1029
Medicine and the Law
coma, even if the necessary papers had been signed, since the
patient would not have the chance to change his mind while unconscious. The law would require that a second physician not directly taking part in the patient’s care agree with the attending physician that death is likely within six months. A patient advocate or ombudsman designated by the state. department of ageing must witness the signing of the directive by nursing-home patients. All patients must be counselled on the alternatives to dying. It is legal in California for a physician to withdraw life-support, including hydration, if a patient with terminal illness requests it. At present only in the Netherlands, where
.
euthanasia has been decriminalised but not written into law, physician-assisted death widely practised. Opponents of Proposition 161 fear that it goes too far down the "slippery slope" of circumstantial ethics. Aside from moral considerations, objections include the possibility of is
of illness, the absence of a requirement for witnesses for the final request or at the time of death, the absence of a requirement for psychological examination, and the absence of a waiting period between the request to die and the act itself. The American Civil Liberties Union, individual physicians, patients’ relatives, some senior citizen organisations, and the Hemlock Society (a pro-euthanasia society) are the measure’s chief advocates. Polls a year ago showed that Californians favoured, by about two to one, allowing physicians to help patients with terminal illnesses to die. An informal survey by the American Society of Internal Medicine of 1000 members revealed that 80 of the 402 who responded said that they had deliberately assisted in a patient’s death. Earlier this year the American Medical Association Council on Ethics and Judicial Affairs rejected "at this time" arguments favouring
misdiagnosis
physician participation. Harry Nelson
Germany: Keeping woman
a
brain-dead pregnant
"alive"
A decision to maintain the respiration and nutrition of an 18-year-old, 15-weeks-pregnant brain-dead woman is the subject of much controversy. The woman had been injured
accident. In similar cases in the UK, USA, or Finland, where healthy babies were eventually born, the women had been in more advanced stages of pregnancy. Nevertheless, the doctor in charge, Prof Johannes Scheele, decided that the mother, who is unmarried, should be kept "alive" until the child can be safely delivered by caesarean section. The woman’s parents (the father is unknown) disagreed at first but eventually changed their minds when the ethics committee of Erlangen University advised continuation of the pregnancy. Most of the medical experts who have given statements on the case have welcomed the decision of the Erlangen hospital. The president of the doctors’ Federal Council in Cologne, Dr Karsten Vilmar, denied the allegation that the mother is being abused as a "breeding device". Like Scheele and other doctors, Vilinar argues that the life of the child cannot be sacrificed. Theologians have been divided in their opinion but most have supported the decision, on grounds of the unborn child’s right to live. Others have argued that the brain-dead mother has a right not to be kept alive artificially. Politicians have shown mixed reactions. There might be a debate in the federal parliament soon.
in
a car
Annette Tuffs
Compulsory intervention during
pregnancy
On Oct 13 clinicians at a London hospital sought an emergency ruling from the Family Division of the High Court to override the refusal of a 30-year old mentally competent woman to undergo an emergency caesarean section. The woman ("Mrs S") had been in labour with her third baby since Oct 10. She was admitted to hospital on Oct 11 but refused caesarean delivery even though it was urgently indicated because the fetus was in a transverse lie with its elbow projecting through the cervix. There was a real risk of a rupture of the uterus and the operation offered the child its only chance of being bom alive. The woman was adamant; indeed she had opposed caesarean section in a previous confinement. She and her husband were "bomagain Christians". The hearing was in chambers before Sir Stephen Brown, president of, and the most experienced judge in, the Family Division. He had only a few minutes to decide. The judge, used to considering families as units, probably took into account the interests of the family as a whole (there were two young children) in effectively substituting his approval for the mother’s refusal. The judge’s decision, whilst intended to be humane and pragmatic, looks to me to be doubly flawed. Did the court have any jurisdiction to override the mother’s refusal and why did he allow the interests of the unborn child greater weight than those of the mother? This decision should be appealed against since it threatens to set a dangerous precedent for pregnant women who do not comply with their doctor’s choice of treatment or who are perceived not to be acting in the interests of their unborn child. Of course, all that the judge said was that the procedure would in the circumstances be lawful. He did not compel the woman to have the operation. Unless the woman was under sedation it is difficult to see how compulsion would have been possible in the face of her continued refusal. According to Margaret Puxon (qualified as a barrister and an obstetrician), writing in The Times of Oct 19, the woman put up no further resistance. In another case heard last July in the Court of Appeal the Master of the Rolls, Lord Donaldson, said that an adult with no mental incapacity had an absolute right to choose whether to consent to treatment (blood transfusion in this instance) or refuse it. That right existed irrespective of the reasons for making a particular choice. If a patient has the required capacity doctors were bound by the patient’s decision but if not they must do whatever they believed to be in the patient’s best interests. In "T" capacity was an issue in the court’s decision that the treatment would in those circumstances be lawful but in my view that earlier case (which I discussed on Aug 1, p 297) provides no scope or jurisdiction for Sir Stephen Brown lawfully to override S’s wishes. She had the full mental capacity and maturity to consent to or to refuse life-saving treatment. In In re F (in utero)the Court of Appeal dismissed an appeal against the refusal of a judge to make the unborn child (at term) of a mentally disturbed woman a ward of court. There was no jurisdiction. The woman’s lifestyle was thought to be putting the life of her unborn child at serious risk. The local authority, which had made the application, argued that the court should not be averse to extending wardship where a viable child was at risk. That argument was
wholly rejected.
