Suicide woman allowed to die because doctors feared saving her would... http://www.telegraph.co.uk/news/health/6248646/Suicide-woman-allo...

Suicide woman allowed to die because doctors feared saving her would be
assault

Doctors allowed a young woman, Kerrie Wooltorton, to kill herself because she had signed
a living will that meant they could have been prosecuted if they intervened to save her
life.

Kerrie Wooltorton handed doctors a letter saying she Photo: ALBANPIX

By Rebecca Smith, Aislinn Laing and Kate Devlin

10:33PM BST 30 Sep 2009

Miss Wooltorton, 26, who was suffering depression over her inability to have a child, drank poison
at home and called an ambulance. However, she remained conscious and handed doctors a letter
saying she wanted medical staff only to make her comfortable and not to try to save her life.

Doctors said her wishes were abundantly clear and although it was a horrible thing there had
been no alternative but to let her die.

They feared they would be charged with assault if they treated her because they believed she
understood what she was doing and was mentally capable of refusing treatment.

It is thought to be the first time someone has used a living will to commit suicide. The documents
are more commonly associated with patients who are terminally ill and want to refuse treatment.

Miss Wooltortons family have since criticised the doctors, saying they should have intervened to
save her.

The case will revive the right to die debate days after new guidelines on assisted suicide were

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published, saying those who help terminally ill patients to die are unlikely to face prosecution unless
they stand to gain financially.

So-called living wills or advance directives allow patients to set out what treatment they do not
want should they become seriously ill. They were introduced following the 2005 Mental Capacity
Act.

The General Medical Council has told doctors that failure to comply with the directives could lead
to them being struck off.

Experts said that before the new laws came in, doctors faced with a similar case to Miss
Wooltortons would have been likely to insist the patient be treated.

Doctors debating the case online said her history of mental illness could cast doubt on her ability to
refuse treatment. Some argued it was not uncommon for people who attempt suicide to refuse
treatment, only to change their minds later.

Campaigners gave warning that living wills were not designed for patients who wanted to commit
suicide and questioned whether someone who had repeatedly tried to kill themselves had the
capacity to refuse treatment.

The inquest into Miss Wooltortons death heard that she had drunk the poison up to nine times in
the year before her death and each time doctors had flushed the toxins from her system.

She drew up her directive on Sept 15, 2007, stating in the document that she was 100 per cent
aware of the consequences of her actions and did not want to be treated.

Three days later she called an ambulance after drinking the poison at her flat in Norwich.

She was taken to the accident and emergency department of Norfolk and Norwich Hospital and
handed over her letter and also made her wishes clear verbally, the inquest was told.

The letter said that if she called for an ambulance it was not a plea for treatment, but because she
did not want to die alone and in pain. She lapsed into unconsciousness and died in hospital the next
day. William Armstrong, the Norfolk coroner, recorded a narrative verdict that did not blame the
hospital for her death. He stated: She had capacity to consent to treatment which, it is more likely
than not, would have prevented her death. She refused such treatment in full knowledge of the
consequences and died as a result.

But asked about the consequences had he intervened, Dr Alexander Heaton, the hospitals
consultant renal physician, said: I wouldve been breaking the law and I wasnt worried about her

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suing me, but I think she would have asked, 'What do I have to do to tell you what my wishes

How we moderate
Copyright of Telegraph Media Group Limited 2015

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Non-resisted suicide and depression

Suicide woman allowed to die

Published October 5, 2009 | By Practical Ethics
By Julian Savulescu

As read about in the Telegraph, doctors allowed 26-year-old Kerrie Wooltorton to die after she swallowed poison and gave them a letter instructing
them not to intervene.

Reference: Savulescu J. Should All Patients Who Attempt Suicide Be Treated? Modern Medicine 1995; Feb:113-120. Reprinted in: Monash
Bioethics Review 1995; 14: 33-40. With reply to critics: Savulescu, J. "Response to Bailey." Monash Bioethics Review 1996; 15: 44-5.

Should All Patients Who Attempt Suicide Be Treated?

Summary
Some patients who attempt suicide refuse treatment. These patients are invariably treated if brought to hospital. There are several reasons for
this. These reasons justify the treatment of many of these patients, but not all. Some patients who attempt suicide ought to be allowed to die. My
argument for this claim turns on judging some patients who attempt suicide to be sufficiently competent and rational to be allowed to die.

