#3534 - Euthanasia - Medical Law

Suicide Act 1961

• Suicide/attempted suicide = not an offence

• Aiding, abetting, counselling & procuring suicide = offence

• Not necessary to prosecute every case of assisted suicide

Suicide as a “liberty right”

1. Claim – signifies entitlement (activity regarded as proper to expect)

2. Liberty – activity regarded as permissible but not approved of

• R (Purdy) v DPP – P, sufferer of multiple sclerosis, challenged lack of clear DPP guidance re prosecution of those assisting suicide by travelling to Switzerland as breach of her & her husband’s HR; held: decisions to seek assisted suicide falls within Art 8(1), interference w/which could be justified under Art 8(2), but it had to be justified by “law” which in turn required obligation to be sufficiently clear.

• Greasley: it wasn’t legally necessary for court to order DPP to clarify his long standing policy (there was legal elbow room available) & such clarification isn’t progressive development b/c previous practice of wilful blindness to certain cases, whilst not clarifying policy to such effect, was most satisfactory approach

Right to Die

• Cory J in Rodriguez v AG of British Columbia – dying is an integral part of living and right to die w/dignity should be as protected as any other aspect of right to life. state prohibition forcing painful, dreadful death on rational but incapacitated terminally ill is an affront to human dignity

• Pretty v UK – choosing manner of death could be included as an aspect of right to life but interests of state & society will justify interference w/it.

• Grayling: right to life = right to a minimally decent life, so if P’s life is intolerable, their right to life may entitle them to die

• Ford: right to die embodies a critical paradox of personhood – criteria of personhood include consciousness, self awareness, ability to engage w/others. Acc to personhood theory, anyone possessing these qualities is unequivocally a person but then it is argued they have a right to die. The only way theory succeeds is by accepting a version of personhood where value is a spectrum, so that one P is less of a person than another – this is dangerous jurisprudence

• Harris: there’s no personhood paradox b/c criteria is a set of capacities which make it possible for P to value own existence. The wrong of ending life is deprivation of something he values. Once he doesn’t value own existence, he can’t be wronged by being deprived of it. It’s not life per se that’s being valued but existence of particular sort. Persons are creatures whose value of existence is constituted by interests & preferences, so to think of that value as simply one of maintaining organic life is to misunderstand the meaning of value of life. Ultimate value isn’t inalienable either – Ps are entitled to have it respected but aren’t doomed to have it respected and can indeed waive it

Duty to Die

• Hardwig – people may be under duty to die. They must accept that towards the end of their lives, once seriously ill, they become a burden to family and friends, which can be intolerable and have devastating consequences

• Baroness Warnock – if you are determined, you’re wasting people’s lives, your family lives and resources of NHS

• In any case, a moral obligation only!!

Doctrine of Double Effect

• Doc gives P drugs to kill him & death results = murder

• Doc administers pain relieving drugs in acc w/med practice & death results incidentally = no offence

• Me: a silly & subjective distinction – doc must make sure he doesn’t have intent of killing all the way through? Entirely subjective. Euthanasia disguised?

• R v Adams – if P’s health couldn’t be restored, doc’s entitled to do all proper & necessary to relieve pain, even if it incidentally shortens P’s life

Persistent Vegetative State

• Legal Position

1. Switching off life support = omission = no breach of duty by the doc (passive euthanaisia)

2. Active euthanasia = a crime

• NHS Trust A v M – 2 Ps in PVS w/v. small chance of recovery, suffered particular difficulties in accepting artificial nutrition/hydration, decl. for withdrawing it granted by court. Must establish:

1. Irreversibility of PVS w/high certainty

2. Continuation of treatment isn’t in P’s best interests

Art 2 ECHR – negative obl. on state to refrain from taking life intentionally “deprivation of life” requires act w/intent, not an omission. Also, positive obl. on state to provide life sustaining treatment where it’s in P’s best interests, not where it’s futile.

• Airedale NHS v Bland – Bland suffered horrific injuries, 3 years in coma, PVS. Family/docs sought Decl. of legality to switch off life support. Court accepted docs had intent to kill (virtually certain under Woolin) but withdrawal constituted an omission b/c it returned P to the condition he was in when entered hospital. Doc’s duty was to provide treatment in P’s best interests & didn’t apply where treatment would instead harm P.