1030
In the appeal in Fl one judge said that to accept jurisdiction would have created conflict between the legal
interests of the mother and those of the unborn child. Another judge said that the only purpose of extending the law’s jurisdiction to include the fetus would be to control the mother’s actions. Taking matters to extremes, a court faced with saving a baby’s life or its mother’s would surely have to protect the baby. The cautious attitude adopted by the Court of Appeal in F should be contrasted with the interventionism of Sir Stephen Brown’s decision. In the United States the courts have gone even further down the route of interventionism, for a time anyway. The trend began with Jefferson vs Griffin Spalding County Hospital and the 1986 decision in Maydun where the judge ordered a hospital to protect the fetus, including a caesarean section if necessary, despite refusal by the mother. In Jefferson (a case of complete placenta praevia) a caesarean section would have an almost 100% chance of a successful outcome for both mother and child, in the doctor’s opinion, but the woman had refused a caesarean and blood transfusions on religious grounds. In Maydun, the judge said that the state’s interest in protecting "innocent third parties" (unborn children) may override the interest in
bodily integrity. Matters in the US came to a head with the June, 1987, decision to force an unwanted caesarean on a 27-year-old woman, 26 weeks pregnant, who was dying of cancer. She, her husband, and her parents were wholly opposed to the operation and her regular doctor refused to do it. The baby died within hours and the mother died 2 days later in the bitter knowledge that her dying wishes had been disregarded. The parents appealed, arguing that the operation had violated their daughter’s bodily integrity, and they were supported by womens’ and religious groups, the American Medical Association, and the American Civil Liberties Union. The Appeals Court in Washington, DC, agreed to hear the case (the family also sued the George Washington University Hospital) and on April 26, 1990, it decided by 7 to 1 that a pregnant woman may not be ordered to undergo a caesarean section to save her fetus. The leading judgment did not rule out all possibility of the courts’ overriding the wishes of a pregnant woman; a conflicting state interest may be so compelling that the patient’s interest must yield but "we anticipate that such cases will be extremely rare and truly exceptional". In April, 1987, a Family Court judge in Ontario, Canada, awarded 3 months temporary custody of a 38-week fetus to the Children’s Aid Society and had the mother-to-be compulsorily admitted to hospital. He argued that there was a substantial risk to the unborn child’s health and safety. The mother was refusing medical assistance despite severe abdominal pains, she was sleeping rough, and her attitude "was not conducive to the safe and healthy delivery of the child". It is easy to see how the intervention could be extended to include women who drink too much, take drugs, smoke, drive dangerously, eat unwisely, have violent partners, or live in unsafe areas. English law has always been clear that the fetus has no independent legal status and its interests are not equal to those of the carrying mother-and it should remain that way.
Diana Brahams 1. Brahams D. Fetus
as
ward of court? Lancet 1988; i: 369.
