the patient’s best interests.

  Those principles are there for a number of good reasons. If they are eroded, there may be damage to the law a long way from the ICU.

  References

  (1) Biegler P. Should patient consent be required to write a do not resucitate order? J Med Ethics 2003; 29: 359-363

  (2) See, for example, Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 AC 171, per Lord Scarman at 182; and Airedale NHS Trust v Bland [1993] AC 789, per Lord Goff at 864 and Lord Mustill at 891.

  3. Jones v Manchester Corporation [1952] QB 852; Cassidy v Ministry of Health [1951] 2 KB 343; Capital and Counties plc v Hampshire County Council [1997] 2 All ER 865

  4. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

  5. See F v West Berkshire Health Authority [1990] 2 AC 1; Re SL (adult patient) (medical treatment) [2000] 1 FCR 361: Re A (medical treatment: male sterilization) [2000] 1 FCR 193

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  Conflict of Interest:
  None declared.

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