DLM Module 14.pdf

Some high-profile cases have attracted much media attention, demonstrating that this is an important subject in the public mind. For example: Dr Harold Shipman https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/273227/5854.pdf Dr Jane Barton https://www...

Some high-profile cases have attracted much media attention, demonstrating that this is an important subject in the public mind. For example: Dr Harold Shipman https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/273227/5854.pdf Dr Jane Barton https://www.bmj.com/content/bmj/340/7741/News.full.pdf This module covers recent legal debates and changes of legislation relating to death and dying, including euthanasia, organ donation and retention of human tissue by institutions. The emotive nature of public discourse on these subjects is recognised. Clinicians may encounter complex ethical and moral questions related to this area. This module outlines key areas of current legal thinking connected with clinical dilemmas pertaining to death and dying. Candidates should have an understanding of the legal and ethical issues surrounding death including all of the syllabus requirements below: Syllabus requirements for the death and dying module: From the Syllabus [https://fflm.ac.uk/exam-regulations-guidance] 11.1 Definition of death; 11.2 Death certification and cremation; 11.3 The role of the coroner and the structure and function of inquests 11.4 Fatal Accident Inquiries in Scotland; 11.5 Withholding and withdrawing life-prolonging treatment; 11.6 Patient refusal of life-prolonging treatment; 11.7 Advance directives; 11.8 Euthanasia and assisted suicide; 11.9 Organ donation; 11.10 Retention of organs and tissue; and 11.11 Medical examiners and medical reviewers (Scotland). Definition of Death………………………Not a clear concept! We all think we know when a patient is dead as it is such a fundamental part of what being a doctor is about. However….. Consider how you certify death, what criteria do you use clinically to pronounce life extinct and are your examinations sufficient for a robust diagnosis of death? One of the common tasks required from health care professionals is to pronounce life extinct; the Academy of Medical Royal Colleges recommended the following procedures as a pre-requisite to declaring that a patient is actually dead (2008): Observation To establish irreversible cardiorespiratory arrestor a robust diagnosis of death? In Primary Care – absence of mechanical cardiac function is normally confirmed using: Absence of central pulse on palpation Absence of heart sounds on auscultation In hospital – this can be supplemented by one or more of the following: Asystole on a continuous ECG display Absence of pulsatile flow using direct intra-arterial pressure monitoring Absence of contractile activity using echocardiography Any spontaneous return of cardiac or respiratory activity during this period of observation should prompt a further five minutes of observation from the next point of cardiorespiratory arrest. Fundoscopy examination- railroading appearance of vessels After five minutes of continued cardiorespiratory arrest the absence of the pupillary responses to light, of the corneal reflexes, and of any motor response to supra-orbital pressure should be confirmed. In law there is no obligation for a physician to be required to confirm death, neither is there obligation of a physician to view the dead body or to report the death, however, there is an obligation for the attending doctor to either issue a medical certificate of cause of death or t refer the case to the coroner/procurator fiscal.* Not only doctors, but others may declare (confirm) death, this includes nurses and paramed *See below regarding the reforms in place: Medical Reviewers in Scotland see http://www.healthcareimprovementscotland.org/our_work/governance_and_assurance/death_certificati on.aspx and in progress, with the introduction of: Medical Examiners in England and Wales. https://www.rcpath.org/discover-pathology/news/new-resources-on-medicalexaminers-for-members-and-commissioning-bodies.html There is no standard legal definition of death in English law, however in case law, death has been defined as brain stem death, so what exactly is brain stem death? 1. you must exclude conditions such as Hypothermia, electrolyte imbalance (e.g. phosphate imbalance), drug intoxication, encephalitis, encephalopathy, Guillain Barre Syndrome, all these will have an effect on formal brain stem testing procedures and thus render the neurological testing unsound, 2. it is necessary to perform a series of neurological tests looking for the following criteria: Absence of spontaneous movements, e.g. decerebrate posturing, Absence of pupillary reflex, Absent corneal, oculocephalic, cough, gag and oculo-vestibular reflexes Failure of heart rate to respond to intravenous atropine by more than 5 beats per minute Absence of respiratory effort with induced hypercarbia See: The Academy of Medical Royal Colleges’ Code of Practice for the Diagnosis and Confirmation of Death. http://aomrc.org.uk/wpcontent/uploads/2016/04/Code_Practice_Confirmation_Diagnosis_Death_10084.pdf There are three types of death certificate: 1. Medical certificate of cause of death (form 66) 2. Neonatal death certificate (form 65) (infant death from 0-28 days old) 3. Certificate of stillbirth (form 34) From 24 weeks gestation onwards resultant in a stillbirth Whilst healthcare professionals, if appropriately trained, may verify or confirm death, death certification requires a registered medical practitioner, and relates to cause of death rather than just fact of death. Death certification was first introduced nationally in England and Wales in 1837. Prompt and accurate completion regarding cause of death is important for the following reasons: For families – it enables the death to be formally registered and the family to make arrangements for disposal of the body Contains data that drive public health policy and improvements Management of health services Medical science and research Forensic purposes Currently in England, Wales and Northern Ireland, a form is completed declaring the medical cause of death (MCCD): The responsibility for completing the form rests with the doctor who attended the deceased during the last illness. The relevant legislation is the Births and Deaths Registration Act 1953. The doctor must certify the cause of death to the ‘best of his/her knowledge and belief’. There is no clear definition of “attended”, but in general, this is taken to be the doctor who cared for the patient during the last illness that led to death. The doctor should have access to the relevant medical records and investigation results. In hospitals, it is the treating consultant who has ultimate responsibility for ensuring that death is certified correctly. In the community, the GP would routinely fulfil the role. If the attending doctor has not seen the deceased within the preceding 14 days and has not seen the body after death, then the Registrar must refer to the Coroner. Reporting deaths in Scotland is to the Procurator Fiscal and investigation is the responsibility of the Scottish Fatalities Investigation Unit (SFIU) https://www.copfs.gov.uk/images/Documents/Publications/Reporting%20Deaths%20t o%20the%20Procurator%20Fiscal/Reporting%20Deaths%20to%20the%20Procurator %20Fiscal%20-%20Info%20for%20Medical%20Practitioners%20May%2019.doc When to refer to the Coroner Some examples include: Cause of death unknown Deceased not seen after death/within 14 days before death Death was violent/unnatural/suspicious Death may be due to an accident Death may be due to self-neglect or neglect by others Death may be due to an industrial disease or related to deceased’s employment The death may be due to an abortion The death occurred during an operation or before recovery from the effects of anaesthesia Death may be suicide Death occurred during/shortly after detention in police/prison custody Completing the MCCD Requirements to be included on the form are: Age of individual Place of death Last seen alive by me Information from postmortem Whether seen after death or not Cause of death statement (part 1): Immediate cause of death, (part 2), contributing conditions to the cause of death Intervals between conditions Doctor’s signature, residence and registered qualifications with GMC Date Reverse side: Referral to coroner or not The following guidance documents are available: England and Wales (2018) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/757010 /guidance-for-doctors-completing-medical-certificates-of-cause-of-death.pdf Scotland (2014) https://www.sehd.scot.nhs.uk/cmo/CMO(2014)27.pdf Completing cause of death Part 1 1a Disease or condition directly leading to death e.g. intracerebral haemorrhage N.B do not put mode of death e.g. asphyxia/cardiac arrest/renal failure 1b Intermediate cause of death e.g. Cerebral metastases 1c Underlying cause of death e.g. squamous cell carcinoma o the left main bronchus Notwithstanding the instructions within the book, filling a MCCD certificate can be difficult as it is not always clear as to the cause of the terminal event and due diligence needs applied regarding possible cases that should be referred to a coroner which do not immediately appear relevant to the certifying clinician. For example, consider an 89 year-old man dying in a nursing home from a decubitus bronchopneumonia, he had been severely bed bound and he had been in deteriorating health for several months. At first, this appears straightforward, however, on further examination, this man had suffered a fractured neck of femur following an accident 9 months earlier, when he was knocked off his bicycle in a road traffic accident from which he never fully recovered, remaining unable to walk after the accident. In this case, his death may be directly due in part to the road traffic collisions and the death needs to be referred to the coroner for further investigation particularly regarding the original details of the collision, completion of the MCCD by the attending doctor would not be correct. In Northern Ireland, there has been an inquiry regarding the cases of five children who had died from hyponatraemia. Initially, their deaths had been registered as natural deaths, however, the NI Coroner flagged these cases as suspicious and a full review into the deaths uncovered many problems with intravenous fluid management in paediatric hospital cases in Northern Ireland. http://www.ihrdni.org/Full-Report.pdf In addition to completing the certificate, the certifying doctor must record the details of the death on the counterfoil of the certificate book for future reference and recording purposes (unless the form is completed online). Details required are the patients name, details of cause of death and the certifying doctor’s details as well as date. Mortality reviews: Nationally, it is recognised that there are major limitations to hospital mortality statistics and how these can be interpreted. Therefore, to better understand and learn from hospital deaths, a standardised process of mortality case note review is required in England. This applies to deaths occurring not just during an acute episode of care, but also within 30 days of discharge. In 2017, the National Quality Board (NQB) published guidelines for all NHS providers in England on how to learn lessons from deaths. This is available at: https://www.england.nhs.uk/wp-content/uploads/2017/03/nqb-national-guidancelearning-from-deaths.pdf The Royal College of Physicians has developed Structure Judgment Review (SJR) methodology to look at deaths. This is available at: https://www.rcplondon.ac.uk/sites/default/files/media/Documents/NMCRR%20clinica l%20governance%20guide_1.pdf?token=AS-qWBcA The SJR involves trained reviewers (not previously involved in the patient’s care), scrutinizing the medical record and commenting on specific phases of clinical care. Cases are scored 1-5 (1 being poor, 5 excellent). All those scored 3 and under, are subject to a second-level review. Children’s deaths should be reported as laid out in the “Working Together to Safeguard Children” advice and the Department of Education Form C should be used as the reporting template. In summary when completing death certificates: Check eligibility to complete it Complete the certificate promptly Write legibly Check factual accuracy Check death does not need to be reported to the coroner/procurator fiscal/discussed with ME/MR Be aware of ethical considerations Who can sign these forms? The two parts of the cremation form have to be signed by two separate doctors: England & Wales Part 4 A Doctor who Is licensed to practice by the General Medical Council Has attended the patient with the last 14 days of the patient’s death and who has cared for the patient during this time or was present at the death. Has examined the patient after death. Part 5 Has checked the form 4 for accuracy. Has been fully registered with a license to practise for at least 5 years. Is independent of the form 4 doctor and who has no connections with the deceased or the deceased’s family. Has communicated with the doctor signing form 4. Northern Ireland Part B and C As above, but Part B and C rather than Part 4 & 5 Scotland MCCD MCCD No cremation form The relevant legislation is: The Cremation (England & Wales) (Amendment) Regulations 2017: https://www.gov.uk/government/collections/cremation-forms-and-guidance. With guidance here: The Cremation (England and Wales) Regulations 2008 – guidance to medical practitioners. The Cremation (Scotland) Regulations (2017): https://consult.gov.scot/burial-cremation/the-cremation-scotlandregulations-2017. Northern Ireland: Statutory Rules and Orders (NI) 1961, No.61 Cremation, Northern Ireland: http://www.legislation.gov.uk/nisro/1961/61/contents/made. Payment for the doctors filling in the requisite forms is made by the undertaker attending the deceased and as a private service this falls outside the NHS indemnity schemes (e.g. Trust vicarious liability). Scotland In May 2015, a medical review system was introduced in Scotland to provide independent checks on the quality and accuracy of MCCDs. The aim was to: improve the quality and accuracy of MCCDs- provide better public health information about causes of death; ensure that the processes around death certification were robust and had appropriate safeguards. There are 2 levels of review, based upon random selection of MCCDs: Level 1 – 10% of all deaths. The medical reviewer phones the certifying doctor to discuss what is written on the MCCD; Level 2 – 4% of all deaths – the medical reviewer speaks directly with the doctor and reviews the medical records. The MCCD form was