GP Dr T requests advice when his patient asks for their medical records. By Ibrar Mahmood, Case Manager at Medical Protection.
Dr T, an experienced GP, contacted Medical Protection for advice relating to a patient who wrote to him and requested a medical report. The patient asked Dr T to provide in the report an overview of his medical conditions and ongoing difficulties. The purpose of the report was not made clear to the clinician in the written request.
Dr T informed Medical Protection that the patient was diagnosed with myalgic encephalomyelitis, which affected his ability to carry out routine everyday tasks and severely affected his mobility. The patient reported severe pain on a daily basis for which he received various medication. The patient had also undergone extensive investigations from numerous clinicians with little success. In order to ascertain further information, Dr T contacted the patient.
During the telephone discussion, the patient informed Dr T that he felt life was not worth living and that he was suffering from extreme pain every day. The patient felt that all treatment options were exhausted. During the discussion, the patient disclosed to Dr T that the report he would prepare would be used for an application to Dignitas.
By way of background, Dignitas is a Swiss non-profit organisation founded in 1998 that provides assisted/accompanied suicide to those members of the organisation who suffer from terminal illness and/or severe physical and/or mental illnesses.
Dr T was understandably concerned by this request and requested advice on how he should deal with this matter: he was worried about any legal implications.
Our advice to Dr T
Under Section 2 of the Suicide Act 1961 it is a criminal offence to encourage or assist another person to commit suicide, and the offence carries the potential sanction of a custodial sentence.
Once a doctor is fixed with the knowledge that a patient has the intention of travelling to a Dignitas clinic for the purpose of seeking an assisted death, any steps that they take to facilitate that process could potentially be construed as encouraging or assisting the patient to commit suicide. This clearly places doctors in an invidious position.
Matters have been compounded by the fact that in 2010, the Director of Public Prosecutions (DPP) for England and Wales produced definitive guidance for prosecutors, which included as a factor tending in favour of prosecution:
“A person commits an offence under section 2 of the Suicide Act 1961 if he or she does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide. This offence is referred to in this policy as ‘encouraging or assisting suicide’. The consent of the Director of Public Prosecutions (DPP) is required before an individual may be prosecuted.
“…where the individual who is suspected of encouraging or assisting suicide was acting in his or her capacity as a medical doctor, nurse or other healthcare professional.”
The DPP does however state that the following factors tended against prosecution:
• If the victim (ie the patient) had reached a voluntary, clear, settled and informed decision to commit suicide.
• If the suspect (eg a doctor) was wholly motivated by compassion.
• If the actions of the suspect (or those sufficient to come within the definition of the offence) were only minor encouragement or assistance.
• If the suspect had sought to dissuade the victim from taking a course of action that resulted in their suicide.
• If the actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide.
• If the suspect had reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.
The GMC have produced guidance, Patients seeking advice or information about assistance to die, which recognises the challenges that doctors face when they receive requests from patients about assisted deaths. Included below are the relevant paragraphs:
“1. Doctors face difficult challenges in responding sensitively, and compassionately, to a patient who seeks advice or information about hastening their death, while ensuring that their response does not contravene the law by encouraging or assisting the patient to commit suicide.
5. Where patients raise the issue of assisting suicide, or ask for information that might encourage or assist them in ending their lives, respect for a patient's autonomy cannot justify illegal action*
6. Doctors should:
a. be prepared to listen and to discuss the reasons for the patient’s request
b. limit any advice or information in response, to:
i. an explanation that it is a criminal offence for anyone to encourage or assist a person to commit or attempt suicide, and
ii. objective advice about the lawful clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill themself.
For avoidance of doubt, this does not prevent a doctor from agreeing in advance to palliate the pain and discomfort involved for such a patient should the need arise for such symptom management.
c. be respectful and compassionate and continue to provide appropriate care for the patient.
d. explore the patient's understanding of their current condition and care plan
e. assess whether the patient has any unmet palliative care needs, including pain and symptom management, psychological, social or spiritual support.”
The above guidance is also referenced in a further document, entitled Revised guidance for doctors on giving advice to patients on assisted suicide. Annex A of the document sets out guidance for the Investigation Committee and case examiners when they are considering allegations about a doctor’s involvement in encouraging or assisting suicide.
When considering allegations about a doctor’s involvement in encouraging or assisting suicide it outlines a (non-exhaustive) list of doctors’ conduct that may raise a question of impaired fitness to practise. This includes “writing reports knowing, or having reasonable suspicion that the reports will be used to enable the person to obtain encouragement or assistance in committing suicide”.
The guidance document above also states under the heading “Allegations that will not normally give rise to a question of impaired fitness to practise” (section 23):
“Some actions related to a person’s decision to, or ability to, commit suicide are lawful, or will be too distant from the encouragement or assistance to raise a question about a doctor’s fitness to practise. These include but are not limited to:
a: Providing advice or information limited to the doctor’s understanding of the law relating to encouraging or assisting suicide
b: Providing access to a patient’s records where a subject access request has been made in accordance with the terms of the Data Protection Act 1998 8
c: Providing information or evidence in the context of legal proceedings relating to encouraging or assisting suicide.”
However, it is important to be mindful that the view of the court or GMC may differ and would depend on the individual circumstances of the case.
Outcome of case
Dr T was advised to contact the patient following his review of our advice. Dr T was advised to:
- Firmly discourage the patient from ending his own life.
- Speak with the patient with understanding about his situation. Dr T was advised to inform the patient that he would refuse to write a medical report for the purpose of an application to Dignitas. Preparing a medical report would potentially put Dr T at a risk of prosecution for aiding and abetting a suicide.
- Discuss with the patient options for optimising his care and discussing with him the other support and options that were available, including the option of a second opinion from a colleague or another clinician.
- Expedite any outstanding specialist referrals.
Dr T was also advised to speak with his Caldicott Guardian and Data Protection Officer for advice if he received a formal subject access request. Dr T was also asked to make a comprehensive record of all the issues discussed with the patient in the medical records.
In this situation, it is possible that the patient may not be happy with the course of action taken by the doctor and may make a complaint. If this occurs, Medical Protection can be contacted to provide advice on dealing with complaints.
Clearly queries such as these are incredibly complex. Please contact Medical Protection if you require specific advice.