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I agree with the Prof. Johnson & Dr Paul, there is the religious aspect to this and there is a common theme amongst most religions (particularly when there is a choice) "'the primary concern of the preservation of life over-rides all other duties' and that even sacred rites, services etc, should be interrupted for such a case, as they could be 're-started' later, and God's creation of human life was more sacred than dignity " The law under Article 2 has been defined well by Dr. Paul and there is a distinction between 'right to life' and 'right to medical treatment', which I would like to explain. Another case that substantiates the Osman ruling is the ruling by Sir Thomas Bingham MR in R v Cambridge Health Authority ex p B [1995] (Child B case). When we are making decisions on individual patients, treatment requests do not concern whether it is clinically appropriate for a patient to have the treatment recommended by their clinical adviser, but whether it is appropriate for us to fund it. This responsibility has been recognised in the courts, most notably in the 'Child B' case, when the judge said: "I have no doubt that in a perfect world any treatment which a patient, or a patient's family, sought would be provided if doctors were willing to give it, no matter how much the cost, particularly when a life is potentially at stake. "It would however, in my view, be shutting one's eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients." This observation has been quoted with approval in a number of appeal judgments on individual patient treatment requests since and remains an accurate statement of the law. In another case concerning the funding of an individual treatment (R v NW Lancashire Health Authority, ex parte A, D&G [1999]), the court stated that: "...in establishing priorities, comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims for treatment, it is vital for an [NHS funding body] accurately to assess the nature and seriousness of each type of illness; to determine the effectiveness of various forms of treatment for it; and to give proper effect to that assessment and that determination in the application of its policy. "The [NHS funding body] can legitimately take into account a wide range of considerations, including the proven success or otherwise of the proposed treatment; the seriousness of the condition... and the costs of that treatment". In this case, the court also stated that: "It is natural that each [NHS funding body], in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible. It makes sense to have a policy for the purpose; indeed, it might well be irrational not to have one. " Thus it would be incumbent on each Trust to ensure that it has a framework which such decisions can be made and should take into account the ethical considerations of at least: * respect for personal autonomy - which requires that we help people to make their own decisions (e.g. by providing important information), and respect those decisions (even when we may believe that a patient's or a group of people's decision may be inappropriate). * beneficence - which emphasises the moral importance of 'doing good' to others. * non-maleficence - which requires that we should seek not to harm patients, and, because most treatments carry some risk of doing some harm as well as good, the potential goods and harms and their probabilities must be weighed to decide what, overall, is in a patient's or group of patients' best interests. * distributive justice - which recognises that time and resources do not allow every patient to have the 'best possible' treatment and that decisions must be made about which treatments can be offered within a health care system. This principle of justice emphasises two points: - people in similar situations should normally have access to similar health care, and - when determining what level of health care should be available for one group, we must take into account the effect of such a use of resources on others (i.e. the opportunity costs). Thus it is incumbent for each organisation to have a set of principles by which they can come to a "rational" conclusion and which is robust enough to face legal challenge (or Paxman). I may have sidetracked and extended the debate but hoped to give the distinction between right to life and right to treatment. Kind regards, Dipen Dipen Rajyaguru LL.B (Hons) Health Equality & Diversity Specialist / Emergency Planning & Liaison Officer NHS Barnet 020 8937 7709 ________________________________ From: Health of minority ethnic communities in the UK [mailto:[log in to unmask]] On Behalf Of Ash Paul Sent: 26 June 2010 09:00 To: [log in to unmask] Subject: Re: Defibrillation and Dignity Dear Prof Persaud, I'm not so sure about your sweeping statement '....... the duty to preserve and safeguard life'. If that is sacrosanct and holds true, why did this happen? http://www.guardian.co.uk/uk/2010/may/18/jehovahs-witness-dies-refuse-bl ood-transfusion Also, as you rightfully mentioned, Article 2 of the ECHR states that there is a 'right to life'. There is a positive obligation upon the State to ensure that this right is respected. However, does this mean that there is a right to medical treatment? The positive obligation under Article 2 must be interpreted in a way that does not impose an impossible or disproportionate burden on the authorities. Therefore, although the State cannot be expected to fund every treatment, it must act reasonably in allocating resources. The European Court in Osman v UK [(1998) 29 EHRR 245] said that there will be a range of policy decisions relating to the use of state resources which it will be up to the contracting states to assess on the basis of their aims and priorities, subject to these being compatible with the values of democratic societies and the fundamental rights guaranteed in the Convention. This is a fascinating area for discussion. Kind regards, Ash Dr Ash Paul Medical Director NHS Bedfordshire 21 Kimbolton Road Bedford MK40 2AW Tel no: 01234897224 Email: [log in to unmask] ________________________________ From: Albert Persaud <[log in to unmask]> To: [log in to unmask] Sent: Fri, 25 June, 2010 19:03:27 Subject: Re: Defibrillation and Dignity Dear All, There is an over- riding doctrine in LAW... the duty to preserve and safe guard life- (UK and ECHR) I am not aware of any case (law) where those with such responsibilities being sanctioned for performing this duty. To the contrary- there are volumes on death and negligence. Focus on the skills and successful outcomes of CPR rather than debates- keep good clinical notes- Courts are not nice places !!! Albert.Persaud (Rtd) Co-founder and Director. The Centre for Applied Research and Evaluation- International Foundation. 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