Conference Health and environment On Oct 10 and 11, an unusually warm and wet Cambridge, Massachusetts, was host to over 700 participants (150 or so had been expected) in a Harvard School of Public Health symposium on Human Health and the Environment: the Medical Consequences of Environmental Degradation. This was sponsored by Physicians for Social Responsibility and the Massachusetts Institute of Technology, along with the UN Environment Programme, and MEDACT, among others, and it was directed by Eric Chivian. To maintain the security of our material (notably mineral) wealth we make war, sometimes with drastic ecological consequences, but provide little defence for our biological wealth, explained Noel Brown, director of the North American office ofUNEP. 77% of carbon emissions come from the combustion of fossil fuels, the product of photosynthesis from atmospheric CO2 long ago, 23% is from the destruction of timber, explained Henry Kendall, 1990 Nobel laureate in physics. With a "business as usual" scenario, carbon emissions will rise from the current 5-6 billion metric tons (gigatons) (plus 1-2 from deforestation) to over 25 gigatons by the middle of the next century. Atmospheric CO2 has already increased by 25% since the middle of the 19th century, having been stable for thousands of years before that. Henry Kelly of the US Congressional Office of Technology Assessment (OTA) calculated that energy efficiency, with new technology and structural changes (eg, altered building designs and use of more daylight), could halve carbon emissions; the rest depends on harnessing renewable energy sources. 15 % of one south-west US State, if covered with photovoltaic panels could generate the combined electricity needs of all the other states. 81 million hectares of marketable crops also used as biomass could supply energy for all US vehicles and one-third of utility demands. Stored H2 or methanol/ethanol conversion to H2 are now within reach. Adjustment for the true price of energy, by an increase of 50%, based on costs of treating asthma and the loss of crops through acid rain, would make solar, wind, and biomass energy sources comparable and competitive with coal, oil, and gas combustion. Andrew Haines (London) explained how a warmer world could mean greater cardiovascular and cerebrovascular disease due to increased blood viscosity and platelet adhesion (though some adaptation might occur); and alterations in infectious diseases such as malaria and cholera. One molecule of chlorine, explained Alexander Leaf (Boston), remains in the stratosphere for 75-110 years and will break down 10* molecules of ozone. In 1990,100 million metric tons of chlorofluorohydrocarbons (CFCs) were released into the air. The Montreal Protocol of 1987 was revised in London in 1990 to encompass the complete phase-out of CFCs (and bromides) by the year 2000. The impact of ozone loss is now evident: for example, the incidence of melanoma rose by 83% between 1982 and 1989, and the increase in cataracts has been 18-fold in fishermen in Chesapeake Bay, Maryland. 65 000 synthetic chemicals have been produced by man; only 20% have been tested in animals. William G. Thilly (MIT) reviewed the biological techniques for assaying the mutagenicity of heavy metals and chemicals found in contaminated ground and surface water. In one area of
Medicine and the Law
coma, even if the necessary papers had been signed, since the
patient would not have the chance to change his mind while unconscious. The law would require that a second physician not directly taking part in the patient’s care agree with the attending physician that death is likely within six months. A patient advocate or ombudsman designated by the state. department of ageing must witness the signing of the directive by nursing-home patients. All patients must be counselled on the alternatives to dying. It is legal in California for a physician to withdraw life-support, including hydration, if a patient with terminal illness requests it. At present only in the Netherlands, where
.
euthanasia has been decriminalised but not written into law, physician-assisted death widely practised. Opponents of Proposition 161 fear that it goes too far down the "slippery slope" of circumstantial ethics. Aside from moral considerations, objections include the possibility of is
of illness, the absence of a requirement for witnesses for the final request or at the time of death, the absence of a requirement for psychological examination, and the absence of a waiting period between the request to die and the act itself. The American Civil Liberties Union, individual physicians, patients’ relatives, some senior citizen organisations, and the Hemlock Society (a pro-euthanasia society) are the measure’s chief advocates. Polls a year ago showed that Californians favoured, by about two to one, allowing physicians to help patients with terminal illnesses to die. An informal survey by the American Society of Internal Medicine of 1000 members revealed that 80 of the 402 who responded said that they had deliberately assisted in a patient’s death. Earlier this year the American Medical Association Council on Ethics and Judicial Affairs rejected "at this time" arguments favouring
misdiagnosis
physician participation. Harry Nelson
Germany: Keeping woman
a
brain-dead pregnant
"alive"
A decision to maintain the respiration and nutrition of an 18-year-old, 15-weeks-pregnant brain-dead woman is the subject of much controversy. The woman had been injured
accident. In similar cases in the UK, USA, or Finland, where healthy babies were eventually born, the women had been in more advanced stages of pregnancy. Nevertheless, the doctor in charge, Prof Johannes Scheele, decided that the mother, who is unmarried, should be kept "alive" until the child can be safely delivered by caesarean section. The woman’s parents (the father is unknown) disagreed at first but eventually changed their minds when the ethics committee of Erlangen University advised continuation of the pregnancy. Most of the medical experts who have given statements on the case have welcomed the decision of the Erlangen hospital. The president of the doctors’ Federal Council in Cologne, Dr Karsten Vilmar, denied the allegation that the mother is being abused as a "breeding device". Like Scheele and other doctors, Vilinar argues that the life of the child cannot be sacrificed. Theologians have been divided in their opinion but most have supported the decision, on grounds of the unborn child’s right to live. Others have argued that the brain-dead mother has a right not to be kept alive artificially. Politicians have shown mixed reactions. There might be a debate in the federal parliament soon.
