Thursday, 22 March 2018

Bill to ensure conscience rights for medical practitioners to receive Committee Stage tomorrow

The Free Conscience Campaign has just put out the following press release.

Baroness O’Loan’s Conscientious Objection (Medical Activites) Bill will go to a Committee Stage in the House of Lords tomorrow (Friday 23 March).

The Bill will clarify the law to ensure conscience protections are in place for medical practitioners to protect them from discrimination, enabling them to fully participate in their chosen professions and care for patients to the best of their ability. The Bill will give the right to withdraw from end of life treatment, activities under the Human Fertilisation and Embryology Act and abortion.

Under the existing law, some medical professionals are not protected from unjust discrimination. GPs, as well as many nurses, midwives, pharmacists, and other medical professionals have limited statutory conscience protection. As a result, some areas of the healthcare profession are becoming increasingly difficult places to work for those with certain deeply-held moral, philosophical or religious views. Not only is this discriminatory, it could also mean healthcare professions will become increasingly less diverse, inclusive, and representative of the views of the general population.

An Inquiry in 2016 found that some doctors and nurses face discrimination in the workplace due to their conscientious objection to practices that they believe end a human life.

The conscience rights of midwives were also undermined by a 2014 Supreme Court judgment, which held that the conscience provision in the Abortion Act 1967 did not allow them to refuse to engage in aspects of abortion such as telling someone else that have to carry out an abortion.

A recent ComRes poll found that a majority of the public oppose forcing doctors to participate in abortion procedures against their will if they want to remain in their profession.

The Free Conscience campaign, which has been launched to support the Bill, is calling on the public to visit their website (www.freeconscience.org.uk) where they can write to their MP, asking them to support the Bill.

Baroness O’Loan said:

“No one should be coerced by the risk to their careers into violating their conscience, and it is plainly inconsistent with the principles of equality legislation to exclude whole sections of society from areas of medical employment simply because of their moral beliefs. Reasonable accommodation of conscientious objection is a matter both of liberty and equality: of individual freedom and social inclusion. It is promising to see support from across the country for the Bill”.

Mary Doogan, one of the two midwives in the Greater Glasgow Health Board v Doogan & Anor case, and spokesperson for the www.freeconscience.org.uk campaign said:

“It’s reassuring to see this Bill is gaining momentum and continues to progress through Parliament. This Bill will restore the conscience rights of those who work tirelessly day in and day out to serve and care for others. As medical professionals, we owe patients not only our efforts but also our best moral judgement, and this Bill would allow us once again to practise with the greatest integrity. I fully support this important legislation and commend it to Parliament and the wider public”.

Dr. Mary Neal, leading conscience expert, senior lecturer at Strathclyde University and spokesperson for the www.freeconscience.org.uk campaign said:

“I am heartened to see that this Bill is progressing through Parliament, as it is necessary and much needed. There is a pressing need for statutory conscience rights which actually protect those who need protection. The current law fails to do this, so this Bill is a necessary and timely step.”

Friday, 26 January 2018

Baroness O’Loan’s Conscientious Objection (Medical Activities) Bill deserves our full support

As Christians, we are called to respect the governing authorities as they are instituted by God himself (Romans 13:1,2). But are there limits? What should we do if they try to force us to do something we believe is wrong?

The ‘Free Conscience’ campaign, launched this week with the backing of many Christian groups, supports Baroness O’Loan’s Conscientious Objection (Medical Activities) Bill which passed its second reading (debate stage) in the House of Lords on Friday 26 January. It is now set for a Committee of the Whole House where amendments can be submitted and debated. If it then passes a third reading it will pass to the House of Commons.

The bill aims to strengthen the conscience rights of healthcare professionals who believe it would be wrong to be involved in three specific activities – abortion, activities under the Human Fertilisation and Embryology Act 1990 (like embryo research or egg donation) and withdrawal of life-preserving treatment.

Currently, the law offers general conscience protection. The Equality Act 2010 includes religion and belief as two of nine ‘protected characteristics’ and the Human Rights Act 1998, which brought the European Convention of Human Rights (ECHR) into UK law, states that ‘everyone has the right to freedom of thought, conscience and religion’ (article 9). But these rights are limited.

When it comes to specific protections the situation is much less clear and statute law currently only applies to abortion and activities under HFE Act. For abortion its scope is very limited.