updated whereby no further certification was required for separate cremation forms, ending the requirement for a second doctor to sign the form. GPs are able to complete an electronic MCCD, speeding up the review process. Further details of these changes can be found at healthcare improvement Scotland website: http://www.healthcareimprovementscotland.org/our_work/governance_and_a ssurance/death_certification/questions_and_answers.aspx Once completed, the relatives then usually take the death certificate to the General Register Office for the Registrar to issue the formal death certificate. Relatives have five days in which to register a death and the register requires the: The following documents are required to register a death and are expected to be produced by the person registering the death: Medical certificate for cause of death (MCCD) Proof of dead person’s identity, i.e., a utility bill, passport, driving licence etc. Proof of identity of registering person Details of the dead person, date and place of birth, full name at time of death, last address, occupation, the details of the dead person’s spouse or civil partner, the dead persons benefits entitlements Upon completion of the process, the registering person will receive: 1. Certificate for burial or cremation (the “green form”) 2. Certificate of registration of death (form BD8) Certain religions have customs related to death and all doctors need to be familiar with these customs, sensitivity needs to be applied in these cases: In Muslim deaths, cremation is prohibited and although post mortems are also banned by the faith, they remain a civil obligation under UK law where indicated. Buddhists usually prefer cremation to burial. Hinduism directs that cremation is expected following a death, usually this is within 24 hours of the death, but it may not be practicable in certain circumstances. Within the Jewish faith, it is expected that the deceased should be buried within 24 hours after death, certain Jewish sects ban cremation and generally, Jewish belief considers organ donation as a beneficial and good thing to do. Post-mortem examinations are prohibited by the Jewish faith but are carried out if legally binding, during the post mortem, a Rabbi should be present, furthermore, embalming is a prohibited action within the Jewish religion. As early as 1893, a Parliamentary Select Committee identified vulnerabilities in the UK system of death certification; https://api.parliament.uk/historic-hansard/lords/1900/jul/17/deathcertification However, a century passed before any significant change occurred. Factors which contributed to reform included: - Dame Janet Smith: The Shipman Report https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/273226/5853.pdf - Robert Francis QC: Report of the Mid Staffordshire NHS Foundation Trust Public Enquiry https://www.gov.uk/government/publications/reportof-the-mid-staffordshire-nhs-foundation-trust-public-inquiry - The Report of the Gosport Independent Panel https://www.gosportpanel.independent.gov.uk/ It is well recognised that death certification is often performed poorly and referral of deaths for investigation by the coroner is recognised to be inconsistent. Provision was made in the Coroners and Justice Act 2009 for all deaths in England and Wales, not investigated by the coroner, to be scrutinised by an ‘independent medical examiner.’ Whilst the reforms have not yet been completely implemented, pilots have tested the legislative changes and have successfully met the initial aims of the reforms at an overall cost per death scrutinised which is less than the current cremation form fees (which will be abolished). Medical Examiners are to be introduced in Secondary care in England from April 2019. Independent scrutiny of medical records and discussion with the bereaved has provided a good source of high-quality information about quality of care. The “Overview of death certification reforms” https://www.gov.uk/government/publications/changes-to-the-deathcertification-process/an-overview-of-the-death-certification-reforms was published in May 2016 and sets out the changes envisioned for the overhaul of the medical certification process, these changes are imminent in England and Wales, in Northern Ireland there is no time line for implantation of these changes at present. See https://www.rcpath.org/profession/medical-examiners.html https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/517184/DCR_Consultion_Document.pdf The proposed system, adopting a ‘phased roll out’ from April 2019 will cover the following suggestions: Where a death does not need to be investigated by a coroner, the attending doctor will prepare the MCCD and send a copy to the Medical Examiner’s Office. Doctors who are unsure of the cause of death will be able to seek advice from the Medical Examiner for guidance, increasing the quality and accuracy of MCCDs and reducing unnecessary reports to a coroner. Medical examiners scrutinise each MCCD and the medical records of the deceased. The medical examiner may determine that the MCCD appears to be incorrect and discuss this with the attending doctor. The Medical Examiner may also determine that a death is reportable and refer it to a Coroner, an activity currently undertaken by registrars. To confirm the cause of death, the Medical Examiner will discuss the cause of death with a member or representative of the family of the deceased (the informant) and if there are no concerns, the Medical Examiner will prepare and sign a notification stating the confirmed cause of death — this will be countersigned by the informant. At the time this module was first written, nobody could have predicted the COVID-19 pandemic and the impact it has had in all aspects of life and society. The Coronavirus Act 2020 is an enabling act that deals with numerous domains but includes provisions in respect of death certification and cremation forms. It also addresses deaths in the community as well as the remote verification of the fact of death. The British Medical Association has produced some excellent letters which serve as guides to these matters and interested readers can easily access them online at: https://www.bma.org.uk/advice-and-support/covid19/adapting-to-covid/covid-19-death-certification-and-cremation. The Coroner has a statutory role to investigate deaths that fall into their domain. Under what circumstances will an Inquest be held? The Coroner is expected to open an inquest where: there is reasonable suspicion that the deceased has died a violent or unnatural death, where the cause of death is unknown or if the deceased died while in custody or state detention as defined by section 1(2) of the Coroners and Justice Act 2009. The Coroner will also investigate where the deceased has not been seen by the doctor issuing the medical certificate, or during the 14 days before death. A jury must be summoned if the deceased died in custody or state detention and the death was violent, unnatural or cause unknown (no longer any need for a jury inquest where the deceased died in custody from natural causes); death resulted from an act or omission of a police officer in the execution of duty; or death was caused by accident, poisoning or disease which must be reported to a Government department or inspector. It is no longer mandatory for an Article 2 Inquest (ECHR Article 2 Right