in
a car
Annette Tuffs
Compulsory intervention during
pregnancy
On Oct 13 clinicians at a London hospital sought an emergency ruling from the Family Division of the High Court to override the refusal of a 30-year old mentally competent woman to undergo an emergency caesarean section. The woman ("Mrs S") had been in labour with her third baby since Oct 10. She was admitted to hospital on Oct 11 but refused caesarean delivery even though it was urgently indicated because the fetus was in a transverse lie with its elbow projecting through the cervix. There was a real risk of a rupture of the uterus and the operation offered the child its only chance of being bom alive. The woman was adamant; indeed she had opposed caesarean section in a previous confinement. She and her husband were "bomagain Christians". The hearing was in chambers before Sir Stephen Brown, president of, and the most experienced judge in, the Family Division. He had only a few minutes to decide. The judge, used to considering families as units, probably took into account the interests of the family as a whole (there were two young children) in effectively substituting his approval for the mother’s refusal. The judge’s decision, whilst intended to be humane and pragmatic, looks to me to be doubly flawed. Did the court have any jurisdiction to override the mother’s refusal and why did he allow the interests of the unborn child greater weight than those of the mother? This decision should be appealed against since it threatens to set a dangerous precedent for pregnant women who do not comply with their doctor’s choice of treatment or who are perceived not to be acting in the interests of their unborn child. Of course, all that the judge said was that the procedure would in the circumstances be lawful. He did not compel the woman to have the operation. Unless the woman was under sedation it is difficult to see how compulsion would have been possible in the face of her continued refusal. According to Margaret Puxon (qualified as a barrister and an obstetrician), writing in The Times of Oct 19, the woman put up no further resistance. In another case heard last July in the Court of Appeal the Master of the Rolls, Lord Donaldson, said that an adult with no mental incapacity had an absolute right to choose whether to consent to treatment (blood transfusion in this instance) or refuse it. That right existed irrespective of the reasons for making a particular choice. If a patient has the required capacity doctors were bound by the patient’s decision but if not they must do whatever they believed to be in the patient’s best interests. In "T" capacity was an issue in the court’s decision that the treatment would in those circumstances be lawful but in my view that earlier case (which I discussed on Aug 1, p 297) provides no scope or jurisdiction for Sir Stephen Brown lawfully to override S’s wishes. She had the full mental capacity and maturity to consent to or to refuse life-saving treatment. In In re F (in utero)the Court of Appeal dismissed an appeal against the refusal of a judge to make the unborn child (at term) of a mentally disturbed woman a ward of court. There was no jurisdiction. The woman’s lifestyle was thought to be putting the life of her unborn child at serious risk. The local authority, which had made the application, argued that the court should not be averse to extending wardship where a viable child was at risk. That argument was
wholly rejected.