In 2014 the Supreme Court ruled that two Glasgow midwives, who were working as labour ward coordinators, could not opt out of supervising abortions. It said that the conscience clause in the Abortion Act 1967 only applied to those who were directly involved in abortion and not to those involved in delegation, planning, supervision and support. This left many health professionals vulnerable to coercion.

Overall 25 peers spoke in the debate – 13 for and 11 against with the government responding. Labour health spokesperson Baroness Thornton made it clear that the Labour party would oppose the bill and Liberal Democrat Baroness Barker said that most of her party colleagues shared her strong opposition also. The government itself will allow a conscience vote.

The major arguments against the bill were that it expanded the scope of the conscience clause to cover health professionals only indirectly involved in the activity concerned and expanded the number of activities protected. This, they claimed, would hinder access to patient care. Several peers also suggested that there should be a duty for professionals claiming conscience protection to refer the patient to someone who would comply.

Supporters of the bill will need to address these specific concerns convincingly at committee stage if the bill is to proceed.

As Christian citizens we must respect those who rule over us but the Bible is equally clear that if discriminatory laws are passed, and obeying such laws involves disobeying God, then our higher duty is to obey God. If you love me you will obey me, says Jesus (John 14:15).

When the King of Egypt ordered the Hebrew midwives to kill all male Hebrew children they refused to do so and God commended and rewarded them (Exodus 1:15-22).

A fiery furnace did not stop Shadrach, Meshach and Abednego refusing to bow down to the image of the king and a lions’ den did not deter Daniel from persisting with public prayer (Daniel 3:16-18, 6:1-10).

When Peter and John were commanded by the Jewish authorities not to preach the Gospel they replied, 'We must obey God rather than men' and continued to do it (Acts 5:29).

Of course, we should also do our best to oppose the passing of laws which seek to criminalise normal Christian behaviour which is what Baroness O’Loan’s bill is all about. We can thank God that in Britain we still have the democratic right to participate in shaping public policy.

Freedom of conscience is not a minor or peripheral issue and it is not only Christians who are affected. It goes to the heart of healthcare practice as a moral activity. Current UK law and professional guidelines respect the right of doctors to refuse to engage in certain procedures to which they have a conscientious objection.

The right of conscience helps to preserve the moral integrity of the individual clinician, preserves the distinctive characteristics and reputation of medicine as a profession, acts as a safeguard against coercive state power, and provides protection from discrimination for those with minority ethical beliefs.

It is worth fighting for. Christians can get involved through the Free Conscience website which will tell you how to contact your MP and encourage them to support the bill. But it will first need to clear the House of Lords.

Sunday, 21 January 2018

My big 60th birthday challenge - running the London Marathon for Sightsavers

I'm running the London Marathon on 22 April this year for Sightsavers because they excel in preventing and treating blindness. 

If you’d like to support me my donations page is here.

As a general surgeon who has served in a Kenyan mission hospital I've witnessed first-hand the devastating damage that blindness can do to individuals and communities but also realise how effective, and relatively cheap, preventive and curative measures are. 

As CEO of Christian Medical Fellowship I'm deeply committed to healthcare in the developing world.

I turn 60 this February so would like to celebrate that by running to support this great charity. This will be my sixth London marathon since my wife and kids told me (with good justification) in my mid-40s that I was going to seed so I am indebted to them that I can still run.

In five previous marathons between 2004 and 2014  friends and colleagues have generously helped me to raise over £25,000 for Whizz Kidz, Alzheimer's Society, Down's Syndrome, Help the Hospices and Christian Blind Mission.  

Would you partner with me in raising another £5,000 to help Sightsavers protect and restore sight in developing world communities? 

Donating through JustGiving is simple, fast and totally secure. 

Wednesday, 17 January 2018

Conway assisted suicide case – autonomy is not absolute and this latest appeal should be dismissed

Watch my previous Sky News interview on the Conway case here and listen to my radio interviews on BBC Shropshire and Coventry.

A 68-year-old Shropshire man with motor neurone disease (MND) who wants help from doctors to kill himself has been granted permission to appeal an earlier decision rejecting his case. 


The judgement (see here) was handed down today (18 January 2018) following an oral hearing at the Royal Courts of Justice. 

Noel Conway is backed by the former Voluntary Euthanasia Society (now rebranded Dignity in Dying (DID)), whose lawyers have argued that the current blanket ban on assisted suicide under the Suicide Act is incompatible with his rights under section 8 of the Human Rights Act (respect for private and family life).

