TY - JOUR AU - Goodman, James AB - GMC Fitness to Practise Hearing of Dr Munro, 5th–11th July 2007 I. INTRODUCTION Hippocrates mentioned euthanasia in the Hippocratic Oath, ‘To please no one will I prescribe a deadly drug nor give advice which may cause his death’. ‘Active euthanasia’ refers to a deliberate act to accelerate the death of a dying patient. Euthanasia comes from the Greek word ‘eu’ which means ‘goodly’ or ‘well’ and ‘thanatos’ meaning death. Despite essentially meaning ‘good death’, active or voluntary euthanasia constitutes murder under English and Scottish law providing the facts surrounding a particular case can be proven.1 Essentially, this means that no neonatologist practising in the UK is permitted to hasten the death of an infant, even if that infant is dying. The Royal College of Paediatrics and Child Health (RCPCH) states that ‘Giving a medicine with the primary intent to hasten death is unlawful. Giving a medicine to relieve suffering which may, as a side effect, hasten death is lawful and can be appropriate’.2 However, most end of life decisions regarding neonates frequently involve the withdrawal of artificial ventilation,3 where these boundaries between lawfully withdrawing treatment and hastening death are even less well defined. This is no more so than in the surprisingly little discussed case of Doctor Michael Munro. Dr Munro, aged 41, was summoned in 2007 to appear before the General Medical Council (GMC) Fitness to Practise (FTP) Panel4 facing allegations that he hastened the death of two dying newborn babies while working in the neo-natal unit of Aberdeen Maternity Hospital. In two separate incidents in 2005, Dr Munro had concluded that withdrawal of ventilation was the most appropriate action for two premature and terminally ill babies, Baby X and Baby Y. Following this, both babies commenced agonal gasping, much to the distress of their parents. In an act described as ‘tantamount to euthanasia’,5 Dr Munro administered a muscle relaxing drug, pancuronium, which stopped the babies’ agonal gasping, breathing, and hastened death. No criminal charges were ever brought against Dr Munro by the Procurator Fiscal (the public prosecutor in Scotland) and likewise, the GMC decided to take no action against Dr Munro. II. EVENTS THAT LEAD TO THE FTP HEARING Baby Y was born on 20 June 2005 (34 weeks gestation) and suffered from pulmonary hypoplasia (incomplete development of the lungs) and pulmonary hypertension (high blood pressure in the lungs and right side of the heart which can lead to heart failure). Baby X was born on 5 December 2005 (25 weeks gestation) and ultrasound scans revealed a severe brain haemorrhage and ventriculomegaly. In the case of Baby Y, it was decided, in association with the parents, that treatment (in this case ventilation) should be withdrawn. At 20:30 on 5 July 2005, ventilation was withdrawn. Baby Y continued with a morphine infusion and was handed to his parents by a nurse. One hour later Baby Y began agonal gasping. Agonal gasping, or agonal respiration, often called violent spasms in the media is a primitive brainstem reflex which will always result in terminal apnoea (the complete cessation of breathing). Agonal gasping may continue for several hours or may be only one or two breaths. During this time, the patient may appear uncomfortable and give the impression that he/she is struggling for survival. Galloway and Yaster have noted that ‘Many parents report that watching their children gasp at the end of life is among the worst experiences of their children's illness’.6 On witnessing this agonal gasping, Dr Munro administered the muscle relaxing drug pancuronium. The agonal gasping stopped and Baby Y died. In Baby X's case, it was decided in association with the parents that ventilation should be withdrawn. On 20 December 2005, Dr Munro discussed with Baby X's parents the possibility of agonal gasping before withdrawing ventilation and handing Baby X to his parents. Shortly after, Baby X began agonal gasping. The parents asked if there was anything Dr Munro could do to relieve his suffering. It was believed that Dr Munro replied that there was a drug he could use, which was on the verge of what society finds acceptable, but he had no problem with it (or words to that effect). However, this allegation was later deleted under rule 17(2)(g).7 Dr Munro subsequently administered pancuronium to Baby X. The agonal gasping stopped and Baby X died. III. THE GMC FITNESS TO PRACTISE PANEL Apart from the central allegation, Dr Munro faced other allegations.8 Allegation 12 stated ‘The administration by you of pancuronium in each case (a) did not treat the cause of agonal gasping, (b) prevented the manifestation of the sign of agonal gasping, (c) stopped the baby breathing, (d) hastened death’. This was all admitted and found proved by the GMC. The standard of proof (beyond reasonable doubt) was the same for the GMC as it is for criminal courts. Allegation 16 related to the administration of pancuronium (which was admitted