The Case of David

David was a 35 year old male who was brought into Casualty after having taken paracetamol in sufficient dose to cause death. On arrival, David
refused treatment. He was lucid and orientated. There were no symptoms or signs of major depression or psychosis other than his suicidal
ideation. His cognitive function was normal. He was informed about would happen to him if he were not treated. He understood clearly the
consequences of his action. He offered the following note.
"I have a chronic leukemia which will kill me. I may live another one or two years. It is true that I am well at present.
But I want to die now while I am relatively well, before I am hospital-bound, bleeding, unable to control my bowels and in
pain. I have talked to my family and said all I want to say. I've done the things I wanted to do. Life holds nothing for me
now. In a sense, I am dead already. It will be easier for my family this way. I won't just linger on. I always promised
myself and hoped that I would have the courage never to become a burden on others, but rather to go in the right way.
Right for me, at least. Please respect my wish not to live like this."
David physically resists treatment. If he is to be treated, he will have to be shackled, a nasogastric tube forcibly inserted, perhaps gastric lavage
performed, charchoal and later n-acetylcysteine administered. Should this be done against David's protests?
The Importance of Competence
Liberal societies like Australia are founded upon a belief that each person has a fundamental interest in forming and acting on his own conception
of what is good for him, what direction his life should take, what is best for him. This belief finds classical expression in Mill's harm principle: that
the sole justification for the exercise of power over an individual against his will is to prevent harm to others. "His own good, either physical or
moral, is not a sufficient warrant."[1]
This principle has crystallized in common law. In the case of Schloendorff v. New York Hospital, Justice Cardozo observed in 1914, "Every human
being of adult years and sound mind has a right to determine what shall be done with his own body."[2] This common law principle grounds the
requirement that a person must give willing and informed consent before a medical procedure is performed upon him. According to the common
law principle expressed in Scholendorff, a patient "of sound mind" can refuse any medical treatment, even such treatment necessary to save his
life.