Following a four-day hearing in the high court last July three senior judges dismissed Conway’s case on 5 October (judgement here). They summarised their conclusions as follows:  

'It is legitimate in this area for the legislature to seek to lay down clear and defensible standards in order to provide guidance for society, to avoid distressing and difficult disputes at the end of life and to avoid creating a slippery slope leading to incremental expansion over time of the categories of people to whom similar assistance for suicide might have to [be] provided... we find that section 2 (of the Suicide Act 1961) is compatible with the Article 8 rights (private and family life) of Mr Conway. We dismiss his application for a declaration of incompatibility.'

The Divisional Court refused permission to appeal, so Mr Conway then filed an application in the Court of Appeal seeking permission directly. This has now been granted.

Conway's case is substantially the same as that of Tony Nicklinson and Paul Lamb in 2014, except that his condition is terminal.

There have been over ten attempts to legalise assisted suicide through British Parliaments since 2003, all of which have failed. The last of these was the Marris Bill in 2015 which was defeated by an overwhelming majority of 330 to 118 in the House of Commons amidst concerns about public safety.

Frustration at their lack of success in parliament has led DID and other campaigners to pursue their agenda through the courts.

In the last hearing Humanists UK (formerly the British Humanists’ Association (BHA)) intervened on the side of Conway and Not Dead Yet UK and Care Not Killing (CNK) on the side of the defendant.

A change in the law is opposed by every major disability rights organisation and doctors' group, including the BMA, Royal College of GPs and the Association for Palliative Medicine, who have looked at this issue in detail and concluded that there is no safe system of assisted suicide and euthanasia anywhere in the world.

Laws in the Netherlands and Belgium that were only meant to apply to mentally competent terminally ill adults, have been extended to include the elderly, disabled, those with mental health problems and even non-mentally competent children.

While in Oregon, the model often cited by those wanting to change the law, there are examples of cancer patients being denied lifesaving and life-extending drugs, yet offered the lethal cocktail of barbiturates to end their own lives.

Article 8 of the Human Rights Act 1998 (Right to respect for private and family life) states (8(1)) that ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

However, this right is not unlimited but is qualified in 8(2). Following this principle CNK and others argued that a blanket prohibition on euthanasia and assisted suicide was ‘necessary in a democratic society in the interests of public safety for the prevention of disorder or crime, for the protection of health or morals, and for the protection of the rights and freedoms of others.’

They also argued that to pursue this case in court was institutionally inappropriate given that parliament has repeatedly, rigorously and comprehensively considered this issue and decided not to change the law.

Legalising assisted suicide and/or euthanasia is dangerous because any law allowing either or both will place pressure on vulnerable people to end their lives in fear of being a burden upon relatives, carers or a state that is short of resources. Especially vulnerable are those who are elderly, disabled, sick or mentally ill. The evidence from other jurisdictions demonstrates that the so-called ‘right to die’ may subtly become the ‘duty to die’.

The legalisation of assisted suicide and/or euthanasia is uncontrollable in practice because any law allowing either or both will be subject to incremental extension. We have observed in jurisdictions like Belgium and the Netherlands that over time there is an expansion of categories to be included beyond those originally intended and without any further change in the law: a shift from terminal conditions to chronic conditions, from physical illnesses to mental illnesses and from adults to children.

The essential problem is that the two major arguments for euthanasia - autonomy and compassion - can be applied to a very wide range of people. This means that any law which attempts to limit them, for argument’s sake to mentally competent people who are terminally ill, will in time be interpreted more liberally by sympathetic or ideologically motivated ‘assisters’ and may also be open to legal challenge under equality legislation on grounds of discrimination.

The legalisation of assisted suicide and/or euthanasia is also unnecessary because requests for euthanasia or assisted suicide are extremely rare when people’s physical, social, psychological and spiritual needs are adequately met. The overwhelming majority of people with terminal illnesses, including those with MND, want ‘assisted living’ not ‘assisted suicide’.

The safest law is one like Britain’s current law, which gives blanket prohibition on all assisted suicide and euthanasia. This deters exploitation and abuse through the penalties that it holds in reserve, but at the same time gives some discretion to prosecutors and judges to temper justice with mercy in hard cases.