to Life) for all deaths occurring whilst an individual is subject to a Deprivation of Liberty Safeguard (DoLS). https://www.judiciary.uk/wp-content/uploads/2013/10/guidance-no16a-deprivation-of-liberty-safeguards-3-april-2017-onwards.pdf The Coroners (Investigations) Regulations 2013 removed the requirement for an Inquest to be held in the relevant Coroner’s district, enabling greater flexibility. The Coroner has an inquisitorial approach and not an adversarial approach, to establish the facts of a case rather than to apportion guilt/blame as is seen in a criminal trial. The role of the Coroner is to determine: Who the deceased was; When, Where, How, and in what circumstances the deceased came by his or her death; and, The particulars (if any) required by the Births Deaths and Registrations Act 19 to be registered concerning the death. The standard of proof required in a Coroner’s court is civil, meaning that a ruling is based on the “balance of probabilities” rather than “beyond all reasonable doubt”. A Coroner's enquiry is opened as soon as possible and then may be adjourned until the Coroner has sufficient information to proceed. Prior to the Supreme Court handing down judgment in the case of R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [UKSC 46], two coroners’ conclusions attracted the criminal standard of proof viz. beyond reasonable doubt. These were suicide and unlawful killing. Now, since 13 November 2020, all coroner’s conclusions attract the civil standard of proof. The Coroner determines who is called as a witness these can be a witness of fact or a properly interested party. “Properly interested persons” is defined in section 47(2) of the Coroners and Justice Act (CJA) 2009. A properly interested person has the right to actively participate in the inquest proceedings, whether by virtue of relationship to the deceased, involvement in the circumstances of the death or at the discretion of the Coroner. They have rights to receive disclosure of documents including toxicology and post mortem analysis and to have legal support in the Coroner’s court. Witnesses have a right not to self-incriminate Although the purpose of the inquest is fact-finding, where the Coroner deems it appropriate referral to other agencies, e.g. professional bodies, police, etc. Moreover, the family may decide to pursue a civil claim based upon information adduced at the Inquest. The Coroner’s certificate of medical death is an interim certificate issued by the Coroner to allow settlement of the deceased’s estate where a delay is likely. Coroner’s Regulation 28 reports (Prevention of Future Death Reports – PFD). If any information is revealed during the Coroner’s investigation, or during the course of evidence heard at the Inquest, which gives rise to “a concern that circumstances creating a risk of other deaths will occur, or will continue to exist in the future;” and if the Coroner is of the opinion that action needs to be taken, under Paragraph 7 of Schedule 5 of the Coroner and Justice Act 2009, the Coroner has a duty to issue a report to a person, organisation, local authority or government department, or agency. The person, body or organisation in receipt of this report has 56 days to provide the Coroner with their response, including details of actions taken. All such reports and responses are sent to the Chief Coroner and, the majority are published on the judiciary.gov.uk website. If a doctor is criticised at an inquest, the GMC requires they should selfreport to the GMC. If in doubt, ask advice of Medical Defence Organisations (MDOs). The Coroner’s possible conclusions: Conclusions replaced ‘verdicts’ in the Coroners and Justice Act 2009. Accident/ misadventure Neglect Suicide Natural causes Unlawful killing/ Lawful killing Open conclusion A narrative conclusion Industrial disease Stillbirth Alcohol or drug-related Challenging a Coroner’s conclusion: Whilst there is no formal right of appeal following an Inquest, it may be possible to challenge a Coroner’s decision or the outcome of the inquest by: Application under Section 13 of the Coroners Act 1988 Application for Judicial Review England and Wales The Coroners and Justice Act 2009 https://www.legislation.gov.uk/ukpga/2009/25/contents Northern Ireland The Coroners Act (Northern Ireland) 1959 https://www.legislation.gov.uk/apni/1959/15/contents The Chief Coroner has published a number of useful guidance documents https://www.judiciary.uk/related-offices-and-bodies/office-chiefcoroner/guidance-law-sheets/coroners-guidance/ Structure of the Coronial System Currently, there are over 88 Coronial Areas in England and Wales. Coroners are independent judicial officers who are appointed and paid for by the relevant Local Authority. Coroners in England and Wales are supervised by the Chief Coroner who is a judge appointed by the Lord Chief Justice, under the guidance of the Lord Chancellor. Although there are still some Coroners who are medically qualified, the requirement is now for Coroners to be legally qualified and to have been in legal practice for more than five years. In Northern Ireland, the system is unified with the Northern Ireland Coroners Service. This is governed by the Department of Justice. There are three Coroners, overseen by a High Court judge. In England & Wales 2017, 229,700 deaths were reported to the Coroner = 43% of all registered deaths; 14% resulted in an inquest being opened, thus 86% of registered deaths resulted in no inquest. Deaths in prison custody and deaths in patients detained under the Mental Health Act showed the highest rise in numbers (14% and 34% rise over 12 months) Further reading on deaths in custody: Report of Dame Elish Agiolini (2017) and UK Government response https://www.gov.uk/government/publications/deaths-in-police-custodyprogress-update A charity, ‘Inquest’ https://www.inquest.org.uk/deaths-in-police-custody Detailed coroner statistics are published annually and can be found at: https://www.gov.uk/government/collections/coroners-and-burialsstatistics What is a Fatal Accident Inquiry? A Fatal Accident Inquiry (FAI) is a public examination of the circumstances of a death in the public interest. It is an inquisitorial process. The Scottish Fatalities Investigation Unit (SFIU) is a specialist unit of Crown Office and Procurator Fiscal Service (COPFS). SFIU has responsibility for receiving reports of deaths occurring in Scotland which are sudden, suspicious, accidental or unexplained. There are two types of inquiries: Mandatory – the COPFS has no discretion as to holding an inquiry, even if there appears to be no lessons to be learnt from the death. Section 1(1) (a) (i) of the 1976 Act – where it appears that the death resulted from an accident occurring in Scotland of an employee in the course of employment or self-employed person. E.g. The Lockerbie FAI – the aircrew were employees of the Pan American airline. Section 1(1) (a) (ii) – the person who died was, at the time of death, in legal custody; includes suicides and death by natural causes. The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, has further broadened mandatory inquiries to include: The death of a child who was required to be kept or detained in secure accommodation Military deaths in Scotland Deaths of a person detained by the police in any location Discretionary - These are held under Section 1(1) (b), where