1030
In the appeal in Fl one judge said that to accept jurisdiction would have created conflict between the legal
interests of the mother and those of the unborn child. Another judge said that the only purpose of extending the law’s jurisdiction to include the fetus would be to control the mother’s actions. Taking matters to extremes, a court faced with saving a baby’s life or its mother’s would surely have to protect the baby. The cautious attitude adopted by the Court of Appeal in F should be contrasted with the interventionism of Sir Stephen Brown’s decision. In the United States the courts have gone even further down the route of interventionism, for a time anyway. The trend began with Jefferson vs Griffin Spalding County Hospital and the 1986 decision in Maydun where the judge ordered a hospital to protect the fetus, including a caesarean section if necessary, despite refusal by the mother. In Jefferson (a case of complete placenta praevia) a caesarean section would have an almost 100% chance of a successful outcome for both mother and child, in the doctor’s opinion, but the woman had refused a caesarean and blood transfusions on religious grounds. In Maydun, the judge said that the state’s interest in protecting "innocent third parties" (unborn children) may override the interest in
bodily integrity. Matters in the US came to a head with the June, 1987, decision to force an unwanted caesarean on a 27-year-old woman, 26 weeks pregnant, who was dying of cancer. She, her husband, and her parents were wholly opposed to the operation and her regular doctor refused to do it. The baby died within hours and the mother died 2 days later in the bitter knowledge that her dying wishes had been disregarded. The parents appealed, arguing that the operation had violated their daughter’s bodily integrity, and they were supported by womens’ and religious groups, the American Medical Association, and the American Civil Liberties Union. The Appeals Court in Washington, DC, agreed to hear the case (the family also sued the George Washington University Hospital) and on April 26, 1990, it decided by 7 to 1 that a pregnant woman may not be ordered to undergo a caesarean section to save her fetus. The leading judgment did not rule out all possibility of the courts’ overriding the wishes of a pregnant woman; a conflicting state interest may be so compelling that the patient’s interest must yield but "we anticipate that such cases will be extremely rare and truly exceptional". In April, 1987, a Family Court judge in Ontario, Canada, awarded 3 months temporary custody of a 38-week fetus to the Children’s Aid Society and had the mother-to-be compulsorily admitted to hospital. He argued that there was a substantial risk to the unborn child’s health and safety. The mother was refusing medical assistance despite severe abdominal pains, she was sleeping rough, and her attitude "was not conducive to the safe and healthy delivery of the child". It is easy to see how the intervention could be extended to include women who drink too much, take drugs, smoke, drive dangerously, eat unwisely, have violent partners, or live in unsafe areas. English law has always been clear that the fetus has no independent legal status and its interests are not equal to those of the carrying mother-and it should remain that way.
Diana Brahams 1. Brahams D. Fetus
as
ward of court? Lancet 1988; i: 369.
Conference Health and environment On Oct 10 and 11, an unusually warm and wet Cambridge, Massachusetts, was host to over 700 participants (150 or so had been expected) in a Harvard School of Public Health symposium on Human Health and the Environment: the Medical Consequences of Environmental Degradation. This was sponsored by Physicians for Social Responsibility and the Massachusetts Institute of Technology, along with the UN Environment Programme, and MEDACT, among others, and it was directed by Eric Chivian. To maintain the security of our material (notably mineral) wealth we make war, sometimes with drastic ecological consequences, but provide little defence for our biological wealth, explained Noel Brown, director of the North American office ofUNEP. 77% of carbon emissions come from the combustion of fossil fuels, the product of photosynthesis from atmospheric CO2 long ago, 23% is from the destruction of timber, explained Henry Kendall, 1990 Nobel laureate in physics. With a "business as usual" scenario, carbon emissions will rise from the current 5-6 billion metric tons (gigatons) (plus 1-2 from deforestation) to over 25 gigatons by the middle of the next century. Atmospheric CO2 has already increased by 25% since the middle of the 19th century, having been stable for thousands of years before that. Henry Kelly of the US Congressional Office of Technology Assessment (OTA) calculated that energy efficiency, with new technology and structural changes (eg, altered building designs and use of more daylight), could halve carbon emissions; the rest depends on harnessing renewable energy sources. 15 % of one south-west US State, if covered with photovoltaic panels could generate the combined electricity needs of all the other states. 81 million hectares of marketable crops also used as biomass could supply energy for all US vehicles and one-third of utility demands. Stored H2 or methanol/ethanol conversion to H2 are now within reach. Adjustment for the true price of energy, by an increase of 50%, based on costs of treating asthma and the loss of crops through acid rain, would make solar, wind, and biomass energy sources comparable and competitive with coal, oil, and gas combustion. Andrew Haines (London) explained how a warmer world could mean greater cardiovascular and cerebrovascular disease due to increased blood viscosity and platelet adhesion (though some adaptation might occur); and alterations in infectious diseases such as malaria and cholera. One molecule of chlorine, explained Alexander Leaf (Boston), remains in the stratosphere for 75-110 years and will break down 10* molecules of ozone. In 1990,100 million metric tons of chlorofluorohydrocarbons (CFCs) were released into the air. The Montreal Protocol of 1987 was revised in London in 1990 to encompass the complete phase-out of CFCs (and bromides) by the year 2000. The impact of ozone loss is now evident: for example, the incidence of melanoma rose by 83% between 1982 and 1989, and the increase in cataracts has been 18-fold in fishermen in Chesapeake Bay, Maryland. 65 000 synthetic chemicals have been produced by man; only 20% have been tested in animals. William G. Thilly (MIT) reviewed the biological techniques for assaying the mutagenicity of heavy metals and chemicals found in contaminated ground and surface water. In one area of