Leaving the law as it is will mean that some people who desperately wish help to end their lives will not have access to such a service. But part of living in a free democratic society is that we recognise that personal autonomy is not absolute. And one of the primary roles of government and the courts is to protect the most vulnerable even sometimes at the expense of not granting liberties to the desperate.

This issue has been considered exhaustively by parliaments and courts in the UK and is settled. While having every sympathy with Mr Conway's personal plight the consequences for society are too dangerous and far-reaching. I hope that the Court of Appeal will stand by the previous high court judgement and dismiss his case. 

Friday, 12 January 2018

A Christian framework for medical ethical decision-making

How should Christians make ethical decisions? Should we use secular decision-making systems that are deontological (rule-based) or consequentialist (outcome based)? Or can we derive an ethical framework from the Bible?

Christians are called to imitate God (Ephesians 5:2), imitate Christ (1 Corinthians 11:1) and to walk as Christ walked (1 John 2:6). We are to be holy because God himself is holy (Leviticus 19:2; I Peter 1:16).

We might say that this is impossible but we forget three things – that through Jesus death and resurrection God has granted us repentance (Acts 5:31), given us a new nature (2 Corinthians 5:17) and placed the Holy Spirit within in us to empower us to live lives which are pleasing to him (Romans 8:9-11). This is why it is possible for us both to ‘put off’ ungodly thoughts and actions and to ‘put on’ godly attitudes and behaviours (Ephesians 4:22-24).

So how are we then to make Christ-like ethical decisions? I would suggest that doing so involves four elements: sharing the mind of Christ, holding the commands of Christ, showing the character of Christ and carrying the cross of Christ.

Let’s consider each of those in turn.

Sharing the mind of Christ

To share the mind of Christ, we first need to have a Christian worldview. We need to think about the world in the way that Jesus does and in the way the Bible teaches; in terms of creation, fall, redemption and future hope.

We are created by God in his image for an eternal relationship with him. But we have also, individually and collectively, fallen from grace. We are sinful and this sin has every aspect of our beings; our bodies, our emotions, our relationships, and our moral decision making. We are masterpieces created by the grand master, but we are flawed masterpieces in need of redemption.

God has initiated his great plan of redemption through his dealings with Israel and ultimately through the sending of his Son Jesus Christ, through whose death and resurrection we can be reconciled to God through repentance and faith.

We now have a hope that is certain, guaranteed by God himself, that we can have confidence for the day of judgment because of what Jesus has done for us, and will live together with God and fellow believers forever in God’s presence in a new heaven and new earth.

Sharing the mind of Christ involves having that linear view of history and that confidence about the future. 

Holding the commands of Christ

Holding the commands of Christ means being guided by his word in the way we make ethical decisions. Jesus said that if we love him we will obey his comands (John 14:15, 15:14). But what are his commands?

What starts in the Old Testament as the Old Covenant, the Ten Commandments and the 613 laws of the Pentateuch is, of course, a shadow prophetically pointing to the person of Christ, who will be the only one who is able to fulfil them (Colossian 2:17; Hebrews 10:1).

In the New Testament, specifically in the Sermon on the Mount (Matthew 5-7), we see Christ going beyond the mere external legalities of Old Testament law to the very spirit of love that underlies it. 

He says (Matthew 22:37-40) that the most important commands in the law are to love God with all one’s heart, soul, mind and strength (Deuteronomy 6:5) and to love one’s neighbour as oneself (Leviticus 19:18).

Jesus also gave his disciples a new commandment, to love one another as he had loved them (John 13:34,35).

But we are told that all Scripture is inspired (literally breathed) by God and profitable for teaching, correction, reproof and training in righteousness (2 Timothy 3:16,17). So, we need to work hard at deducing biblical ethical principles to apply to today’s ethical dilemmas.

Here are some key biblical principles:

Stewardship: we are given skills and abilities, not in order to exploit the earth, but to be its vanguards and its stewards, caring for the earth and for each other in the same way that God would care (Genesis 1:26). We are God’s delegated vice-rulers. This obviously applies to the scientific knowledge and technology that he has given to us. In fact, we see the beginnings of science, in Adam naming the animals (taxonomy) (Genesis 2:19,20) and technology with Jubal and Tubal-Cain developing musical instruments and metal tools (Genesis 4:21,22).

