When the thread finally breaks...
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When the thread finally breaks...

Colin Gavaghan

VESS researcher Colin Gavaghan traces the sad story of Janet Johnstone, and the legal dilemmas faced in Scotland's first right-to-die case.
On May 31st, at approximately 10.27p.m., 53 year old Janet Johnstone died. Her death, coming fifteen days after the withdrawal of artificial feeding, brought to an end not only one of the most highly publicized and controversial cases to come before Scotland's civil courts in recent years, but also four years of anguish endured by her family. Mrs Johnstone's case had already seen Scots legal history made. On April 24th, in the Court of Session in Edinburgh, Lord Cameron of Lochbroom ruled that life-sustaining treatment could be withdrawn from Johnstone, a patient at Lanarkshire's Law Hospital.

A number of deeply contentious and often rather complex questions, both legal and ethical as well as medical, have arisen out of the case. These have, however, faced the constant danger of being overshadowed by tabloid speculation as to the nature of Janet Johnstone's relationship with her husband, the possible reasons behind her attempted suicide, and Peter Johnstone's much publicized ostracization by many other residents of the small Lanarkshire town.

The news of Mrs.Johnstone's death saw a torrent of pent-up emotions expressed by her husband. Peter Johnstone, who has been married to Janet for thirty-two years, spoke of the emotional trauma which he has endured over the last four years. Although obviously deeply affected by the news, his grief was tempered by relief that the ordeal which he and his family had endured was soon to be over, telling journalists that "For me, it's both a relief and a heartache."

The matter first came to public attention in August of last year, when Law Hospital NHS Trust, supported by the patient's family, sought assurance from Court of Session that the withdrawal of nasogastric feeding would not give rise to civil or criminal action against the medical staff concerned. Janet Jonnstone has been in a persistent vegetative state since shortly after an apparent suicide attempt in January 1992. The case appeared before Lord Cameron, but was deemed by him to be of sufficient complexity and importance to merit a request for guidance from the Court's Inner House.

On 22 March, five Court of Session judges, including the Lord President, Lord Hope, held that it would be competent for Lord Cameron to authorise the withdrawal of nasogastric feeding, were he to reach a decision that such a course of action would be appropriate based upon the arguments and facts presented to him. The Lord President stressed, however, that this would not necessarily exempt any doctor acting in such a manner from criminal liability, the jurisdiction of the Court of Session being restricted to civil matters. The case was then referred back to Lord Cameron.

As regards the possibility of a decision to remove treatment giving rise to a criminal prosecution, the Lord Advocate, Lord Mackay of Drumadoon, issued a policy statement in April of this year stating that he would not authorise the prosecution of a doctor who, acting in good faith and with the authority of the Court of Session, withdraws life-sustaining treatment from a PVS patient, with the result that the patient dies.

All that remained was for Lord Cameron, having been authorised by the Inner House to deliver a decision on the matter, to hear the final arguments and come to a decision as to the determination of this particular case. After one more day, he did just that. Following the same line of reasonong as that employed by Lord Hope in the Inner House, Lord Cameron would appear to have based his decision on a determination of Janet Johnstone's "best interests." The application of the best interests test has often proved controversial in cases such as this. The nature of the persistent vegetative state is such that it could quite reasonably be contended that the patient is utterly incapable of possessing any interests of any kind. As Prof Sheila McLean, of Glasgow University's Institute of Law and Ethics in Medicine, observed in her analysis:
The best interests test is spurious because the nature of the diagnosis itself means that the person in PVS has no interests whatsoever, far less "best" ones.

That this is so becomes quite evident upon consideration of Lord Hope's description of Janet Johnstone's condition:
The function of consciousness has been lost forever. The patient is wholly unaware of her surroundings. She cannot see, hear, feel pain or pleasure, communicate by word or movement or make voluntary movements of any kind.

The Court would appear to have circumvented this possible obstacle by employing a similar logic to that which formed the basis of the Bland case, i.e. that the task before the court was not to determine whether it was in the patient's interests to be allowed to die, but rather to consider whether it could be said to be in his or her interests to prolong life-sustaining treatment. In the Johnstone case, the Court of Session formed a similar opinion of the persistently vegetative patient to that taken by the House of Lords in Bland; that in view of her condition,
it is no longer possible to suggest that the continuance of the treatment which is presently being administered, and has for some considerable time been given, to Mrs Johnstone to maintain her in her present condition in which she is permanently insensate, is of any benefit to her. That being so, there are no longer any best interests to be served by continuing such treatment.

The Johnstone verdict prompted immediate condemnation from pro-life groups, and from representatives of the Roman Catholic Church. A last minute attempt to prevent the withdrawal of life-sustaining treatment was made by Father James Morrow, a well-known pro life activist. However, his attempt to have an interdict granted against Law Hospital, preventing any action until a tutor had been appointed to represent Mrs Johnstone, was rejected by Lord Hamilton, who concluded that Fr Morrow was seeking to re-open issues which had already been considered at great length by the court. In addition, Lord Hamilton was not satisfied as to whether Fr Morrow's had legal title to raise such proceedings.

