Review by Andrew Fergusson
Chairman, Advisory Group, Care Not Killing Alliance
The General Medical Council has launched a consultation ending 4 May, on 'Guidance for the Investigation Committee and case examiners when considering allegations about a doctor's involvement in encouraging or assisting suicide'. (1) The definitive version will primarily be for the GMC's own purposes, to decide whether to proceed against doctors whose fitness to practise is apparently questioned.
Why the need? In July 2009, the Law Lords (now Supreme Court) ruled on the case brought by multiple sclerosis sufferer Debbie Purdy. She wanted assurances that if her husband assisted her suicide, he would know what criteria the Director of Public Prosecutions would use in deciding whether to prosecute. Ordered to publish criteria, the DPP's final guidance included among the 16 public interest factors listed in favour of prosecution: 'The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional... and the victim was in his or her care'. (2) Subsequently, the Medical Defence Union (3) and the Medical Protection Society (4) issued advice that doctors should not involve themselves at all, and the Royal College of Nursing guidance (5) is cautionary.
Health professionals are at risk both of criminal prosecution and of action by their regulator. The GMC's guidance, which will affect all registered doctors, is brief and commendably clear. It sets out the current law, and makes no ethical comment, but the detail is incredibly significant as it is against those final words that the GMC will judge any doctor's conduct.
Like the DPP, the GMC effectively lists 'more likely to prosecute' and 'less likely' factors. These are ethically conservative and show common sense, though questions remain. Most likely to affect doctors is: 'She wants records and a medical report for Dignitas – what am I allowed to do?' While 'providing access to a patient's records in compliance with a valid subject access request under the Data Protection Act 1998' (22b) is listed as less likely, 'assessing a person's physical health or mental capacity and/or writing reports knowing, or having reason to suspect, that the assessments and/or reports would be used to enable the person to obtain encouragement or assistance in committing suicide' (19c) is rated more likely.
This example suggests a potential minefield in practice. Individual doctors should respond to uphold law and ethics, and to comment on details in this consultation from the perspective of their consulting rooms.