The sanctity of life: every human being is precious in God’s sight because every human being is made in the image of God (Genesis 1:27). It is because of this that human beings cannot be unjustly killed (Exodus 20:13; Deuteronomy 5:17). God will hold us accountable for the shedding of innocent blood (Genesis 9:5,6).

Chastity: sexual faithfulness. As we learn, ultimately, in the New Testament, the pattern of ‘one man, one woman, for life’ (Genesis 2:24) is a beautiful picture or metaphor of Christ’s marriage with the Church (Ephesians 5:31,32) and points, eschatologically, to the New Jerusalem, and the new Heaven and the new Earth (Revelation 22:17).

Veracity: the telling of truth (Exodus 20:16; Leviticus 19:11; Deuteronomy 5:20), because God is truthful and tells no lies (Numbers 23:19; Titus 1:2).

Justice: both at an individual and corporate level, so that vulnerable people are protected from exploitation. So much of the Old Testament law, of course, is about guarding the weak (Proverbs 31:8,9).

Grace: giving people what they don’t deserve (Matthew 5:43-48).

Mercy: not giving people what they do deserve, so that we are called to share the mind of Christ, both from a worldview and ethics (Micah 6:8).

Having the mind of Christ and keeping the commands of Christ are crucial, but we are also called to show the character of Christ because Christian ethics is not just about what we do, but also about how we do it. 

Showing the character of Christ

This brings us back to Plato’s idea that in order to act virtuously, one has to be a virtuous person. One can only act virtuously, in a Christian sense, by being born again, and then transformed by the Holy Spirit so that one develops the fruit of the Holy Spirit: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, self-control (Galatians 5:22,23).

It is one thing to know the right thing to do. It is something else altogether to have the character to do it.

Standing firm in making correct ethical decisions requires great wisdom, patience, perseverance and courage.

Carrying the cross of Christ

Carrying Christ’s cross means two things in a world hostile to Christian faith and values. It means, first of all, that we are prepared to fulfil the ‘Law of Christ’.

The Law of Christ is an interesting concept. It is mentioned twice in the New Testament. The first mention comes in 1 Corinthians, where Paul says, ‘I am not under the law, but I am under Christ’s law’ (1 Corinthians 9:21). Then, in Galatians, we have the command: ‘Bear one another’s burdens and so fulfil the law of Christ’ (Galatians 6:2).

This lines up with Christ’s words to his disciples at the Last Supper: ‘A new commandment I give to you: love one another as I have loved you’ (John 13:34,35).

If you like, it is the very opposite of the Darwinist ethic of the weak being sacrificed for the strong. It is instead the strong making sacrifices for, or laying down their lives for, the weak.

This is the guiding ethic for everything we see in the New Testament. For example, with the ethics of giving: ‘Christ, who was rich, became poor so that you might be rich’ (2 Corinthians 8:9). Why? In order that we ourselves might then become poor so that we can make others rich. We are called to emulate Christ in making sacrifices, or laying down our lives, for the weak (Romans 5:8).

Additionally, part of carrying the cross in a society hostile to Christian faith and values is that we are prepared to speak and act in godly ways, even when it is tremendously costly to do so; in other words, even when it leads to great opposition. This is part of the cross.

Christ bore the burdens of others and carried out great acts of compassion of healing and love. But he wasn’t crucified for these acts of compassion. It was actually his words that led to his death (John 7:7). It was when he spoke unpalatable truth about his own identity (John 5:18) and when he spoke prophetically about the nation in which he was placed (Matthew 26:63-68). That was when persecution really came to bear.

As Christ’s people living in this age we are called to carry the cross of Christ (Matthew 16:24; Luke 9:23, 14:27). That involves both sacrificial service and also faithfully speaking the truth, regardless of the cost, whether it is preaching the Gospel or speaking moral truth in the public sphere.

So there we have it – we can be imitators of Christ by having his mind, holding his commands, showing his character and carrying his cross.

Saturday, 6 January 2018

Some Big Public Policy Challenges in Bioethics we can expect in 2018

As we look forward to the challenges that 2018 will bring I am struggling to think of a time when we have faced more major public policy challenges in bioethics in so many areas all at once. 

This is perhaps inevitable given the march of secular humanism through parliament, the courts and institutions.

Here is some background on the five major threats currently looming.

