#15655 - End Of Life - Medical Law

Learning Objective:

Learning Goals:

Understand the treatment of patients re end-of-life who have capacity

Understand the treatment of patients re end-of-life who do not have capacity

Critically analyse and evaluate the arguments for and against euthanasia/assisted suicide

Central Issues:

Euthanasia involves a doctor deliberately killing a patient. In the UK, this would be murder.

Assisted suicide is also a criminal offence, but the DPP has discretion whether to prosecute. In response to the Purdy case, the DPP has published factors which will be taken into account re exercising this discretion.

It may be lawful to administer a dose of painkillers or sedative that could shorten a patient’s life, by virtue of the principle of double effect.

Competent adults have the right to refuse life-sustaining treatment, which in practice means a night to insist that doctors physically remove them from life support.

Principal arguments in favour of legalising assisted dying are in respect of patient autonomy, compassion, the consistency of the line the law currently draws between lawful and unlawful practices, and the benefits of regulation.

Principal argument against legalising assisted dying are in respect of the sanctity of life, the view that high quality palliative care makes assisted dying unnecessary, the difficulty of ensuring requests are genuine, the negative impact it might have on the doctor/patient relationship, and the dangers of the slippery slope.

Some other countries have legalised assisted dying, but opinions differ re whether this has improved the situation.

In relation to patents who lack capacity, the courts have had to decide whether withdrawing or withholding life support would be in a patient’s best interests. Where life-prolonging measures are futile, or overly burdensome, it can be lawful to withdraw treatment.

Controversy at the end of life

For several reasons, the question of whether it could be legitimate for the medical profession to help patients die has become a prominent issue in recent years. Firstly, patients who would previously have died can now be kept on life support indefinitely. Secondly, medical progress has not been as successful as extending the period during which we are able to lead healthy independent lives, even though life expectancy has increased. Thirdly, the principle of patient autonomy is of increasing dominance in medical law, raising the question of whether a patient has a right to die. Fourthly, in an increasing secular society, less weight is being given to the proscription of suicide and euthanasia. Fifthly, a number of high profile cases have generated significant attention e.g. Purdy and Nicklinson cases.

Terminology

Euthanasia is confined to cases where a doctor or other person helps a patient die. Assisted suicide is confined to cases where the patient is given the means to die by another party, but commits the act themselves. Assisted dying refers to both.

Current Law

Euthanasia

A doctor who deliberately ends the life of a patient commits murder. However, no doctor who has done this has ever been convicted of murder. Both juries and the judiciary treat mercy killings kindly. If someone who is suffering unbearably is killed by a friend or family member, it may be possible to reduce the charge to manslaughter on the grounds of diminished responsibility.

The Nicklinson Case

Tony Nicklinson, who suffered from locked in syndrome, sought a declaration that it would not be unlawful for his GP to terminate or assist in the termination of his life. He also sought a declaration that by criminalising euthanasia and assisted suicide, the law was incompatible with his right to respect for private life (Article 8).

At first instance, the claim was rejected, following which Tony stopped eating and drinking and died 6 days later. Tony’s widow, Jane, pursued the case in the Court of Appeal, which refused to recognise a common-law defence to murder for euthanasia. This rejection was based on four reasons:

There is no self-evident reason why the sanctity of life should give way to the values of autonomy or dignity and there are cogent reasons why sensible people might properly think that it should not.

It is wrong to say that there is a right to commit suicide.

It is not appropriate for the court to fashion such a defence, which is more appropriately a matter left to parliament.

If a defence of necessity cannot be established for assisted suicide, it certainly then cannot be established for euthanasia.

In the Supreme Court, the applicant chose to focus exclusively on whether the prohibition on assisted suicide was compatible with Article 8 (discussed below).

Assisted Suicide

Assisted suicide is a criminal offence punishable by up to 14yrs in prison (Section 2(1) of the Suicide Act 1961), even though suicide itself has been decriminalised in the UK (albeit this does not mean there is a legal or moral right to suicide). In this regard, there are sound policy reasons for this rule e.g. prohibiting suicide pacts, and criminalising the egging on of people online.

Given a person can commit suicide without committing any criminal offence (since suicide has been decriminalised), what policy reasons are there for choosing to implicate someone else in a suicide attempt? Firstly, the individual may be incapable of arranging their own suicide. Secondly, the individual may need expert advice re combination of drugs to achieve a quick and painless death - simply overdosing can lead to prolonged and agonising death.

In recent years, there has been growing pressure on the prohibition on assisted suicide, starting with the Pretty case. Mrs Pretty had been diagnosed with progressive and degenerative terminal illness. Her husband was willing to help her commit suicide, but they were anxious he might be prosecuted. Mrs Pretty asked the DPP to give an undertaking they would not prosecute her husband. She then sought review of his refusal on the grounds that it violated her Article 8 rights. In R (on application of Pretty) v DPP, the House of Lords found there had been no prima facie violation of any of Pretty’s convention rights. Mrs Pretty then appealed to the European Court of Human Rights in Pretty v UK, which recognised that Article 8 was engaged, but that a complete prohibition on assisted suicide was not a disproportionate response to the concern re protecting vulnerable members of society. In particular, it was said the law in this case (section 2 of the Suicide Act 1961) was designed to safeguard life by protecting the weak and vulnerable, especially those who were not in a condition to take informed decisions against acts intended to end life.

Critics of the Pretty decision have noted that the court’s reluctance to issue a declaration cannot be justified on the basis of previous landmark decisions like the Airedale NHS Trust v Bland, or the Conjoined Twins case (both discussed below) edging too closely to the ‘better off dead’ view of human life (as is suggested by the court’s focus on the right to life). The former cases touch on the value of a life, and a best interests assessment for the particular individual (i.e. an autonomy concern), whereas the Pretty case concerned liberty, and the freedom to make choices without the State’s interference. Arguably, in coming to their conclusion, the courts confused the two. Thankfully, the following cases of Purdy and Nicklinson represents steps being taken towards the right direction.

Debbie Purdy and the DPP’s Policy

A few years after the Pretty case, Debbie Purdy, who suffered from primary progressive MS, brought a claim requesting that she be entitled to know the factors the DPP would take into account when deciding whether to prosecute for assisted suicide. The House of Lords held that Mrs Purdy’s Article 8 right was engaged by the DPPs refusal to give more specific guidance on how they might choose to prosecute, and that the DPP must publish their policy identifying the facts and circumstances they’d take into account when deciding whether a prosecution was in the public interest. Specifically, the interference under Article 8 could be justified via 8(2) only if the manner in which the DPP exercised their discretion was accessible and sufficiently precise to enable a person to regulate their conduct accordingly.

Following the decision, the DPP published their policy (DPP Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide) in 2010. The policy focuses principally on the motive of the suspect, rather than on the conditions of the victim (i.e. presumably to probe whether there was an infringement of the victim’s autonomy). Relevantly, the condition of the victim is not given express reference, but arguably, whether or not the suspect was motivated by compassion (one of the factors to be taken into account) will turn on whether the act relieves the victim of suffering.

Interestingly, several of the factors in favour of prosecution are essentially that the suspect was acting in a professional capacity (especially as health care professionals). This is significant for the following reasons:

There is a tension between this and the policy’s focus on the suspect’s motives. A professional assister is unlikely to act for reasons other than compassion.

This makes health care providers nervous about how they should react if their patient tells them they are going to travel to Dignitas. Does providing patients with their medical record count as assisting?

As Lewis argues, this policy may result in...