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There is one exception to this requirement. Procedures can be performed upon a patient in his best interests, against his will or without his
consent, if that patient is not of "sound mind." The notion of being of "sound mind" is today embodied in the notion of being "competent" to
consent.
The notion of competence is pivotal to determining whether patients like David ought to be treated. It has recently been reviewed in The
Journal.[3] Buchanan and Brock argue that competence to make medical decisions requires: (1) the capacity for communication and
understanding, (2) the capacity to reason and deliberate, (3) a consistent and stable set of values.[4]
Can a Person Competently Desire to Die?
Today, having a desire to die is not itself sufficient to establish that a person is incompetent. Mr Nicholas Tonti-Filippini, a hospital ethicist at St
Vincent's Hospital, Melbourne, describes two illustrative cases of patients competently desiring to die "which changed the law in Victoria."[5]
The first case is of John McEwan. He was 29 years old when he broke his cervical spine in a diving accident. He was left a quadriplegic and
dependent on a ventilator. Six months after the accident, McEwan repeatedly asked to have the ventilator turned off. When this was refused, he
put himself on a starvation diet with the intention of killing himself. Six days later he was "certified insane to enable his medical advisers to assess
his mental state. The certificate was later rescinded." McEwan recommenced eating but continued to express a desire to die. Professor Ball, a
psychiatrist, "declared that he was sane and this wish to die was a reasonable response to his circumstances." This opinion was confirmed by a
number of independent psychiatrists.
Tonti-Filippini agreed. He described life on the ventilator as "a precarious, burdensome existence that demands great fortitude on the part of a
conscious, competent patient." It was his opinion that McEwan "had no obligation to endure such burdensome treatment, although it was desirable
that he should try." He also "felt that no one had the right to demand that he continue with the treatment." McEwan eventually died of "central
nervous system malfunction and chronic tracheobronchitis", just over one year after his accident.
Tonti-Filippini's second case was of a 45 year-old woman, Mrs N. She developed respiratory failure requiring artificial ventilation. A diagnosis of
atypical motor neuron disease affecting her intercostal muscles was made. The disease spread to involve other muscles. She wanted to die.
Repeated psychiatric examination found her to be sane. Tonti-Filippini and the nursing staff involved in her care formed the opinion that "she was
competently, freely and informedly refusing treatment, and that opinion was recorded by several independent consultants." He argued that she
was not morally obliged to have treatment that she found burdensome and that she had a moral right to refuse medical intervention. Her treatment
was withdrawn and she died.
Both McEwan and Mrs N. competently desired to die. A person's desiring to die is not sufficient to establish that that person is incompetent.
Based on cases like these, Tonti-Filippini notes that the Victorian Parliament passed the Medical Treatment Act 1988. This act provides legal
protection and mechanisms for (1) patients to refuse treatment and (2) doctors to respect these refusals. There are two types of refusal.
Firstly, a competent person may complete a Refusal of Treatment Certificate for a current, named condition. Such a person must be of "sound
mind" (and over 18), informed and understand the nature of his decision. The decision must be voluntary and clearly expressed. It is a legal
offence to provide treatment, including life-sustaining treatment, if a patient has completed a Refusal of Treatment Certificate rejecting such
treatment. A patient completing a Refusal of Treatment Certificate can refuse any medical treatment except palliative care. No legal or other
disciplinary action can be taken against a medical practitioner who does not provide life-sustaining treatment in the presence of a Refusal of
Treatment Certificate forbidding such treatment.
Secondly, a competent person can appoint another agent as (Medical) Enduring Power of Attorney. This person is given the power to make
medical decisions for the patient, if or when he becomes incompetent. This applies to any medical condition. The Agent may sign a Refusal of
Treatment Certificate.
The Medical Treatment Act gives form to the widely accepted belief that some patients ought to be allowed to die. Which patients ought to be
allowed to die? Tonti-Filippini suggests that the reason why McEwan and Mrs N. ought to be allowed to die has to do with the "burdensome"
nature of the treatment in question. That is not the reason. The reason why McEwan and Mrs N. should not be treated is because they both
competently refused treatment, with understanding of the consequences of their choice. Notably, the Medical Treatment Act 1988 does not
require that treatment be "burdensome" for it to be rejected. It only requires that a person be of "sound mind" and have information and
understanding of what he or she is doing.
Is Suicide Different?
Tonti-Filippini argues that resolution of the issue of whether seriously ill and dying patients like McEwan and Mrs N. are to be allowed to die "ought
not facilitate suicide or homicide." He claims that "[t]here is an intuitive difference between refusing treatment as a part of a suicidal project and
refusing because the treatment itself is futile, overly burdensome, or against one's religious or cultural beliefs." In a related later section, he claims
that "[t]he Victorian Parliamentary Social Development Committee in its unanimous report on dying with dignity made a clear distinction between
refusing treatment for reasons such as these, and suicide."
Mill argued that harm to self is not sufficient warrant for interference with an individual's actions. The psychiatrists, Kaplan and Sadock, in their
discussion of suicide, express the opposite view:
"Danger to self is one of the few clear-cut indications presently acceptable in all states [of the United States] for
involuntry [sic] hospitalization."[6]
Suicidal patients are treated against their will for at least four reasons: (1) they are assumed to be depressed or otherwise mentally ill; (2) their act
is often taken to be symbolic (they are really pleading for help); (3) their attempted suicide is impulsive and they will later be glad that their life was
saved; (4) there is no second chance if one is allowed to die, if one did not really want to die.
These are all important reasons. Together they justify taking a default position of treating patients who attempt suicide. However, even if they
were all true and good reasons in general, they would not justify the treatment of all patients who attempt suicide. One need only reflect on the
case of McEwan. Suicide can be defined as intentional self-killing. Both McEwan and Mrs N. are no less suicidal than David. Both have the
intent to kill themselves, so bad is their current situation. At the time of his self-enforced starvation, McEwan was attempting suicide. Yet we
believe that he was competent and ought to have been allowed to die. Clearly some patients who attempt suicide are not sufficiently depressed to
render them incompetent, are not pleading for help, will not thank us and really do want to die.
Moreover, compare suicide to other cases of self-abuse permitted by society. it may be true that a person is depressed, really wants to give up her
addiction to alcohol, and will thank us if we stop her drinking. But if she is competent, unless she asks us, at least implicitly, to intervene in her
behaviour, we ought not to forcibly stop her drinking alcohol against her express protests, regardless of the weight of evidence that she really
wants to give up. The level of competence displayed by alcoholics in their "choice" to become alcoholics or to remain alcoholics is no greater than
that displayed by many people who choose to take overdoses of drugs. In both cases, the fatality of one's behaviour may be equally obvious.
In one way, there is even more reason to interfere with chronic alcohol abuse than with some cases of acute drug overdose. Alcoholism is a