1.       Assisted Suicide

Given that 11 attempts in British Parliaments to change the law to allow assisted suicide or euthanasia have failed since 2003 our opponents, not surprisingly, have shifted their attention to the courts in an attempt to change the law through the back door.

Conway, who has motor neurone disease and is seeking assisted suicide, lost his case in which CNK Alliance intervened in the Divisional Court in October, and his appeal to the High Court was denied. He now plans to appeal directly to the Court of Appeal. See my previous comments on the case here.

Omid, who has multiple system atrophy and is also seeking assisted suicide, had a preliminary hearing on 21 November and has appealed to the judges to allow a full enquiry in which all witnesses can be cross-examined along the lines of the Carter case in Canada. We await their decision.

There have been three worrying judgements by the Court of Protection in the last few months (see here and here). Formerly all patients with Permanent Vegetative State (PVS) and Minimally Conscious State (MCS) had to go to court for appeals about the removal of artificial nutrition and hydration (ANH), but now there are moves to withdraw ANH from these and less severely brain-damaged patients who are not imminently dying without going to court provided that both doctors and relatives agree that it is in the patient’s ‘best interests’. The Official Solicitor will appeal these judgements in the Supreme Court on 29 January. My fuller review is here.

A recent case involving a pharmacist (Desai) who helped his father end his life with a morphine and insulin overdose resulted only in a nine-month suspended sentence. The general trend is toward fewer prosecutions and convictions for assisted suicide and the DPP’s prosecution criteria on assisted suicide are being interpreted very liberally.

2.       Abortion

The ‘We Trust Women’ campaign (masterminded by Ann Furedi of BPAS) is gaining momentum and now has the support of the RCOG, BMA and RCM. Whilst there is no bill currently before Parliament (and none likely to appear before 2019) proabortion activists may seek to amend a government health bill to achieve their aim of completely decriminalising abortion (see my previous posts here, here, here and here).

This will most likely involve repealing Sections 58 and 59 of the Offences Against the Person Act 1861 (OAPA) which make procuring an abortion for oneself or others a crime punishable by life imprisonment. The effect would be to make abortion legal for any reason up to 28 weeks and, if the Infant Life (Preservation Act) 1929 is repealed too, up to birth.

Were this to succeed the Abortion Act 1967 with all its provisions (two doctors, licensed premises, reporting, conscience clause etc) would fall as it is contingent upon the OAPA.

There are also calls to relax the abortion laws in Northern Ireland, Ireland and the Isle of Man.

3.       Organ transplantation

Geoffrey Robinson MP wants to bring in an opt-out system for organ donation in England. His Organ Donation (Deemed Consent) Bill is due its second reading (debate stage) on 23 February 2018.

In 'deemed' (presumed) consent, a person, unless he or she specifically 'opts out', is assumed to have given consent to the harvest of their organs after death, even if their wishes are not known. Although relatives may be consulted (a so called 'soft' opt out), to ascertain any wishes of the deceased expressed before death, their views can still be overruled by the state should they decide against transplantation. Wales already operates an opt-out system for organ donation and it is likely that Scotland will follow.

Robinson's private member's bill may be overtaken by a new government bill seeking to achieve the same thing. The government has just launched a consultation, closing on 6 March 2018, which proposes 'changing the current law on organ donation consent whilst also allowing people to opt out if they want to'. Both Theresa May, the prime minister and Jeremy Corbyn, the leader of the opposition have signalled support and a Daily Mirror Campaign has built support.

However, evidence for the claim that an opt-out system will increase transplants is still lacking. In Wales, where an opt-out system was introduced in December 2015, there has been a small dip in the number of deceased donors. The Nuffield Council advised in October that robust evidence is needed before any change to the law is considered. But it is also unethical.

Donation must be without coercion and the final decision must lie with the family based on what the person would have wanted, if this is known. Organs are not the property of the state and must not be 'taken' without permission, however needy any prospective recipient may be (see previous CMF articles and blog posts here, here and here)

4.       Transgender

Under the Gender Recognition Act 2014, to change gender legally, one must have lived in one’s chosen gender for two years, be 18 or over, have a medical diagnosis of gender dysphoria and appear before a gender recognition panel.

Justine Greening, the Secretary of State for Education, Women and Equalities, wants to allow people to change their gender purely based on self-declaration without having to see a doctor nor appear before a gender recognition panel.

A consultation toward this end has been announced and is to be launched shortly. A Scottish consultation is already underway and closes on 1 March.

