Will they withstand legal challenges?
BMA House in London at twilight
Godwin’s law, a well-known internet maxim, hold that “as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1”. Similarly, in discussion of end-of-life issues the probability of a citation of the 1884 case in English law of Regina v Dudley and Stephens approaches 1. In this important precedent, two seamen were convicted of murder for having killed and eaten a companion when they were castaways at sea.
A moment’s consideration will reveal the relevance of this distant case to the Covid-19 pandemic. May doctors remove ventilators from some patients, thus dooming them, to help other patients who have better chances of survival?
This is one of the questions that James Hurford, a lawyer, deals with in a blistering critique of guidelines issued by the British Medical Association to UK doctors last month.
In his article in The New Bioethics, Hurford declared that “The Guidance’s brutally utilitarian ethical approach seems to cut across fundamental values of English medical law. Sanctity of life and patient autonomy both arguably take a back seat to an approach based principally on maximizing benefits to the greatest number.”
He accuses the BMA of failing to take into account the traditions and statutes of English law, leaving doctors who follow its guidelines vulnerable to prosecution after the dust of the emergency settles.
English law shies away from a general rule of necessity being a defence to deliberate killing. The Guidance, however, suggest that there may be circumstances where it would be justifiable to discontinue treatment in order to treat those assessed as likely to have a more favourable outcome (BMA, 2020: 3). While this is in line with the utilitarian leanings of the Guidance, it is difficult to see how this could be lawful.
Post-Bland, withdrawal of treatment from an individual who can no longer benefit may be permissible; however if this is done for the primary purpose of giving the treatment he is receiving to another, that would arguably be a wholly different situation…
In short, withdrawal of treatment from one person in order to provide it to another could be considered murder. Coupled with the lack of clarity in the approach recommended in respect of ‘best interests’ decisions, this part of the Guidance arguably presents a risk of seriously vulnerable people being subject to euthanasia where they are considered to be taking up resources which could be better used elsewhere. It seems unlikely that this is what the Guidance means, and it may be some unfortunate wording. However, given this Guidance may be relied upon by those treating vulnerable patients, some urgent clarification is needed.
Hurford praises the BMA for attempting to create clear policies and lines of accountability in clinical decision-making. It is, he says, “a well-intentioned attempt to support and advise members during a difficult period”. However, he notes, “the road to Hell is frequently paved with good intentions. The BMA may wish to look carefully at some aspects of the Guidance as a matter of urgency.”
Michael Cook is editor of BioEdge
british medical association
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