as not being treatment for agonal gasping) and was (a) inappropriate (not proved),9 (b) outside accepted professional practice (admitted and proved), (c) contrary to guidelines issued by the RCPCH (deleted), and (d) below the standard to be expected of a registered medical practioner (not proved). In deciding whether Dr Munro's actions were (b) outside accepted professional practice, it was stated that ‘Doctors should exercise extreme caution when giving treatment outside accepted professional practice’. On whether Dr Munro's actions were (c) contrary to guidelines issued by the RCPCH, this allegation was deleted due to the FTP Panel's view that: having regard to the evidence of Professor B that the guidelines are contradictory and that the framework does not precisely cover the circumstances in which Dr Munro used pancuronium and also Professor B's evidence as to Dr Munro's intentions, the panel finds that there is insufficient evidence as would enable it to find this allegation proved.Moreover, the Panel could not prove allegation (d) that Dr Munro's actions fell below the standard to be expected of a registered medical practioner: ‘… the Panel is not satisfied so as to be sure that your actions fell below the standard expected of a registered medical practioner’. In summing up,10 the Panel decided to take no action against Dr Munro. IV. PARALLELS AND DIFFERENCES BETWEEN THE MUNRO CASE AND THAT INVOLVING DR NIGEL COX Significantly, had charges been brought and Dr Munro not admitted the allegations, then the prosecution would have had to prove beyond reasonable doubt that it was pancuronium that killed these babies. Could it not be possible that the babies just happened to stop agonal gasping and died at precisely the time that the drug was given? If so, would it then have been feasible to charge Dr Munro with attempted murder as occurred in R v Cox?11 Dr Cox administered potassium chloride to his patient, Mrs Lilian Boyes. Potassium chloride has no therapeutic or painkilling properties, is toxic to the heart in high doses and can kill. Mrs Boyes had been suffering severe pain from rheumatoid arthritis for a number of years and had asked Dr Cox to end her life. However, Mrs Boyes was cremated before the facts of her death became known and as such, it could not be proved beyond all reasonable doubt that the potassium chloride killed her (there remains the possibility she could have died of natural causes before the drug took effect). Dr Cox was convicted of attempted murder and given a one-year suspended sentence, later replaced by one year's probation by the Court of Appeal. The GMC allowed Dr Cox to continue to practise under certain conditions.12 The case of Dr Cox differs from the Munro case in several ways. Dr Cox was prosecuted (and convicted), unlike Dr Munro. Mrs Boyes might not have been seconds from death, nor were her family (who supported Dr Cox in court) pleading for help, but Dr Cox's punishment appears disproportionate when compared with what happened to Dr Munro. In light of the fact Dr Cox was convicted of attempted murder and yet Dr Munro was never charged, there appears little consistency for determining when a doctor should be investigated for a criminal offence. At present, the judicial system seems to be rather haphazard regarding whether a doctor providing treatment which may hasten death should face prosecution or not. If Mrs Boyes had not been cremated, then Dr Cox's punishment could have been more severe. Does it really make so much difference that instead of Baby Y and Baby X's parents pleading for help, it is the patient herself asking for help? Instead of merely presuming the babies suffered pain, in this case we can be almost certain that Mrs Boyes suffered pain. This highlights the point (in the case of Dr Cox) that even where a doctor's intent is in accordance with the patient's wishes, it remains that it will serve no purpose in protecting the doctor from the criminal law. V. OTHER SIMILAR CASES Although decided in 2007, the outcome of the Munro case has even greater significance when one considers the contrasting legal consequences in two recent and somewhat similar cases involving Francis Inglis and Bridget Gilderdale. As opposed to the Munro case, formal charges were brought against the defendants. Bridget Gilderdale aged 55 was cleared of the attempted murder of her daughter, Lynn Gilderdale, 31. Lynn had suffered with the debilitating condition ME/CFS (myalgic encephalomyelitis/chronic fatigue syndrome) for 17 years which caused her to be paralysed from waist down and unable to swallow. She had previously attempted to commit suicide, had an advanced ‘Do Not Resusitate’ order and had considered ending her life at the Swiss Clinic, Dignitas. After taking an overdose of Morphine, Lynn told her mother she did not want to continue living in this way. Mrs Gilderdale gave her daughter two syringes, each containing 210 mg of morphine which were administered directly into her vein via her Hickman line. This was followed by the administration