All
human beings should have the right to decide what should happen to their own
bodies and in particular they should be able to decide when their lives should
come to an end.
Do
you agree with this?
If
the Government were to decide in favour of some form of voluntary euthanasia or
assisted suicide, what practical issues would have to be addressed?
It is accepted that each person has an autonomous
right to decide what happens to their body. However when someone decides they
want euthanasia, opinions vary. This brings the quarrel between a belief for
self determination and societies’ belief of the sanctity of life.
Euthanasia can be defined as a good, dignified,
premature death with the need for another person involved. This essay will
discuss the right to voluntary euthanasia-that is where someone wishes euthanasia
to bring an end to their life. It will also address any relevant practical
measures that would need to be taken if the Government were to legalise voluntary
euthanasia.
Currently the criminal law makes no concessions for
the motives in aiding or abetting the termination of another persons’ life. Euthanasia
falls within the criminal law of homicide and assisted suicide. The law refuses
to “leave the issue in the hands of
doctors; it treats euthanasia as murder.” 1 This belief is based on the sanctity of life principle
that “all lives are intrinsically
valuable, (that) it is always wrong intentionally to kill an innocent human
being.” 2 This
view is often forwarded by the religious community (most notably the Catholic
Church) and also by many doctors and factions of the BMA.
However, high profile cases in the media such as that
of Diane Pretty have left the majority of the public in favour of voluntary
euthanasia. One commentator summed the views of many up by saying “If I had my way I could say goodbye…I could
choose my time and be calm and collected about it. I have had a good life and I
would dearly like a good death…my last wish is to die with dignity.”3
Some however “who
oppose euthanasia suggest that death with dignity is best achieved with the
therapeutic control of symptoms to ease a patient gradually from life into
death.”4
This view is flawed as it leaves death as “the
ultimate form of consumer resistance” 5 to a palliative care system which is more concerned
with keeping patients alive than providing dignity.
Voluntary euthanasia can be passive and active. The
difference can be determined by whether an omission or a positive act brings
about the death. Passive euthanasia has
been
given a legal framework within the common law. Patients have the right to
refuse treatment even if it leads to their own death.
In overruling Leigh
V Gladstone 6 where
force feeding suffrojets on a hunger strike was
allowed Home Secretary V Robb 7
set a basis for passive euthanasia. The right to
passive euthanasia was furthered in Nancy V Hotel Dieu
de Quebec 8 where
a woman, paralysed from the neck down successfully managed to have her life
sustaining ventilator switched off.
In a desire against euthanasia the medical profession
will often question capacity to consent. It is widely accepted that those who cannot
understand the implications of their wish to die can be treated against their
will. This was shown in B V Croydon HA 9 where a
patient lacking capacity couldn’t refuse nutrition. Doctors have also made
unsuccessful attempts to claim lack of capacity in cases such as B V An NHS
Trust 10 and R(on the application of
Pretty) V DPP 11
(both discussed below). Providing the patient fully understands the decision of
euthanasia, their general mental health is irrelevant (Re JT 12).
A similar problem is found in the case of euthanasia
and children. Parents should not be able to refuse treatment or successfully
request euthanasia. In those cases, the child is correctly made a ward of court
(Re B 13).
Passive euthanasia can however break one of the
founding principles of euthanasia which is that the death must be dignified. Examples
such as starvation or suffocation through withdrawal of food or artificial ventilation
lack the desired dignity. In fact it can be very painful or at the least
grossly uncomfortable.
Active euthanasia, whilst painless and swift remains
in the law of homicide. The courts have however developed certain loopholes in
the law. In Re A (Conjoined twins 14) the
doctrine of necessity was invoked where a positive act of surgically separating
two conjoined twins which shared vital organs was allowed. There was argument
about whether the act of separation was an omission as Lord Mustill
argued when he stated that it was “Indistinguishable
15”
from taking active steps to end a life or a positive act.