it appears to the Lord Advocate to be expedient in the public interest that an inquiry under this Act should be held into the circumstances of the death on grounds that it was: Sudden, suspicious or unexplained or has occurred in circumstances which give rise to serious public concern. FAIs into medical deaths will be instructed under this discretionary category. The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 has widened this to include FAIs into deaths of Scots abroad, whether or not the body has been repatriated. FAIs are conducted before a Sheriff, following an investigation by the Procurator Fiscal. The procurator fiscal is responsible for presenting the evidence. Other interested parties, including nearest relatives or employers are also entitled to lead evidence. A useful resource has been published by the Scottish NHS deanery for people engaging with the FAI process, this is available at: http://www.scotlanddeanery.nhs.scot/media/2653/fai-doc-newlogo.pdf FAI Video: Made by NHS Deanery Scotland to educate about FAI process: https://vimeo.com/167901377 Approximately 11000 deaths are referred annually to the Crown Office and Procurator Fiscal Services (COPFS) and there are about 50 to 60 fatal accident investigations carried out from this number. England & Wales Terminology Inquest Presided over by Northern Ireland Scotland Inquest FAI Outcome: Conclusion Outcome: Outcome: Findings Determination Coroner appointed by LA Coroner DOJ Sheriff presides Guidance by Chief Coroner Jury Crown Office of Procurator Fiscal Deaths in Deaths in No jury custody/detention custody/detention (article 2) Accident at work Accident at work Outcome Conclusion Structure of service Over 90 separate Coroners Service coroner’s Northern Ireland jurisdictions in England & Wales 3 Coroners Coroners – independent judicial officers appointed by the Local Authority. Findings Head: High Court Judge Determination Crown Office and Procurator Fiscals Service (COPFS) Procurator Fiscals. Head: The Chief Coroner of the Coroners Service and gives guidance on standards and practice. Relevant legislation The Coroners and Justice Act 2009 Head: Lord Advocate The Coroners Act The Inquiries (Northern into Fatal Ireland) 1959 Accidents and Sudden Deaths etc. (Scotland) Act 2016 The basic tenet here is one of patient autonomy and the respect of patients with mental capacity to refuse medical treatment, however, for patients lacking mental capacity the rules are different. The British Medical Association (BMA) states: Can a patient refuse treatment? What the law says "A doctor who operates without the consent of his patient, save in cases of emergency or mental disability, is guilty of the civil wrong of trespass to the person; he is also guilty of the criminal offence of assault." Lord Scarman. Sidaway v Board of Governors of the Bethlem Royal Hospital Governors. [1985] AC 871 So key elements of valid consent include: [N.B. The patient must be able to retain long enough to make a decision] The Mental Capacity Act 2005 applies in England & Wales and useful information is included in the associated Code of Practice. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf See modules on Consent and on Mental Health Unless treatment is being provided under mental health legislation, competent adults can refuse treatments or investigations even where doing so will result in their permanent injury or death. This extends to pregnant women even if the decision results in the death of a viable fetus. All adults are presumed to be competent unless there is evidence to the contrary. Case examples include: Re B (Adult: Refusal of Medical Treatment)[2002] 2 All England Reports 449 Ms B had a condition caused by malformation of blood vessels in her spinal cord. She executed a living will stating that if she were unable to give instructions, she wished for treatment to be withdrawn if she was suffering from a life-threatening condition, permanent mental impairment or permanent unconsciousness. She became tetraplegic and when she experienced respiratory problems, the intensive care team treated her with a ventilator, which she was dependent upon. She asked for this to be switched off and the hospital refused. Ms B brought proceedings, seeking a declaration that she had the mental capacity to choose whether to refuse or accept treatment, a declaration that the hospital had been treating her unlawfully and nominal damages to recognise the tort of trespass to the person.Dame Butler Schloss determined that Ms B was competent, and that continuing her treatment, in the face of her clear objection, amounted to an unlawful battery and awarded nominal damages of £100. St George’s Healthcare NHS Trust v S [1998] 3 All ER 673 The Court of Appeal allowed an appeal against a declaration that St George's Healthcare NHS Trust might carry out investigations and treatment, including Caesarian section by general anaesthetic, on S, who was suffering from severe pre-eclampsia but who refused to consent to such treatment. The court also allowed S's applications for judicial review of decisions to admit her to and detain her at Springfield Hospital under section 2 of the Mental Health Act 1983; to transfer her to, detain and treat her at St George's Hospital; to make the application for a declaration; to undertake the medical procedures which culminated in the birth of her child; and to return her to and treat her at Springfield Hospital after the birth. On the other hand, the Court of Appeal has ruled that there is no right to demand medically inappropriate treatment – c.f. Leslie Burke (court of appeal and ECHR) Leslie Burke, who suffered from Friedrich's ataxia, a rare and progressive neurological condition, failed in his appeal to the European Court of Human Rights in Strasbourg for the right to receive artificial nutrition and hydration (ANH) once was unable to voice his wishes. With regard to adults lacking capacity…. One of the precedent cases involved Tony Bland, an 18-year-old Liverpool Football Club supporter who was very seriously injured during the Hillsborough disaster in 1989. As a result of the ensuing stampede; he suffered life-changing injuries, which left him in a persistent vegetative state. Airedale NHS trust brought the case to court in 1993 to seek a ruling as to whether life support treatment could be discontinued: The judges debated the moral and ethical issues raised by the case but in the end they agreed that given the circumstances: “ it is perfectly reasonable for the responsible doctors to conclude that there is no affirmative benefit to Anthony Bland in continuing the invasive medical procedures necessary to sustain his life. Having so concluded, they are neither entitled nor under a duty to continue such medical care. Therefore they will not be guilty of murder if they discontinue such care.” Airedale NHS Trust v Bland There has been a recent case which has clarified that it is no longer necessary to seek a court declaration in Persistent Vegetative State cases where: a. There is an advance directive b. There is agreement between clinicians and relatives: Relevant case law (supreme court ruling): Re v Y (2018) UKSC 46 case: This ruling centred around the case of a 52 year-old banker who had suffered a cardiac arrest which resulted in him entering a permanent vegetative state. His family had argued that he would