of crushed pills into Lynn's nasogastric tube. After ‘two or three’ further syringes of morphine were given, three syringes of air were administered through Lynn's Hickman line with the intention, it was alleged, of causing an air embolism. Mrs Gilderdale admitted aiding and abetting the suicide of Lynn Gilderdale for which she was given a 12-month conditional discharge, although she was cleared of attempted murder.13 The second case involves Francis Inglis, aged 57, who was given a life sentence after being found guilty of killing her 22 year old son, Tom, in November 2008. Tom fell out of a moving ambulance on the way to the hospital and subsequently suffered serious head injuries. Despite a doctor explaining that Tom had an encouraging prognosis, Mrs Inglis maintained a pessimistic outlook. After a failed first attempt at murder, she succeeded in her second attempt, killing her son by injecting him with heroin. She was found guilty of murder and attempted murder by a 10-2 majority verdict. Interestingly, the defence put forward by her QC, Sasha Wass—that she felt she had not murdered her son but “saved him from an agonised existence”—is somewhat similar to that stated by Dr Munro, in that he acted with the best of intentions to relieve the perceived distress and suffering rather than to hasten death.14 Although prosecutions have taken place relating to doctors who have terminated the life of adults, to my knowledge there have been, save R v Arthur,15 no publicised criminal cases of doctors ending neonates’ lives in the UK. Indeed, in Dr Munro's case, it is of significant interest that he did not face prosecution for intentionally terminating the life of a neonate. Except for analysis by Morris,16 little has been written regarding this outcome of the case. Whether the doctor in question had withdrawn treatment lawfully or in effect hastened death (which could in theory equate to homicide), is a contentious issue. Were Dr Munro's actions lawful? Should Dr Munro have faced criminal charges? Was this a fair outcome to the case? Where does one draw the line between killing and letting die? Where is the fine line between facing prosecution and being exonerated? Do compassionate circumstances affect the legal response? What should happen if this scenario were repeated? VI. ANALYSIS OF THE CASE For a case described by the GMC council lawyer as ‘tantamount to euthanasia’, it is surprising that this case did not receive greater media coverage at the time. A recent search for newspaper articles on ‘Dr Michael Munro’ listed 33 newspaper reports regarding the case.17 The central dilemma of this case lies in Dr Munro's obligation to practise within the law and at the same time to effectively relieve pain and associated suffering of his patients. The Procurator Fiscal did consider the case; however, an NHS spokesman at the time said ‘No doctors or nurses are suspended. The procurator fiscal has confirmed no criminal proceedings will take place’.18 A search on the Procurator Fiscal website revealed no further information about the case.19 However, in deciding to take no action at all against Dr Munro, the GMC and the criminal justice system arguably sent a controversial yet sympathetic message to the effect that where a doctor acts compassionately in the best interests of the baby and the family, he could avoid legal and professional sanction. If Dr Munro's actions were on the wrong side of the law and it was in the public interest to prosecute (which would be usual for homicide), then one would expect that Dr Munro would have faced criminal charges. For example, could it be argued that what Dr Munro did was murder—that is, causing death with either intent to kill or cause grievous bodily harm? There seems, at first sight, little doubt that Dr Munro did intend to kill. According to a newspaper report, Dr Munro was quoted as stating: ‘[the parents] have already said their last goodbyes to their baby, then suddenly there are these massive, racking agonal gasps which appeared to build up’. He told the FTP Panel that the parents of Baby Y were ‘utterly, utterly distraught’ and were in tears saying ‘I can't take any more’. He said he chose the drug (pancuronium) after reading an article in a medical journal.20 He told the hearing that he ‘explained to the parents that this drug was to be used to ease the suffering but that one of the consequences of its use may be to hasten death’ and that ‘they were happy with that’. In the case of Baby X, Dr Munro was called to certify death. He discovered a faint heartbeat and the child began agonal gasping. He stated: ‘… I felt in my heart that this baby was distressed’.21 Following a discussion with the child's family, Dr Munro made the decision to administer a dose of pancuronium and the infant died a short while later.22 Having read this statement, one begins to feel a certain degree of sympathy towards Dr Munro; he most likely felt a desire to take some positive action to end Baby X's perceived pain and distress, and the parents’ emotional