A doctrine of double effect allows what most would describe
as active euthanasia providing the physicians’ primary purpose was not to end
his patients’ life. In R V Adams 16, a doctor prescribed high dosages of the pain killer
morphine at the request of his patient to end her life. J Devlin in his
judgement held that “the doctor is
entitled to relieve pain and suffering even if the measures he takes may
incidentally shorten life
17.”
Dr Adams well may have been a lucky
beneficiary of a loophole the courts have developed to allow those performing
euthanasia to escape the criminal law.
Similar circumstances were found in R V Moor 18 where
again a high dosage of morphine had been given to a patient, which was a
significant cause of his death. The judge directed the jury that they should
acquit the doctor unless they were satisfied that his intention was to kill
rather than “to give treatment which he believed
in the circumstances (as he understood them) to be proper treatment to relieve
George Liddell (the patient)’s pain and suffering.” 19
The subjective test in Moor of what the doctor
understands to be proper treatment seems to allow Jury’s greater freedom to
acquit than the objective test of a responsible body of medical opinion which
runs through the majority of the law of medical practise.
In R V Cox
20, had Dr Cox taken advantage of the doctrine of double
effect as opposed to administering the poison Potassium Chloride to his elderly
patient who had requested euthanasia, that he would have escaped liability
under the criminal law. In R V Adams 16, R V Moor
18 and
R V Cox 20,
the patients all requested euthanasia and died very quickly. They all had a
dignified death but Dr Cox was criminally liable whilst Dr Adams and Dr Moor
were not with the only practical difference being what was injected.
Two key recent cases with different results could give
an opening for the legalisation of euthanasia. The cases of B V An NHS Trust 10
and R (on the application of Pretty) V DPP 11 both concerned patients who were paralysed from the
neck down. The difference however lay in the form of euthanasia requested. Ms B
wanted the life sustaining ventilator switched off. Diane Pretty wanted
criminal immunity for her husband so he could bring her life to an end when her
health further deteriorated. Ms B’s application for passive euthanasia was
allowed whilst Diane Pretty’s application for active euthanasia was not.
The case of Diane Pretty may however provide a basis
for the legalisation of active euthanasia. Whilst she was unable to rely on the
European convention of human rights Article 2 (right to life), Article 3 (right
to be free from inhuman or degrading treatment and Article 9 (freedom of
conscience), a window of opportunity has opened from Article 8. Article 8
confers that “everyone has the right to respect for his private and family
life.”
A recent European case of X V Iceland 21 gave
Article 8 a wider scope to incorporate “fulfilment
of ones own personality.” 22
This was further established in Botta V Italy 23 where it
was stated that “the guarantee afforded
by Article 8 of the convention is primarily intended to ensure the
development…of the personality of the individual.” 24 Diane
Pretty argued that “when it comes to
developing individual personality, the interest in determining the timing and
manner of death one of the most fundamental.”
If this is to be accepted, the only hurdle to pass for
those seeking active euthanasia is to prove that the act of terminating life
amounts to part of their life, not death itself. If established, active
euthanasia can be bought within the ambit of Article 8.
I suggest that acts such as giving someone a lethal
injection, bring about the process of dying which according to Grayling “Dying is an act of living; it is indeed one
of the most important events in life.”26 This accepted, whilst death is the antithesis of
life, euthanasia in bringing about the process of dying, is actually part of
living and therefore comes within Article 8. This assertion was helped further
in the case of Diane Pretty when the ECHR recognised that “the way she (Mrs Pretty) chooses to pass the closing moments of her
life is part of the act of living, and she has a right to ask that this too
must be respected.”27
If a similar case to Diane Pretty’s, but with
physician aided death, is bought to the courts, Article 8 in the light of X V
Iceland 21 could
bring about legality for active euthanasia.
In principle I agree that passive euthanasia should be
within the ambit of the law. Whilst the wishes of those seeking to preserve the
sanctity of life must be appreciated, the view of Lord Donaldson in Re T
(Adult: Refusal of Treatment) 28
where a patient wished euthanasia, should be followed. He stated “This situation gives rise to a conflict of
two interests, that of the patient and that of the society in which he lives…
It is well established that the ultimate right of the individual is paramount.”