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physical addiction. The choice to continue to drink alcohol may be less voluntary than that to take an overdose of paracetamol. Society chooses
not to interfere in these self-abusive behaviours, at least not until very late in their natural history. Yet it chooses to interfere in the suicides of
people like McEwan and David. This is inconsistent.
There are several reasons why patients who attempt suicide are treated. "In the heat of the moment," if one cannot evaluate a suicidal patient's
competence, then these are good reasons to treat her. However, none of these is a good reason for treating a competent patient against his
wishes. If it is possible to evaluate a patient's competence before life-saving treatment is commenced, as it is in the case of David, it is preferable
that such an examination be undertaken, rather than adopting a blanket policy of treating all patients who attempt suicide.
The Importance of Rational Choice
Professor Ball remarked that McEwan's desire to die was "a reasonable response to his circumstances." In order for a person's desire to die to be
respected, we might require not only that he is competent, but also that his desire is "reasonable" or "rational." Indeed, if a choice to refuse
life-saving medical treatment is highly irrational, this constitutes a reason to call into question that patient's competence.
What makes a person's choice rational? There are two important conceptions of rational choice. On one familiar account, a person's choice of a
course of action is rational if it is made in the face of all relevant, available information, without relevant error of logic.[7] On some accounts, the
person must have vividly imagined as far as possible the consequences of choosing each of the various options on offer.[8] This is subjective
rational choice. On this account, both McEwan and David were rational in choosing to die.
It often objected that this standard of rationality is too low. A person's reasons must not just be thought out clearly and logically. They must also
be reasonable and intelligible to others. They must meet some kind of "objective" standard.
Tonti-Filippini subscribes to an at least partly objective account of rational choice. He argues that a person is not morally obliged to have treatment
which "is futile, overly burdensome, or against one's religious or cultural beliefs." He claims that the Victorian Parliamentary Social Development
Committee agreed that these constitute good reasons to refuse life-saving treatment. The first two of these criteria constitute objective reasons for
refusing treatment. Does this list exhaust what constitutes a good objective reason?
McEwan's treatment was not futile. After all, patients can live for a long time on artificial ventilation. His desire to die was not an expression of a
religious or cultural belief. It might be argued that the treatment was burdensome. But is this the only consideration which motivated the
judgement that his desire to die was "reasonable"? McEwan did not just object to being on an artificial ventilator; he objected to living as a
quadriplegic. There are other cases of quadriplegics who have not been ventilator dependent but who have claimed that life is not worth living.
Does the absence of "burdensome treatment" mean that these patients ought to be compelled to live that kind of life? It is not merely treatment
which can be burdensome, but life itself.
What McEwan and Mrs N. objected to is living a certain kind of life. Life like that, they claimed, is not worth living. Now surely the reason why
McEwan's desire to die was judged "reasonable" is because we believe that a person ought not be compelled to live a life like that, of that quality.
His treatment was burdensome. But his life was bad in many other ways. To not be able to move, to be totally dependent, to not be able to
interact with the world and the people one loves, to be frustrated in the pursuit of nearly everything one holds important is to live a life which is not
worth living. One objective reason for desiring to die is that a person's quality of life is so bad that she ought not be compelled to live a life like
that.
The most important reason why David ought to be treated differently to Mrs N. or John McEwan is because David's life is not so bad. It is worth
living now.
To be sure, poor quality of life is an important objective reason for refusing life-saving medical treatment. But as Tonti-Filippini makes clear, it is
not the only reason. Good reasons to die can be more subjective. Tonti-Filippini claims that a person ought to be allowed to die for religious or
cultural beliefs. In connection with the limitation of treatment of incompetent patients by proxies, he remarks:
"[L]egal representatives might veto a blood transfusion on behalf of an adult Jehovah's Witness, or an abortion on
behalf of a Catholic, or an organ donation for a Shintoist."
One oft-quoted example of refusal of life-saving treatment grounded on religious belief is that of a competent Jehovah's Witness refusing a
life-saving blood transfusion. In the U.S. at least, a Jehovah's Witness has the legal right to refuse a blood transfusion, even if that transfusion is
necessary to sustain life. What then is the difference between the Jehovah's Witness and David?
The Jehovah's Witness' desire is based on the following judgement and belief: "If I receive blood, I'll go to Hell." David's refusal of treatment is
based on this belief: "Future life in a dependent state is not worth living for me."
Tonti-Filippini appears committed to the position that a person ought to be allowed to die for the belief that "If I receive blood, I'll go to Hell" but not
for the belief that "Future life in a dependent state is not worth living for me." How can this be justified? Surely a person's own considered value
judgement about the worth of life provides as much, if not more, objective reason as a belief that if one receives blood, one will go to Hell?
Unless one adopts the untenable position that religious belief represents some "objective truth", one must view religious belief as a set of value
judgements about what is important for one's own life. But as value judgements, they ought not occupy any privileged status. They represent just
another way a person can live his life, another set of commitments. Most of us agree with Tonti-Filippini that respect for religious belief is important
and "conscientious" objection to certain treatments ought to be allowed. It is important to respect different religious beliefs because it is important
to respect different conceptions of the good as far as these affect primarily the person who holds them. But in a pluralistic society, there is no good
reason to give priority to religious conceptions of the good over non-religious conceptions.
If some cases of attempted suicide are based on value judgements, then it can be seen more clearly why suicidal ideation per se is not a symptom
of mental illness. The Mental Health Act does not explicitly define mental illness, but it does state that the following behaviours are not to be
considered evidence of a mental illness: holding a particular religious or political opinion or belief, or expressing a particular philosophy.[9] This
stipulation represents an attempt to remain neutral to different conceptions of value. The same points apply to other value judgements. If a
person's desire to die is grounded in a value judgement about what is important for his own life, this ought to be treated like an expression of a
particular "philosophy," like a commitment to religious belief. Such value judgements, even if not shared generally, are not themselves evidence of
mental illness.
Two Legal Considerations
There is an important legal question associated with the treatment of suicidal patients against their will. Is a doctor who allows a competent patient
to die committing a criminal offence or guilty of negligence? There is some uncertainty. This is one reason why Refusal of Treatment Certificates
were introduced. Certainly actively assisting a suicide is an offence. However, strictly a doctor who allows a patient to die is committing nothing;
he is omitting to do something. This is at odds with Justice Fullager's interpretation of the law in another case Tonti-Filippini discusses. Justice
Fullager claims that not providing medical treatment to a patient who attempts suicide "amounts to carrying into execution the attempted suicide of
the person concerned." However, if this is so, a doctor who turns off a ventilator at a patient's competent request is arguably assisting that