trauma. But sympathy does not change the strict legal position regarding Dr Munro's conduct. Interestingly, neither set of parents at any time made a complaint about Dr Munro and, in fact, fully supported his actions.23 The same was also true in the Cox case, in which Mrs Boyes’ son, Patrick, thanked Dr Cox after her death. Indeed, Dr Cox was supported throughout the trial by the family who were upset at the guilty verdict.24 Interestingly, allegation 10 (that ‘there is no treatment for agonal gasping’) was deleted following controversy as to the meaning of the term ‘treatment’; it can ‘mean a cure for the underlying cause as well as relief of symptoms’. For many terminal conditions (such as terminal cancers) where palliative care is the mainstay of care, it is not about curing the cause of the condition, but managing the symptoms of that condition. Agonal gasping is one of many examples where it is only possible to manage the condition, rather than treat with the intention of curing the condition. Agonal gasping can only be cured by stopping breathing. Therefore, on the basis that it is not possible to stop agonal gasping without stopping breathing, what was the intention behind Dr Munro's decision to give pancuronium? On the basis that treatment can mean ‘relief of symptoms’ then the probability was that Dr Munro was treating these babies, but at the same time the administration of pancuronium did hasten death. On that basis, one could also treat other terminal conditions in a similar way. Again, this would be akin to active euthanasia. Pancuronium is a muscle relaxing drug which in effect paralyses the body and has no analgesic or sedative effects. It does not matter what dose Dr Munro gave, although he in fact gave 23 times the normal dose,25 for even a ‘normal’ dose would have paralysed the body and resulted in the same effect. Dr Munro clearly intended to ensure that the drug was effective in hastening death. Pancuronium is most commonly used with general anaesthesia in surgery, but it is also used as part of the lethal injection in a number of US states to execute death row prisoners. If used without adequate anaesthesia, the drug can prevent the prisoner from displaying any outward signs of discomfort and it may also make him or her feel as though they are suffocating.26 Therefore, although it was Dr Munro's intention to relieve the babies’ suffering, was this the actual effect the drug had? If given without adequate analgesia (Dr Munro did prescribe adequate morphine), the babies would have, in effect, suffocated to death as they would have been unable to breathe. This may have been less distressing for the parents to witness although whether this would have relieved the babies’ suffering, as was intended, is debatable. A key element in Dr Munro's case lies in whether Dr Munro's actions were primarily intended to ease the suffering of the parents or the babies (or both), so that he could argue that his primary intent was to relieve suffering and so be brought within Devlin J's dictum regarding ‘double effect’.27 If one interprets agonal gasping as displaying outward signs of distress or pain, then this could warrant the administration of pancuronium in the knowledge that the only way to ease suffering would be to hasten death. The problem is that we are currently unsure whether patients who agonally gasp do actually feel pain and suffering. According to the minutes of the FTP Panel hearing, ‘although Professor B gave evidence that, in his opinion, it was unlikely these particular babies were in fact suffering distress, he was unable to exclude that possibility’.28 Not every patient who feels pain may necessarily display outward signs of distress. For example, patients under anaesthesia have been known to suffer pain, yet they do not display signs of it. Kuhse contests that we cannot be certain that patients in the terminal stages of life who have been withdrawn from the ventilator do not feel any pain: ‘Patients who are gasping have profound hypoxaemia, which most likely renders them unconscious. Thus, one might argue that patients who are gasping do not suffer … however it is possible that these patients still have enough brain function … and that they can feel pain and suffer’.29 Similarly, if we cannot be certain that they do not feel pain, we must assume that pain is experienced. If this is the case, then muscle relaxants (and adequate analgesia) should be prescribed to all patients when ventilation is withdrawn. This would be akin to active euthanasia. Perkin and Resnik also argue that: The principle of double effect allows … the employment of neuromuscular blocking agents (or muscle relaxants), to prevent ‘the agony of agonal respiration’. While death is a foreseen consequence of what the physician does, death is not intended, either as an end or as a means. Rather, to prevent ‘the agony of agonal respiration’, physicians can legitimately administer muscle relaxants and cause the patient's death without violating either traditional morality or