29
Following from Lord Donaldson’s assertion, it seems
logical that active euthanasia also be bought within the law. Passive
euthanasia and the doctrine of double effect have both used wordplay to create
loopholes in the law allowing euthanasia. The populist opinion is that all
voluntary euthanasia is moral. The law needs to change to reflect the changing
morals of society.
Whilst sections of the population are against active
euthanasia for moral or religious reasons and the BMA have consistently
rejected claims for its legalisation, it is unlikely that Parliament will
legislate in favour of active euthanasia. However as discussed above, they may
be forced to accept it from a binding ruling from the ECHR. The effect of X V
Iceland 21 of
expanding the right to respect for private life set out in Article 8 of the
convention to include respect for the individuals’ personality could have a
vital role in the legalisation of active euthanasia. As explained above, if
Graylings view that dying is part of living, active euthanasia falls within the
protection afforded by Article 8, providing that the patient has capacity to
consent and has done so.
Whilst the majority of legally practised euthanasia
has been passive, the majority of patients wishing euthanasia would undoubtedly
wish it to be active. If administered efficiently by a physician it is more apt
to being painless, quick and undoubtedly more dignified than passive euthanasia
which can be slow, painful and uncomfortable. Active euthanasia emphasises
individual personal autonomy which currently only confers a right to refuse
treatment. It does not confer a right to demand treatment such as a lethal
injection to end life.
Whilst I would suggest that voluntary euthanasia
should be legalised, Parliament is unlikely to do so in the near future. If it
was to not go that far, a defence to homicide of mercy killing should be
created.
If
voluntary euthanasia were to be legalised in some form, there would undoubtedly
be some practical problems to overcome. Objections on moral and religious basis’ have to be at the very least appeased. It would be
very wrong to legalise euthanasia without strict controls and allow dignity to
be breached as firmly as in the instance of American doctor Jack Kevorkian,
alias Dr Death, who promotes the use of his ‘suicide machines’ to people
seeking euthanasia. This is not dignity! This is disgusting commercialisation
on TV of death and must not be allowed.
There is undoubtedly a risk that if the rules
governing euthanasia are relaxed, that many will abuse them. A largely
successful legalisation of euthanasia has taken place in the
Some similarities would have to run through a model
for
There must also be a durable request for euthanasia by
the patient who must be capable of giving consent. The durability of the
request must be over a reasonable period of time leaving doctors entirely sure
that the patients views are not likely to change. Expert clinical advice must
first be sought to ensure the patient has all the facts at their disposal. Advance
directives should be followed only where it is clear expert advice has been
given before the document is lodged and must be precise enough to cover the
situation in question. However Advance directives which give power of attorney
to a proxy should not be followed as strictly as power of attorney should not
be continued once the person granting it is no longer able to understand its
implications (Drew V Nunn 30).
Accordingly all palliative care that can be taken without overly intrusive
measures should be exhausted, before euthanasia is allowed. The patient must
also be suffering such intolerable pain without any reasonable chance of
recovery that their quality of life is seriously impaired.
Whilst the Dutch system works well for them, it must
not be assumed that the same control would work in
At the heart of the question of how to control
legalised practise of euthanasia, lay certain principles. Euthanasia should be
a quick, efficient, painless and dignified death. It must be closely monitored
to ensure that this is given only where the above criteria have been met and
that only the patient benefits.
As I have discussed above, voluntary euthanasia should
be legalised and strictly controlled. If is not, not only will the law be out
of sync with public morals but it will also continue to fail in controlling
euthanasia which with or without legalisation continues to happen on a day to
day basis. At least with the legalisation of euthanasia, death for those
seeking it will be more painless, quick and dignified.
30. DREW V
NUNN (1879) 4 QBD 661
ESSAY DETAILS
1.