not wish to be kept alive in this state as he had been a very active man who had enjoyed many sports and physical activities prior to his illness. Sadly, he died before the case was heard but the case proceeded in court to help establish a baseline for English law in such cases. The court ruled that it would no longer require a court ruling in similar cases to withdraw treatment, this however depended upon the individual having written his wishes clearly in advance of such a situation and that a court ruling would still be required if there was no advance directive for care or there were conflicting opinions between the family and the medical team providing care. Child cases There have been a number of high profile, tragically sad, cases regarding children where parents and clinicians have disagreed regarding treatment. In such situations, it is important for clinicians to take account of parental wishes and seek early legal advice. The case of Charlie Gard Charlie Gard (2017) was a 1 year old boy with the mitochondrial DNA depletion syndrome which is an incurable fatal disease of young children. Medical staff at GOSH held that continued treatment did not serve Charlie’s best interests, and should therefore be withdrawn. The family had argued that the hospital had been wrong to ask the court to stop medical treatment as they believed that there was a small chance of help from an American research programme not available to UK citizens. The press and the public were captivated by the image of critically ill baby and distraught parents fighting the system to keep their baby boy alive. After unsuccessful appeals to the supreme court, sadly the child died. The Court adopted a best interests approach. This was not a case of euthanasia, but a case of the Court determining whether or not ongoing treatment was in the child’s best interests.More, since being on a ventilator is burdensome in its own right, doctors have a positive reason not to ventilate unless it serves some greater purpose – a purpose lacking in Charlie’s case. Merely being alive is not sufficient. The full transcript of the Supreme Court judgement is available at:https://www.supremecourt.uk/cases/docs/charlie-gard-190617.pdf This case raises an interesting question on the place of parental autonomy and the right of parents to make decisions on behalf of their children. In effect, autonomy means that one can refuse treatment or choose between offered treatment options. As determined in Burke, there is no right to demand clinically inappropriate treatment. With regards to parental autonomy – as Francis J highlighted in para 18 of his ruling. https://www.judiciary.uk/wp-content/uploads/2017/05/gosh-v- yates-and-gard-20170411-1.pdf children are not the possession of parents. It is the best interests of the child that must take precedence. Parents get to make decisions on the rebuttable assumption that they act in the child’s best interests. However, if parental decisions appear to be in conflict with the child’s best interests, then there may be reason to discount them. Other important cases and judgements: An NHS Trust v MB [2006] EWHC 507 (Fam) This action deals with the case of a child with spinal muscular atrophy: The judge refused to make the declaration sought by the NHS Trust that it was currently in M's best interests to discontinue ventilation with the inevitable result that he would die immediately. Instead, he made a declaration that it would be lawful to withhold specified invasive procedures, which, if they became necessary at a later date, would indicate that M had moved naturally towards his death despite the ventilation. Charlotte Wyatt 2005 Charlotte Wyatt was a baby doctors expected to die – but did not. She was born three months prematurely in October 2003, weighing 1lb and suffering from serious brain, lung and kidney damage. Her neurological condition was “as bad as it could be” and chance of survival rated at 5 per cent. Doctors at the Portsmouth Hospitals NHS Trust said they believed if Charlotte stopped breathing – she had chronic lung disease as a result of her premature birth – they should not revive her as her quality of life would be so poor and be dominated by pain. A judge at the High Court agreed after her doctors asked for permission not to resuscitate her in a life-threatening situation. Her parents, then disagreed, saying she deserved every chance and challenged the decision. The issue then was whether doctors were entitled to withhold aggressive treatment from a severely disabled child they thought almost certain to die. However the judgment was overturned at the Court of Appeal: In his ruling on 11 April, Mr. Justice Francis cited Charlotte’s case in coming to his conclusion. “In Wyatt v Portsmouth NHS Trust… the Court of Appeal set out what it referred to as the ‘intellectual milestones’ for a judge making a decision of the kind with which I am faced today.” He then quoted Lord Justice Wall from the latter’s ruling on Charlotte in the Court of Appeal: “In our judgment, the intellectual milestones for the judge in a case such as the present are, therefore, simple, although the ultimate decision will frequently be extremely difficult. The judge must decide what is in the child’s best interests. In making that decision, the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the child. “There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable. The term ‘best interests’ encompasses medical, emotional, and all other welfare issues.” Jehovah’s Witnesses: Considerable publicity has been given to the situation for those of the Jehovah’s Witness faith, whilst adults have a right to autonomy; their children have concerned the courts with regards withholding treatment due to their parents’ religious beliefs: The section 8 (Children Act 1989) specific issue order (SIO) was designed specifically with this in mind, at the behest of the Jehovah's Witness community, among others. This order permits the court to exercise its power over (in this case) the specific issue of blood transfusion; whilst leaving the rest of the rights and responsibilities conferred by parental responsibility firmly with the parents. With such an order, transfusion is permissible. In desperate circumstances, such an order, or its oral equivalent, can be obtained over the telephone from a High Court judge in a matter of 30 minutes. If there is no time, then it is appropriate to proceed to preserve life and then seek the SIO. All decision making should be clearly documented. The Royal College of Surgeons has issued guidance “Caring for Patients Who Refuse Blood” See https://www.rcseng.ac.uk/search/#SearchTerm=blood%20transfusion Whilst competent minors (Gillick competent under the age of 16 or those aged 16-18 as per the Family Law Reform Act), can consent to treatment, their refusal of treatment can be overridden. The court’s underlying presumption seems to be that whilst it is important to respect a mature teenager’s decision-making autonomy this is trumped by the principle that society should not permit children to make decisions that might lead to their deaths. End of Life Treatment The GMC had published guidance (2010) https://www.gmc-uk.org/ethicalguidance/ethical-guidance-for-doctors/treatment-and-care-towards-the-endof-life The Liverpool Care Pathway for the Dying Patient (LCP) was a care pathway in the UK (excluding Wales) covering end of life options for patients in the final days or hours of life. It was developed to assist doctors and nurses provide quality end of life care, Now discredited, the LCP was abused as a 'tick box exercise', with some patients being casually assessed as terminal, heavily sedated, and denied water so the diagnosis became selffulfilling. It has since been replaced by adoption of individualised care pathways. NICE published Care of Dying Adults in the last days of life (2017). This is available at: https://www.nice.org.uk/guidance/qs144 The emphasis is on: Individualised care Communication and shared decision making Monitoring and review Managing symptoms NICE End of Life Guidelines: 2015 The National Institute of Health and Care Excellence published their guidelines in 2015; https://www.nice.org.uk/guidance/service-delivery--organisation-and-staffing/end-of-life-care#panelpathways The basic concepts are: 1. Recognising when a person is entering the end of life stage of their illness. 