their consciences.30In short, Perkin and Resnik argue that there are good grounds to end the life of a patient with agonal gasping, for both the patient and the family. Similarly, Dr Munro could also argue that he was treating the parents and baby as one unit. After all, the babies were close to death at this point, as signalled by the initiation of agonal gasping. Could Dr Munro justify his actions as catering for the needs of the parents in addition to those of the babies? In theory, he could have made such an argument on the basis of ethics, although this would have carried no legal precedent. All the available evidence suggests that ‘Dr Munro acted with the best of intentions’. However, to what extent should the good intentions of a doctor be allowed to disguise the misuse of a muscle relaxing drug? It seems unlikely that Dr Murno had not correctly dealt with agonal gasping before these two cases arose. If he had not, then he should have received proper training in palliative care to administer the correct treatment. To give this drug would have killed the babies in a similar way as smothering with a pillow,31 so what is the difference between the two? On the matter of intention, there is very little difference. Legally, if the drug administered has no pain alleviating effects, then on the authority of Cox, the doctor will not be able to rely on the double effect doctrine and this will indicate an intention to cause death rather than relieve suffering (as in Cox). Thus, as the law would therefore treat this as murder, then there would be no difference in law between this and smothering them with a pillow. Morally though, surely there is a difference. Yet Dr Munro must have known that his actions were inappropriate and that this could therefore have lead to criminal charges. Doctors have faced heavier punishments for lesser offences, so it was surprising that Dr Munro was given no warning. Dr Munro could use an ethical argument in support of his case, alluding to the problematic distinction drawn within the laws governing abortion late in pregnancy and killing neonates. The Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990) ascertains that abortion may be performed lawfully, with no time-limit restriction, as long as at least one of the lawful grounds for an abortion is met.32 Thus, one can abort (or ‘kill’) a foetus at 36-week gestation,33 and yet according to the strict legal position, it is not permissible to ‘kill’ a neonate at 28 weeks (gestation) regardless of the baby's condition. The distinction drawn here is surely ethically contestable. Some ethicists argue that there is no distinction between killing and letting die (otherwise described as acts and omissions).34 Morally, however, there is surely a clear distinction between the two, not least in the intent and motive.35 Likewise, in reference to this case, it could be argued that there is no ethical distinction between turning off the ventilator and injecting the baby with pancuronium. After all, both are deliberate acts; the only difference being, that in the former, the intention is to ‘let the baby die’, whereas in the latter, the intention is to kill. From a clinical and legal perspective, the difference is that indirectly turning off the ventilator or withholding nutrition hastens death, whereas the other directly (injecting pancuronium) causes death. In terms of where the line should be drawn between ‘killing and letting die’, doctors must first respect the RCPCH guidelines,36 according to which, ‘withdrawal of life sustaining treatment’ is not seen as active killing: Withdrawal of life sustaining treatment in appropriate circumstances is not seen by the courts as active killing, nor as a breach of the right of life under article 2 of the European Convention on Human Rights. Where withdrawal of ventilatory support does not lead to death, it must be made clear that euthanasia is not appropriate and that palliative care should be offered.Based on the fact that Dr Munro's actions did not (according to the GMC and Procurator Fiscal) overstep the mark, then what would constitute overstepping the mark when administering treatments which hasten death? This is a difficult question, and not one which can be answered easily, in the light of the outcome of this case. It appears that this boundary between killing and letting die can easily be distorted (perhaps for the good) by the medical profession. There is some evidence to suggest that covert euthanasia is practised by a small minority of doctors.37 Legal boundaries are imprecise at present in guiding best practice for doctors who perform unlawful acts with good motive. In theory, from a purely evidential point of view, cases such as Munro's could potentially result in a criminal charge. In practice, public interest and sympathy mean that a compassionate jury may not convict, as illustrated by the aforementioned Gilderdale case. If indeed, actions like this are acceptable in our society, then should the law not be changed to accommodate this? VII. CONCLUSION