Much of the opposition to the decision to allow Mrs Johnstone to die was particularly concerned by the perceived precedent set by the decision to allow the withdrawal of artificial nutrition and hydration. The Catholic Church, while recognising that a doctor's obligation to preserve life extends only to the employment of "ordinary" means, does not accept that the provision of nasogastric feeding falls within the category of medical treatments which "impose an extraordinary burden on himself or others." Indeed, their opinion - and it is an opinion shared by a considerable number of others - is that its provision should not properly be regarded as medical treatment at all, but as the provision of "basic care."

In a press statement shortly after the decision was known, Cardinal Thomas Winning made public his disapproval at the step the Court had taken. "Never before in Scotland has nourishment been equated with medical treatment," he argued. "Nourishment is a right of every human being and to deny food is to starve a person to death - this can never be morally right."

This view was not shared by Brian Potter, Scottish secretary of the BMA. "Feeding is by a tube," he pointed out, "and this is an extraordinary means of keeping someone alive. Lord Cameron's ruling allows us to stop that."

It could, however, be argued that the approach taken by the Court of Session in this case renders such semantic considerations to be largely irrelevant for practical purposes. If the Court is concerned primarily with what may be said to be in the patient's best interests, then questions as to whether the provision of artificial feeding constitute medical treatment, or whether naso-gastric feeding amounts to an extraordinary measure, may have a negligible bearing on the outcome of the case. If Janet Johnstone's life is deemed to be of no benefit to her, then its prolongation, by whatever means, could be seen as inherently futile, irrespective of the precise terminology which is employed.

Almost inevitably, in view of recent well-documented cases of apparent error, some reservations were expressed as to the accuracy with which persistent vegetative state can be diagnosed. The danger of possible misdiagnosis was specifically addressed by Dr John Browning, Law Hospital's medical director. While "aware of cases in which people appear to be recovering from PVS," cases which he conceded could be said to "cast doubt over the diagnosis," he offered assurance that no such doubts concerned Mrs Johnstone's prognosis. "If we were not completely sure Mrs Johnstone was PVS," he insisted, "then we would not have gone down this avenue."

Although welcomed by right-to-die organisations, the Johnstone decision has left many advocates of end of life choices feeling less than entirely satisfied. In one sense, it has reaffirmed what many see as a legally anomalous position with regard to decisions about death and dying. Once again, the courts would appear to have conceded that a decision to end the life of a patient accepted as being wholly without interests can be acceptable, while steadfastly refusing to sanction assistance for those who are capable of expressing preferences, and who, unlike Janet Johnstone, may reasonably be argued to have a positive interest in dying. As McLean observed:
What our law does, therefore, is to endorse decisions which will result in the deaths of certain patients (most notably those who cannot express a preference) but not those who are competent to ask for aid in dying.

In addition, reservations have been expressed over the way in which Janet Johnstone's life finally ended. While supporting the view that her life was of no value to her, some commentators have argued that, once the decision had been made to bring that life to an end, that result should have been achieved with as little delay as possible. Even if it was certain that the patient herself was completely oblivious to what was happening, the point has been made that a prolonged death through dehydration would only add to the distress of relatives and carers.

It should, however, be borne in mind that, for as long as the distinction between acts and omissions continues to be relied upon in cases such as these, it is difficult to see what other course of action will be open to the Court. Certainly, any positive act, by a physician or any other party, carried out with the intention of hastening the patient's death, would almost certainly result in a criminal prosecution. Prof McLean is only one of many who would like to see this state of affairs reconsidered, with a view to allowing lives such as Janet Johnstone's to be ended with as much dignity, and as little prolongation of suffering for all concerned, as is possible.

Opposing views as to the fate of Janet Johnstone will certainly continue to be voiced in the press and other media long after the last echoes have died away in the Court of Session. That many will oppose Lord Cameron's decision is certain, and even many of those who support the outcome may feel less than entirely satisfied by the reasoning underlying it, or the way in which the decision was put into effect.

However, whatever criticisms may be levied at the verdict, it must be hoped that at least a degree of good will arise from it. Firstly, it seems inevitable that the publicity surrounding the case will act as a catalyst for a much needed public debate in Scotland on what McLean describes as "the end of life debate as a whole." And secondly, it must, of course, be hoped that the decision will in time bring relief to a Lanarkshire family who have already endured enough.
Colin Gavaghan qualified in Law at Glasgow University and is currently completing a Ph.D in medical law (genetic screening) at the Institute of Law and Ethics in Medicine. He works part-time at VESS as Research Assistant.
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