2. Ensuring good communication and shared decision making. 3. Individualised rather than standardised package of care offered to patients. 4. Supporting people at end of life stage to drink if they want to. Gold standards of care The National Gold Standards Framework (GSF) Centre in End of Life Care is the national training and coordinating centre for all GSF programs, enabling general frontline staff to provide a gold standard of care for people nearing the end of life. GSF improves the quality, coordination and organisation of care leading to better patient outcomes in line with their needs and preferences and greater cost efficiency through reducing hospitalisation. Cardio-Pulmonary Resuscitation (CPR) ‘Do not attempt CPR’, (DNACPR) decisions are considered in the following situations: 1. When a patient with capacity refuses CPR or a patient without capacity has recorded their refusal of CPR in advance 2. When CPR is judged very unlikely to be effective because the patient is dying from an irreversible condition 3. When the potential burdens of CPR outweigh the potential benefits 1 in 5 CPR attempts in hospital result in survival 1 in 10 CPR attempts in the community result in survival The decision not to attempt CPR should be distinct from decisions to initiate palliative care or to withhold other treatments Many patients with DNACPR decisions are discharged from hospitals A systematic review found shortcomings in considering, discussing and implementing DNACPR decisions. https://www.ncbi.nlm.nih.gov/books/NBK355498/pdf/Bookshelf_NBK3554 98.pdf Effects on patients and clinicians include: Futile or inappropriate CPR attempts Difficult and delayed discussion around DNACPR decisions Inappropriate withholding of other treatments Therefore, it is recommended that DNACPR is more integrated into Care Planning discussions with a focus on making personalised plans on broader emergency care and treatment and open to regular review. Terminology has shifted from ‘Do not resuscitate order’ (DNR) or “Do not attempt resuscitation order” to “Do not attempt Cardiopulmonary Resuscitation decision” (DNACPR). The reason for this is that “do not resuscitation” implies that the process of CPR is likely to result in resuscitation and also “order” implies a binding instruction. Providing the circumstances are those that were envisaged at the time the decision was made, professionals faced with making a best possible decision for a person at a time of cardiorespiratory arrest are likely to respect the DNACPR decision. In England and Wales If a person has capacity, as defined under the Mental Capacity Act 2005, the patient may decline resuscitation Discussions in relation to resuscitation should be an explanation rather than seeking consent, as patients and relatives cannot demand treatment that the doctor believes to be futile. It is the doctor’s duty to act in the patient’s ‘best interest’ If a person lacks capacity, the views of the relatives should be taken into consideration in discussions about resuscitation. A sample form, used to provide immediate access to decisions in the event of a cardio-respiratory arrest: Scotland Similar to England and Wales, the terminology is “Do Not Attempt Cardiopulmonary Resuscitation” There is a single policy used across all NHS Scotland CPR is viewed as a treatment. Whilst there is a presumption, that in the event of cardiac arrest, CPR will be performed, this is not the case, if it is deemed futile. GMC guidance is available at: https://www.gmc-uk.org/ethicalguidance/ethical-guidance-for-doctors/treatment-and-care-towards-the-endof-life/cardiopulmonary-resuscitation-cpr There are alternative terms used for this process, it can be known as an advance decision, an ADRT (advance decision to refuse treatment) or a living will. England & Wales The Mental Capacity Act 2005 provides a legal framework enabling people to make provisions for such a time as when they lack capacity. This includes: Advance Decisions to Refuse Treatment (ADRT) Appointing Proxy Decision Makers – Health & Welfare Power of Attorney N.B. consider how an advanced directive may need review, if treatment options change. A sample Advance Decision to Refuse Treatment is: In Scotland: The terminology is “Advance Directive” Common law. May not be legally binding An individual with capacity, can appoint a Welfare Power of Attorney – health and personal welfare In Northern Ireland There is no Parliamentary or Assembly law. The terminology is “Advance Decision” There is no option for proxy healthcare decision makers The Mental Capacity Act (NI) 2006 is not yet in force. This makes provisions for legally binding advance decision making and appointment of Lasting Power of Attorney for health/care. Euthanasia is defined as: The practice of intentionally ending a life to relieve pain and/or suffering, it originates from the Greek meaning: “Good Death” Francis Bacon originally used the word “euthanasia” in the UK in the 17th century. Voluntary euthanasia: Conducted with the consent of the patient. Non-voluntary: Where the consent of the patient is not available. Involuntary: Conducted against the will of the patient. Furthermore, euthanasia can be classified as active or passive: active implies the concept of “commission” of a lethal act such as the administration of a poison to a patient whereas, passive euthanasia involves the withdrawal of life supporting treatment(s), such as mechanical ventilation or withdrawal of medication, Physician assisted suicide: (PAS) The distinction between this and euthanasia is the fact that the patient expresses a desire of death to the physician who makes available to the patient the means to end their life, crucially, the administration of the substance is done by the patient rather than the doctor. Euthanasia is against the law in the UK where it is illegal to help anyone kill themselves. Voluntary euthanasia or assisted suicide can lead to imprisonment of up to 14 years. Euthanasia is a topic which generates heated debates and is surrounded by religious ethical and practical considerations. Some of the key ethical prisms include: Sanctity of life: This concept concerns the belief that life is sacred, holy and precious and has been used by pro-life supporters to assert that as such this principle means we should not intervene in committing such acts as