Unfortunately, neither English nor Scottish law makes allowances for the doctor who sympathetically cuts life short by one minute compared to the murderer who performs a violent and calculated act on the street. I believe Dr Munro was clear as to his actions and intentions and despite feeling under pressure at the time, it was never a requirement to act in the way he chose. Instead he believed that acting to alleviate suffering justified the incidental shortening of life in this case. He took a calculated risk in attempting to resolve a disturbing and upsetting situation. I consider this to be an unusual case where a doctor has, seemingly, used his initiative to ease pain and suffering for both sets of parents and babies X and Y; both babies were terminally ill and close to death regardless of Dr Munro's actions. While compassionate grounds alone should not distract or detract from Dr Munro's actions, such grounds seemingly go some way towards supporting the use of a drug which is not medically indicated. This may well offer justification for other forms of ‘hastening death’ or ‘euthanasia’ on compassionate grounds. Notwithstanding this, I would, on the whole, agree with the outcome of this case considering the exceptional circumstances, although Dr Munro was fortunate to be dismissed from the GMC FTP Panel hearing with no repercussions. Had a prosecution been brought by the Procurator Fiscal, then I concur with Anne Morris: … he admitted doing something which, on the face of it, could have led to criminal charges. Of course, a jury faced with the desperately sad facts in these cases might not have convicted. But that is evidence of the public attitude to what is acceptable treatment at the end of life. Sympathy for the doctor, parents and patients does not alter the law.38In certain ways, this case echoes that of Daniel James.39 Both acts have assisted death (one of assisting a suicide and the other verging on euthanasia). Both parties avoided prosecution, partly due to the exceptional circumstances surrounding the facts. In my view, public interest factors against prosecution in the Munro case are as follows: How should similar cases be approached in the future? As I consider this to be an exceptional case, I would argue that future instances of this nature might be treated in a less lenient manner. A distinct line has to be drawn and this needs to be clearly defined by law, so that doctors are made fully aware of their responsibilities in specific situations. If this line is not clarified, the door is left open for the medical profession to alter moral and ethical boundaries further. Unusual and exceptional circumstances can, however, still arise and if the doctor is able to prove that he acted in the best interests of the patient, in a situation not covered by guidelines, then the case would need to be investigated. Physicians will continue to be challenged until the law gives better guidance regarding mercy killings and euthanasia. Both babies were in the final minutes of their lives; one could not ‘exclude the possibility’ that these babies were suffering distress, which Dr Munro said he aimed to relieve. Neither Dr Munro nor the family stood to gain anything from hastening the deaths of Baby X and Baby Y. The parents of each baby ‘fully supported the doctor's actions and were grateful to him’.40 At no time, before, during or after the drug was administered, did they raise a complaint. Dr Munro has said he would not act in the same way again and there remains no danger to the public should he continue practising as a doctor. Conflict of interest statement. None declared. 1 M Brazier and E Cave, Medicine, Patients and the Law (4th edn Lexis-Nexis and Penguin, London 2007) 490–516. 2 Withholding or Withdrawing Life Sustaining Treatment in Children: Framework for Practice (2nd edn RCPCH, London 2004) 21. 3 S Wall and J Partridge, ‘Death in the Intensive Care Nursery: Physician Practice of Withdrawing and Withholding Life Support’ (1997) 99 Paediatrics 64. 4 GMC Fitness to Practise Hearing of Dr Munro. 5th–11th July 2007. Minutes on file. 5 Described by Andrew Long of the GMC in ‘Doctor “hastened babies” deaths’ BBC News Report accessed 15 July 2009. 6 K Galloway and M Yaster, ‘Pain and Symptom Control in Terminally Ill Children’ (2000) 47 Pediatric Clinics of North America 711. 7 Above, n 4, 3. 8 According to the Munro FTP panel minutes: Dr Munro also faced charges relating to his record keeping including that the records were inadequate (admitted and proved), misleading (not proved), below the standard to be expected of a registered medical practitioner (admitted and proved except in relation to allegation 8b) and dishonest (not proved). He also faced allegations that he had mislead the investigation when asked during a telephone conversation with Dr A, clinical Governance Support Practioner on 4 January 2006 if he had ever prescribed pancuronium for the treatment of agonal gasping, prior to its use in the case of Baby X. Dr Munro replied that he had not, although a subsequent review of cases revealed the use of pancuronium by Dr Munro in the case of Baby Y. He faced charges that his conduct in this instance was inaccurate (admitted and proved), misleading (proved), below the standard to be expected of a registered medical practitioner (proved), and dishonest (not proved). 