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patient's suicide.
However, there is another face to the problem. A doctor who administers a life-saving blood transfusion to a Jehovah's Witness against his
competent wishes is liable to be charged with assault, at least in the United States. More generally, a patient who appears competent and refuses
life-saving treatment could bring a charge of assault against his doctors. No such charge has been made in Australia as far as I know. What view
a court in Australia would take of such a charge is an open question. It is possible that such a charge might be upheld.
Another untried legal question is whether a patient who attempted suicide can complete a Refusal of Treatment Certificate. If one is convinced by
the argument that some patients who are competent and who attempt suicide ought to be allowed to refuse life-saving medical treatment, the
legality of such an omission remains to be resolved. One solution would be to extend the Medical Treatment Act 1988 to cover all refusals of
treatment. We might require that a patient who refuses life-saving treatment be judged to be competent by two senior doctors, one being a
psychiatrist. If the patient is judged to competent, the patient could complete a Refusal of Treatment Certificate which would protect medical
practitioners from criminal or other charge.
Conclusion
There are many reasons which explain why we are reluctant to let patients who attempt suicide die. Suicide used to be a capital offence. To fail to
prevent a suicide would have been to allow a crime to occur. But suicide is no longer a crime. When our morals were derived solely from religious
teachings, suicide was thought to be a sin. Christianity, Judaism and Islam all promise a miserable afterlife if one kills oneself (unless one is a
martyr or protecting one's virginity). The Catholic Church withholds funeral and burial rites from people who have committed suicide, though in
practice it prefers to call these people "insane".[10] Suicide used to be immoral, illegal or evidence of insanity; it is now not necessarily any of
these. Suicide may not only be viewed as a symptom of mental illness, a cry for help, a sin, a crime, but as a competent and rational choice. If a
person attempts suicide and continues to competently and rationally desire to die, then he ought to be allowed to die. The number of people who
attempt suicide rationally and competently may be small. But for them, their treatment may be one of the most important events of their life.
Acknowledgements