G.WILLIAMS, TEXTBOOK OF CRIMINAL LAW(2ND
ED, 1983) AT PG 580
2. J.KEOWN,
“COURTING EUTHANASIA? TONY BLAND AND THE LAW LORDS”, ETHICS AND
MEDICINE, VOLUME 9, No 3 1993
3. C
TAYLOR-WATSON IN MARGARETT DRISCOLL “AFTER A GOOD LIFE, WHY CAN’T WE CHOOSE A
GOOD DEATH?” THE SUNDAY TIMES,
4. C
SAUNDERS, “VOLUNTARY EUTHANASIA”, PALLIATIVE MEDICINE, 1992 VOL 6 AT pp 1-5
5. I
ILLICH, MEDICAL NEMESIS: THE EXPLORATION OF HEALTH, 1975 AT p.149
6. LEIGH V
GLADSTONE (1909) 26 TLR 139
7. HOME
SECRETARY V ROBB (1995) 1 ALL ER 677
8. NANCY V
HOTEL DIEU DE
9. B V
CROYDON HA (1995) 1 ALL ER 683
10. B V AN
NHS TRUST (2002) 2 ALL ER 449
11. R (ON
THE APPLICATION OF PRETTY) V DPP (2002) 1 ALL ER 1
12. RE JT
(1998) 1 FLR 48
13. RE B
(1981) 1 WLR 1421
14. RE A
(CONJOINED TWINS) (2000) 3 FCR 577
15. ibid
16. R V
17. ibid
18. A
ARLIDGE QC, ‘THE TRIAL OF DAVID MOOR’ (2000) CRIM LR 31
19. ibid
20. R V COX
21. X V
22. ibid
23. BOTTA V
24. ibid
25. DAN
MORRIS, “ASSISTED SUICIDE UNDER THE EUROPEAN CONVENTION OF HUMAN
RIGHTS: A CRITIQUE”
26. A.C
GRAYLING “A GOOD DEATH” – GUARDIAN (SATURDAY REVIEW)
27. ibid
28. RE T (ADULT : REFUSAL OF TREATMENT) (1992) 4 ALL ER 649
29. ibid
30. DREW V
NUNN (1879) 4 QBD 661
WORD COUNT:
2499
UP TO DATE
WITH DEVELOPMENTS UP TO COMPLETION ON
BOOKS/REPORTS/ARTICLES
QUOTED OR USED IN THE RESEARCH FOR THIS ESSAY
1.
G.WILLIAMS, TEXTBOOK OF CRIMINAL LAW(2ND
ED, 1983)
2.
J.KEOWN, “COURTING EUTHANASIA? TONY BLAND AND THE LAW LORDS”, ETHICS AND
MEDICINE, VOLUME 9, No 3 1993
3. C
TAYLOR-WATSON IN MARGARETT DRISCOLL “AFTER A GOOD LIFE, WHY CAN’T WE CHOOSE A
GOOD DEATH?” THE SUNDAY TIMES,
4. C
SAUNDERS, “VOLUNTARY EUTHANASIA”, PALLIATIVE MEDICINE, 1992 VOL 6
5. I
ILLICH, MEDICAL NEMESIS: THE EXPLORATION OF HEALTH, 1975
6. A
ARLIDGE QC, ‘THE TRIAL OF DAVID MOOR’ (2000) CRIM LR 31
7. DAN
MORRIS, “ASSISTED SUICIDE UNDER THE EUROPEAN CONVENTION OF HUMAN RIGHTS: A
CRITIQUE”
8. HAZEL
BIGGS, “EUTHANASIA AND DEATH WITH DIGNITY: STILL POISED ON THE FULCRUM OF
HOMICIDE”
9.
JONATHAN MONTGOMERY, HEALTH CARE LAW(2ND
ED, 2003)
10.
BRENDAN GREENE, ESSENTIAL MEDICAL LAW
ARTICLES
TAKEN FROM www.westlaw.co.uk
OTHER
WEBSITES USED
www.euthanasia.com/www.euthanasia.org/dutch.html