• Keown – reasoning in Bland should be reconsidered since it left the law in morally misshapen state, permitting passive & prohibiting active med killing. Should reinstate the law’s consistent application of sanctity of life principle which has been misunderstood in Bland. Law Lords may have confused it w/vitalism. Sanctity of life doesn’t support distinction b/w act and omission in context of murder. #

• McGhee – distinction b/w passive & active euthanasia can be supported on the basis that euthanasia interferes w/nature’s dominion whereas withdrawal of treatment restores to nature its dominion after we’ve taken it away by artificially prolonging P’s life. Distinction thus has strong moral basis and isn’t not merely a mask for public policy considerations.

• Justice Holmes – where to draw the line is a question in pretty much everything worth fighting for in the law

• Impact of HR

• Rodriguez v British Columbia (Canada) – terminally ill P applied to have a section of Crim. Code struck down arguing it violated Canadian Charter of Rights & Freedoms. Held: prohibition of euthanasia reflected part of the fundamental society values and couldn’t be in violation of fundamental justice, including rights to liberty, life, security of person.

• Pretty v UK – Art 2 (right to life) imposed a duty on state to protect life and couldn’t be taken to include a right to die. A right to determine issues of death could fall under Art 8 (right to private & family life) + possible infringement of right to freedom from discrimination (Art 14) b/w people who can commit suicide and those who need assistance but justified b/c of potential wider implications.

• Savage v South Essex NHS Trust – P’s mom committed suicide while detained under MHA, P sought damages from Trust b/c, as public authority, it was liable for breach of Art 2(right to life) & breach of Art 7 (P’s own right to family life). Held: for breach under Art 2 had to show gross negligence. On appeal, overturned – enough to show Osman test is satisfied (real & immediate risk to life + Authority didn’t do everything necessary to avert it). Trust liable.

• McLachan – should give serious & sympathetic consideration to legalising voluntary active euthanasia and assisted suicide but docs shouldn’t be allowed to perform the procedure b/c would be contrary to professional duty & patient/doc trust

• George K – legalising euthanasia would have negative impact on women who are more prone to it. Where assisted suicide is legal, there’s disproportionate number of women ending their lives (e.g. Netherlands)

• NB: latest proposals under Lord Falconer (2 docs decide, mentally incapacitated Ps are excluded, min 2 weeks to consider the decision) no govt. plans to reconsider, though

Treatment of Severely Disabled Children

• Charlotte Wyatt Litigation – disputes b/w docs & parents on what should be done if a seriously ill/disabled baby incurred infection which would kill her w/out ventilation; docs opposed it b/c would deprive her of peaceful death in parents arms & be very painful; held: child’s welfare & best interests are paramount, strong presumption in favour of a course of action prolonging life (can be rebutted); ask whether life would be intolerable from baby’s POV & draw up a balance sheet.

• Glass v UK (the case of David Glass)

• Morris: judges apply a legal test in an ethical framework so must articulate legal rules & ethical principles underlying them rather than delegating to the docs. Court offers a forum for articulating different views & remains the best place to settle such disputes. Doc’s views deserve respect but aren’t conclusive b/c each has own ethical framework (i.e. subjective morality)

3 key principles

1. Vitalism – human life has absolute moral value and it’s never justifiable to kill another

2. Sanctity of life – human life is a fundamental basic good but an act which shortens P’s life can be justifiable if not done w/intent to kill; i.e. it may be justifiable to withdraw treatment b/c it offers no hope of benefit (not b/c P’s life isn’t worth living!)

• Arguments for

1. Life is valuable in and of itself – rejecting this would mean valuing lives of healthy more than those of the ill

2. Emphasis on deeply intuitive sense of relatedness/connectedness to other people/world – each life has value for the whole society

• Arguments against

1. Life is precious but shouldn’t be valued for its own sake – there comes a point when it’s so wrecked w/pain that it’s special value is lost

2. There’s a difference b/w having a life and being alive – sacredness of life turns on having a life worth living (Rachels)

3. ...