abortion, euthanasia or other major ethical dilemmas. Vitalism: Vitalism is the belief that "living organisms are fundamentally different from non-living entities because they contain some non-physical element or are governed by different principles than are inanimate things" Legalisation is unnecessary palliative care can be optimised in practice, doctors do help patients to die (Doctrine of Double effect) Principle of “double effect”: A successful defence can be made by a doctor administrating a medication with the intent of relieving symptoms, e.g. high dose opiate medication in terminally ill patients for severe pain control relief which has the secondary effect of shortening a patient’s life as a consequence. With opiates, such a large dose of medication could have the secondary effect of suppressing respiratory drive resulting in a fatal respiratory arrest directly brought about by the high dose of the opiate used. Dr Bodkin Adams Dr John Bodkin Adams was a British general medical practitioner, he was tried for multiple offences in 1957 including the alleged murder of one of his patients, during the trial the concept of double effect was raised, this was the first time that this concept had been raised at a trial for murder and the judge, Sir Patrick Devlin raised serious concerns to the government about the prosecutions handling of the trial. Dr David Moor Dr David Moor was another British physician who was alleged to have boasted that he had killed up to 300 patients during his career, in 1997, Dr Moor administered a fatal dose of Diamorphine to an elderly patient (85-year-old George Liddell), this death was picked up by a journalist after the doctor had bragged that he had already killed two patients that week, at trial, Dr Moor was found not guilty of the murder as toxicological analysis was unable to prove that the dose administered had actually caused the death, despite this acquittal, Doctor Moor became known by the press and the public as “Doctor Death” and labelled as “Britain's greatest serial killer”. Dr Cox Thirty-five years later, Doctor Cox, treating a patient who was ‘…terminally ill with rheumatoid arthritis, in considerable pain, if not agony…’ had administered two ampoules of intravenous undiluted potassium chloride a minute or so before she died. During his trial for her homicide, the judge told the jury that it was plainly the doctor’s duty to do all that was medically possible to alleviate pain and suffering. His defence asserted that this was an unorthodox method of relieving pain and suffering; which the patient’s suffering fully justified. The doctor was convicted. The defence had failed to convince the jury that Doctor Cox’s intention had solely been to relieve his patient’s suffering. It can be deduced from the conviction that they believed he intended to kill her. If he had chosen a conventional analgesic, both the prosecution and the conviction would have been unlikely. The concern is around potential coercion by relatives or indeed constraints with healthcare resources, in the event of legalisation of euthanasia. Arguments in favour of euthanasia Autonomy - The principle of self-determination is increasingly dominant in medical law. It has been argued that a patient’s right to make decisions about medical treatment should extend to deciding the time and manner of death. However, few advocates would allow unrestricted access to medical assistance in dying. Moreover, a patient’s right to make decisions about medical treatment is generally confined to the right to refuse treatment, rather than the right to demand that a doctor undertakes a particular procedure. Beneficence - Also referred to as ‘mercy’. When curing the condition is no longer possible, the doctor’s duty to ‘do good’ encompasses doing what he/she can do relieve the patient’s suffering. Quality of life - With regards healthcare, quality of life is often regarded in terms of how a certain ailment affects a patient on an individual level. This may be a debilitating weakness that is not life-threatening; lifethreatening illness that is not terminal; terminal illness; the predictable, natural decline in the health of an elder; an unforeseen mental/physical decline of a loved one; or chronic, end-stage disease processesIt has been used a reason for euthanasia in so much as quality of life is more important than quantity of life Human Rights Act 1998 - One of the main arguments used to justify the legalisation of euthanasia is with reference to the Human Rights Act, specifically, reference is made to article 3 of this act, denial of euthanasia has been argued as being contrary to this article resulting in persons being subject to inhuman and degrading treatment, another alleged violation is that related to Article 8 whereby campaigners suggest that their denial to a private and family life is being denied by the UK refusing to legislate for euthanasia. There have been many high-profile cases over the past few years challenging the law on euthanasia in the United Kingdom, the main arguments are that the existing legislation is in contravention of article 8 of the European Convention on Human Rights relating to respect for private and family life as well as Article 14 which protects against discrimination. UK courts to date have dismissed all of these arguments: Notable cases include for example: Diane Pretty: Diane was a woman dying from motor neurone disease and petitioned the House of Lords to ensure that her husband would not be prosecuted if he assisted her euthanasia, the House of Lords rejected her case and stated that: “the right to life did not include a right to die” as well as ruling that a right to a private life did not include a right to decide when to die: After this, Diane went to the European court who rejected her appeal but interestingly stated that the right to decide how to end her life came under the right to a private life under the human rights legislation, however, in the end, the court ruled in favour of the UK ban on euthanasia on the grounds of protecting vulnerable people Noel Conway (68-year-old): Another advanced Motor Neurone disease patient requesting right for euthanasia; This patient had argued that he had become entombed by his illness; however, he lost his right to euthanasia at the high court in June 2011 Suicide, Euthanasia and Assisted Suicide At present, euthanasia and assisted suicide are illegal within the United Kingdom The detail is contained within the Suicide Act (1961) http://www.legislation.gov.uk/ukpga/Eliz2/9-10/60 Guidance has been issued by the Director of Public Prosecutions (DPP) https://www.cps.gov.uk/legal-guidance/suicide-policy-prosecutors-respectcases-encouraging-or-assisting-suicide Euthanasia however is legal in Switzerland, Belgium (2002), Luxembourg (2009), Germany, the Netherlands (2002) and several states of the United States of America (Colorado, Oregon, Hawaii, Vermont, Washington DC and California) The charge/penalty for assisting a suicide is murder or manslaughter depending upon the case circumstances. Within the United Kingdom, an attempt to legitimise euthanasia in Guernsey was quashed by a parliamentary vote in May 2018; this proposal was opposed by the BMA. The case of Debbie Purdy Debbie Purdy was a journalist and political activist who had multiple sclerosis, she was concerned that if her husband assisted in he