Thanks to Dr Helga Kuhse for many helpful comments.

Mill JS. Utilitarianism, liberty and representative government. New York: J.M. Dent and Sons, 1910.
211 N.Y., 125, 127, 129; 105 N.E., 92, 93.
Finucane P, Myser C, Ticehurst, S. 'Is she fit to sign, doctor?' practical ethical issues in assessing the competence of
elderly patients. MJA 1993; 159: 400-3.
Buchanan A, Brock D. Deciding for others. Milbank Quart 1986; 64(Suppl. 2): 17-94.
Tonti-Filippini N. Some refusals of medical treatment which changed the law of Victoria. MJA 1992; 157: 277-9.
Kaplan HI, Sadock BJ. Modern synopsis of comprehensive textbook of psychiatry IV. Baltimore: Williams and
Wilkins, 1985.
Brandt RB. A theory of the good and the right. Oxford: Clarendon Press, 1979.
Savulescu J. Rational desires and the limitation of life-sustaining treatment. Bioethics 1994; 8: 191-222.
The Mental Health Act and other resources: a practical guide. The Health Department of Victoria, 1992.
Pabst-Battin M. Ethical issues in suicide. Englewood Cliffs (N.J.): Prentice-Hall, 1982.

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Posted in Ethics, Julian Savulescu's Posts

2 Responses to Suicide woman allowed to die

William says:
October 8, 2009 at 12:02 pm

Good stuff, thanks for this Julian!

Marco Antonio Oliveira de Azevedo says:

October 12, 2009 at 12:06 am

Julian Savulescu presents us a sound and convincent argument for the assertion that suicide can be viewed in some
cases as full rational choices, and I agree with him. Why Law continues forbidden physicians and all persons in
general of not interfering with them and their choices? Following Mills Harm Principle, it is not reasonable and not
morally correct to forbid a rational choice of someone unless it can plausible make some harm in another person.
In my interpretation, it means that persons can have claims of not being impeded by others in the course of their
rational choices, unless it is reasonable that this impediment will prevent a predictable (and non mere speculative)

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harm to someone else. But, and what about non rational choices? Psychiatrists usually think that suicide is a
symptom of a mental disease. The cases cited by Savulescu certainly are not. If Savulescu is right, as I think he is,
in the cases like that it is not morally reasonable to interfere. Nevertheless, we can have some arguments for the
privilege of medical interference. In emergency medicine, it is not possible to ascertain conclusively that a person
made its decision in a full competent mental situation. Then it is reasonable that physicians and other persons, in
the course of an emergency situation, can have a privilege, or a license, of interfering. But it is of course still
possible that suicide can be attempted in a different situation, like in the case of David, for example. My inference
is that physician can have a general moral license of interfering in cases of suicide, but if he/she decides of doing
nothing, it is not morally reasonable that he/she be accounted for his or her omission. But if the suicide was not a
reasonable decision and the physician interpreted the situation wrongly? Well, in the same token, he couldnt be
accounted for the omission. The Mills Harm Principle applies to all cases of suicide and persons and even
physicians cannot be accounted for not interfering. Then, where the Law continues forbidding them of not
respecting the decision of their patients (a global reality), then the Law is wrong. We are here presented with a
situation of a clear injustice. The proper function of Law is to protect the rights of the individuals. Any law that
imposes some actions to persons without the requirement of protecting some acknowledgeble right is capricious
and merely arbitrary.

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