She has the support of both Theresa May and Jeremy Corbyn although there is now some resistance growing and recent reports suggest that Greening may be having second thoughts (see further comment here and here).

5.       Freedom of Conscience in healthcare

Currently there is statutory conscience protection for health professionals only for involvement in abortion and activities authorised under the Human fertilisation and Embryology Act. The scope of the former is restricted because of a Supreme Court judgement on the case of two Glasgow midwives.

Freedom of conscience for other activities (eg. Hormones for transgender, abortifacient contraceptives, PrEP, withdrawal of ANH etc) is covered only partially by equality legislation.

There were two significant victories on freedom of conscience last year. The General Pharmaceutical Council, which regulates Pharmacists and Pharmacies, modified new guidance which would have replaced a ‘right to refer’ with a ‘duty to dispense’, in response to protests from interest groups (see my previous comment here).

The Faculty of Sexual and Reproductive Health (FSRH), part of the RCOG, reversed regulations which denied those with conscience objections to some contraceptives, from obtaining its diplomas. This appeared to be in response to criticism by CMF.

These two wins underline the fact that conscience freedom depends on constant vigilance.

Baroness O’Loan’s Conscientious Objection (Medical Activities) Bill is to have its second reading in the House of Lords on 26 January 2018. Although this bill is much narrower in scope than we would have preferred (covering only abortion, IVF and related technologies and withdrawal of treatment) it has our support.

So, a busy year awaits. Watch this space for further developments. 

Thursday, 28 December 2017

Supreme Court to rule on whether doctors can remove food and fluids from brain-damaged patients without going to court

Should doctors be able to withdraw food and fluids from severely brain-damaged patients who are not imminently dying? And if so, in what circumstances?

The answer to these questions has changed dramatically as a result of recent decisions by the Court of Protection which are due to be appealed in the Supreme Court on 29 January 2018.

The case of Tony Bland in 1993 (who was in a permanent vegetative state (PVS) after being injured at the Hillsborough Stadium Disaster) established that clinically assisted nutrition and hydration (CANH) is a form of medical treatment that can be withdrawn in some circumstances.

In that case it was also held that, in England and Wales, prior court approval should be sought for the withdrawal of CANH in all such cases. This now also applies for patients in minimally conscious state (MCS).

A vegetative state is when a person is awake but is showing no signs of awareness; they may open their eyes, wake up and fall asleep at regular intervals and have basic reflexes; they're also able to regulate their heartbeat and breathing without assistance.

A person in a vegetative state doesn't show any meaningful responses, such as following an object with their eyes or responding to voices; they also show no signs of experiencing emotions.

Permanent vegetative state (PVS) is diagnosed if these features persist for more than six months if caused by a non-traumatic brain injury, or more than 12 months if caused by a traumatic brain injury. If a person is diagnosed as being in PVS, recovery is extremely unlikely but not impossible.

By contrast, somebody in a minimally conscious state (MCS) shows clear but minimal or inconsistent awareness and may have periods where they can communicate or respond to commands, such as moving a finger when asked.

Prof Derick Wade is one of the country's leading experts in this area, a consultant in neurological rehabilitation based in Oxford. He estimates there could be as many as 24,000 patients in the NHS in England either in a permanent vegetative state, or minimally conscious.

Patients with PVS and MCS are severely brain-damaged but they are not imminently dying and with good care can live for many years. But if CANH is withdrawn, then they will die from dehydration and starvation within two or three weeks.

In such cases, doctors can withhold food and liquid - if they consider there's no likelihood of improvement, and if the family agree. But to do that, they need to wait - six months for cases with brain injury caused by disease or a year in cases of traumatic injury (see diagnostic guidelines here).

Then the patient has to be assessed by a specialist unit, before being diagnosed as being in PVS or MCS. Then, the procedure is to seek permission from the Court of Protection to take out their feeding tube.

The applications are made by the local Clinical Commissioning Group (CCG) and usually cost around £50,000. Only about 100 such applications have been made in more than 20 years.

Two recent legal judgments have held that there is no requirement for treating clinicians to seek the court’s prior approval to withdrawing CANH for a patient in PVS or MCS where existing professional clinical guidance has been followed and where the treating team and those close to the patient are all in agreement that it is not in the patient’s ‘best interests’ to continue such treatment.