9 ‘The panel accepts that in the particular circumstances in the cases of both Baby X and Baby Y you administered pancuronium believing that they were in distress that had not been, and could not be, relieved by morphine. Having regard to the lack of clear, specific, professional guidance and that it is undisputed that your intention was to relieve suffering rather than to hasten death, the panel is satisfied that at all times you sought to act in the best interest of each baby’ (at 11). 10 ‘In the judgment of the Panel, the concerns raised by the facts are not so serious as to raise the question whether you should continue to practice either with restrictions or at all. Accordingly, the Panel has determined that your fitness to practice is not impaired by reason of misconduct … you have insight into the failings which have been highlighted by this case and that there are no issues of patient safety that need to be addressed. The Panel has concluded that it is neither necessary nor proportionate to issue a warning. The Panel has therefore determined to conclude your case by taking no further action’. Above, n 4, 12–3. 11 R v Cox [1992] 12 BMLR 38. 12 ‘A doctor who answered the prayer of a patient desperate to die’ The Independent (10 April 2005) accessed 1 August 2010. 13 ‘Questions about the decision to prosecute Kay Gilderdale’ CPS (26 January 2010) accessed 15 July 2010. ‘Mother cleared of ME daughter's attempted murder’ BBC Online (25 January 2010) accessed 15 July 2010. 14 ‘Jury heckled over murder verdict for mother Frances Inglis who acted out of love’ Times Online (21 January 2010) accessed 15 July 2010. 15 (1981) 12 BMLR 1. 16 A Morris, ‘Fitness to Practice and the Ethics of Decision-making at the End of Life: Dr Michael Munro’ (2007) 23 Tottels Journal of Professional Negligence 228. 17 Carried out on the Lexis-Nexis newspaper database on 25 June 2009. 18 ‘Concerns at deaths of babies’ Aberdeen Evening Express (15 May 2006). 19 An attempt was made to contact the Procurator Fiscal, however their stance was that they do not comment upon individual cases. Contact was made with two senior legal scholars in Scotland who advised of the practices of the Fiscal and confirmed that no other information was in the public domain. 20 It is not known which journal paper Dr Munro is referring to here. It could possibly be P Perkin and D Resnik ‘The Agony of Agonal Respiration: Is the Last Gasp Necessary?’ (2002) 28 J. Med. Ethics 164. This paper provides a logical and ethical argument for giving muscle relaxing drugs during agonal gasping. 21 ‘Doctor felt babies were suffering’ BBC Online (9 July 2007) accessed 15 July 2010. 22 ‘Doctor denies misconduct for injecting dying babies’ The Guardian(9 July 2007) accessed 11 July 2009. 23 Above, n 5. 24 ‘Death case doctor tells of harrowing year on remand: Hospital consultant faces continuing uncertainty over professional future after judge imposes a suspended jail sentence for lethal injection’ The Independent (22 September 1992) accessed 15 July 2010. 25 Above, n 5. 26 L Koniaris and others, ‘Inadequate Anaesthesia in Lethal Injection for Execution’ (2005) 365 The Lancet 1412. 27 P Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams (Faber and Faber, London 1986) 171: ‘If the first purpose of medicine, the restoration of health, can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life’. 28 Above, n 4, 9. 29 H Kuhse, ‘Response to Perkin and Resnik: The Agony of Trying to Match Sanctity of Life and Patient-centred Medical Care’ (2002) 28 J. Med. Ethics 270. 30 Above, n 20. 31 Above, n 20. 32 See s 1 as amended by s 37 of the Human Fertilisation and Embryology Act 1990. Only s 1(1)(a) has a 24 week time limit. 33 If, for example, there is a substantial risk that if the child was born it would suffer serious mental or physical disabilities. 34 For discussion see J Rachels, ‘Active and Passive Euthanasia’ (1975) 292 N. Engl. J. Med. 78. 35 R Gillon, ‘Euthanasia, Withholding Life Prolonging Treatment and Moral Differences Between Killing and Letting Die’ (1988) 14 J. Med. Ethics 115–7. 36 Above, n 2, 21. 37 R Magnusson, ‘Euthanasia: Above Ground, Below Ground’ (2004) 30 J. Med. Ethics 441. 38 Above, n 16, 237. 39 ‘Decision On Prosecution—The Death by suicide of Daniel James’ CPS (9 December 2008) accessed 15 July 2009. 40 Above, n 5. © The Author [2010]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com TI - THE CASE OF DR MUNRO: ARE THERE LESSONS TO BE LEARNT? JF - Medical Law Review DO - 10.1093/medlaw/fwq024 DA - 2010-01-01 UR - https://www.deepdyve.com/lp/oxford-university-press/the-case-of-dr-munro-are-there-lessons-to-be-learnt-u005vtkLql SP - 564 EP - 577 VL - 18 IS - 4 DP - DeepDyve ER -