Philosophy, Psychiatry, & Psychology

Following a suggestion from the House of Lords Select Committee on Medical Ethics (1994), the British Medical Association produced a Code of Practice on advance directives in 1996 (British Medical Association 1995). The extent to which such advance directives could affect mental health care was considered at length during discussions on the draft code by the committee charged with its preparation. Advance directives (sometimes known as advance statements or living wills) are in essence advance refusals of treatment. Any mentally competent patient has a right to refuse medical treatment for any reason, rational or irrational, or for no reason at all, even when that decision will lead to his or her death (see, for example, Lord Justice Donaldson, quoted in Hornett 1995).

The drafting committee’s interest centered on whether a patient with a fluctuating severe mental illness comprised either of a significant psychotic or depressive element could state, during a lucid and “rational” period, that he or she did not wish to receive treatment when the disorder reoccurred, even if this led to a suicide attempt. Two particular questions seemed relevant. First, are some mental illnesses (in themselves) terminal, and can a patient thus ask not to be treated even though the effect will be that the patient takes his or her own life? Second, is it reasonable for treating clinicians not to intervene if they believe they have a treatment which may be effective (a crucial point in relation to the Chabot case)?

The committee confirmed that an advance directive could not compel a doctor to assist suicide; the British Medical Association, and many other organizations do not support euthanasia, defined as a deliberate intervention undertaken with the express intention of ending a life, albeit at the person’s own request or for a merciful motive. Although euthanasia is illegal in the United Kingdom and in most American states, and is likely to remain so, developments in Dutch law and in some states in the U.S. point to a liberalization of society’s attitudes towards assisting those who are suffering intense and continuing distress, whether physical or psychological. The U.S. Supreme Court has ruled recently that the American Constitution (in particular the Fourteenth Amendment) does not provide a generally applicable rule supporting assisted suicide (Dworkin 1997b; Keown 1997). It should be noted also that while suicide is not, of itself, a criminal offense in England and Wales, it is an offense to aid and abet suicide.

In arguments before the court and in other places, a distinction has been drawn between acts likely to hasten death and omissions which allow [End Page 137] a person to die naturally, a position which has been challenged (Dworkin 1997a). The distinction which should be made is between those acts and omissions intended to hasten death and those which do not have that intent. Even using a strong version of the “liberty principle” placing great emphasis on individual autonomy, an act or an omission is only justified if it is (a) the informed will of a “rational” person, and (b) the person is terminally ill and in significant pain or distress (Kaveny 1997).

However, the Chabot case (in which the patient was assisted to die) may not be a helpful context in which to consider the “hard” cases presented by Burgess and Hawton. In these cases we are concerned primarily with deciding, first, if the person has a treatable mental disorder for which compulsory treatment may be applicable under mental health legislation, and second, whether the person has made a clear advance refusal of treatment if not. Case law from the United States suggests a policy formulation: that where a patient’s wishes for treatment to be withheld, although “trustworthy, [are] not unequivocal,” a then “limited objective test” would allow treatment to be withheld if life with the treatment would be more burdensome than beneficial (Giesen 1995, 209). In most cases of mental disorder—such as those described by Burgess and Hawton, and where compulsory treatment can properly be given in accordance with legislation—it can plausibly be argued that it is likely...