The Official Solicitor is contesting the second of these two judgements in the Supreme Court.

The first case concerned M, a woman who had suffered from Huntington's disease for 20 years and was now in MCS.  It was argued that it was in M's best interests not to continue to receive clinically assisted nutrition and hydration (CANH), with the consequence that she would die. 

The application was supported by M’s family, her clinicians, and an external specialist second opinion. At a public hearing on 22 June, Justice Peter Jackson made the orders requested, giving short reasons and reserving fuller judgment. On 24 July, CANH was withdrawn from M, who then received palliative care, and on 4 August she died. She was 50 years old at the time of her death. 

In his fuller judgement on the case on 20 September, which was widely reported in the press (see Guardian and Telegraph), Mr Justice Jackson said in future judges should not be required to make rulings in similar cases - where relatives and doctors were in agreement and medical guidelines had been followed.

The second case involved a 52-year-old man (Y), married with two adult children who in June 2017, suffered a cardiac arrest after a myocardial infarction (heart attack) as a result of coronary heart disease. It had not been possible to resuscitate him for well over ten minutes, resulting in severe cerebral hypoxia and causing extensive brain damage (See Guardian, Times (£) and full judgement (£)).

Mr Y had been in a prolonged disorder of consciousness since his cardiac arrest and, in July, was admitted to a regional hyper-acute rehabilitation unit under the control of the claimant NHS Trust. 

Two medical experts with extensive qualifications and experience in the field of neurological rehabilitation agreed that Mr Y was in a very low level of responsiveness, he had no awareness of self or his environment, and it was highly improbable that he would re-emerge into consciousness.

The clinical team and Mr Y's family, including his wife, Mrs Y, agreed that it would be in his best interests for clinically assisted nutrition and hydration (CANH) to be withdrawn, with the consequence that he would die within a period of two to three weeks.

The NHS Trust sought a declaration that there was no mandatory requirement to seek consent from the court to the withdrawal of CANH, which the court had upheld. However, the Official Solicitor has appealed this decision and, as noted above, the Supreme Court hearing is expected to take place on 29 January.

I was asked to comment at the time of the first hearing on 20 September and my words were later picked up by Life Site News.

I said that the court decision had set a dangerous precedent and should be appealed. Taking these decisions away from the Court of Protection removes an important layer of legislative scrutiny and accountability and effectively weakens the law.

This will make it more likely that severely brain-damaged patients will be starved or dehydrated to death in their supposed best interests and that these decisions will be more influenced by those who have ideological or financial vested interests in this course of action.

I think that the key issues legally and ethically separating right and wrong in end of life decisions are:

1.   What is the intention of this particular action or omission?

2.   We can say a treatment is futile (ie burden outweighs benefit measured in terms of cure/relief) but not that a life is futile

It seems to me that these recent decisions have been made with the intention of ending the life of a person who is not imminently dying because their life has been judged futile. This is a very dangerous precedent indeed.

Furthermore, there are still significant uncertainties about diagnosis and prognosis in both PVS and MCS. These have increased rather than decreased since the Bland case and this is why continued court endorsement of the withdrawal of life-sustaining nutrition and hydration in such cases is necessary. Well-intentioned people - relatives, carers and clinicians - often make mistakes about diagnosis/prognosis and accordingly, agreement between all of them about withdrawal of CANH is not adequate protection.

Life Site News noted that whilst starvation and dehydration certainly hasten death, this is not a painless procedure. In 2006, a British euthanasia activist gave up her own freely chosen attempt to starve to death after 19 days, saying it was too painful. ‘I would not wish what I have been going through on my worst enemy,’ Kelly Taylor said.

At the moment, because of the current policy of involving the court in all such cases, the number of cases we see are very few (fewer than 100 in over 20 years as noted above). But if the court were to be removed from the equation, this could very well lead to a huge escalation of cases, given how many people in Britain have either PVS or MCS.

Doctors are already moving in this direction as a recent article in the Journal of Medical Ethics argues. Furthermore, in the light of these recent court decisions, new interim guidance for health professionals in England and Wales has been issued by the BMA, Royal College of Physicians (RCP) and General Medical Council (GMC). They plan to publish new definitive guidance in May 2018 which will make this new direction official.

In their interim guidance they note however that it 'may need revision if a case concerning these issues is considered by the Supreme Court'.

This is now happening and we await the hearing with great interest.