#1721 - Human Rights Issues In End Of Life Issues - Medical Law

Human Rights Issues in End of Life Issues

Where we’re at

• Art 2: engaged to protect the vulnerable, no right to death contained within (Haas and Pretty)

• Art 8(1) engage for those who wish to die (Purdy); but not positive rights (Haas)

• Art 8(2) engaged to protect the vulnerable, so can interfere with Art 8(2) (Purdy; Haas)

• Art 14 – not engaged/justifiable (Pretty)

  • Herring: more emphasis on rights of vulnerable than positive right to die. Human rights hasn’t really liberalised the law in this area.

Art 8

• ECtHR in Pretty

  • Essence of the Convention is respect for human dignity and freedom without negating the principle of sanctity of life

  • In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in decrepitude which conflict with strongly held ideas of self and personal identity.

• Purdy

  • Baroness Hale:

    • Clearly the prime object must be to protect people who are vulnerable to all sorts of pressures,

      • Both subtle and not so subtle, to consider their own lives a worthless burden to others

      • Herring: not just people lacking autonomy, but people being pressured as well – vulnerable = very broad category

    • Object must also at same time but protect exercise of genuinely autonomous choice.

      • The factors which tell for and against such a genuine exercise of autonomy from pressure will be important

  • Lord Brown

    • Suppose a loved one in desperate and deteriorating crimunstances, regards the future with dread and has made a full informed and voluintary decision to die

      • Needing another’s compassionate help and support to accomplish that end

      • Is assistance in those circumstances necessartily to be deprectiated?

    • Seems to me that it would be possible to regard the conduct of the aider as altruistic rather than criminal

      • Conduct to be understood out of respect for an intending suicide’s rights under Art 8,

        • Than discouraged so as to safeguard the right to life of others under Art 2.

Seale C’s decisions

• 63% of deaths involved an end of life decision by a medical practitioner

  • Might include switching off ventilator, pain relief double effect – decision made to do or not to do something

• Of these, 32.8% involved a medical professional intervening to alleviate pain or undesirable symptoms

  • With potentially life shortening effect

• And 30.3% was where live saving treatment was withdrawn or withheld

• 0.16% involved euthanasia with the request of the patient

• 0.33% euthanasia w/o the patient’s consent

• Herring: role played by double effect = very significant

A more recent survey

• Religious views of doctors:

  • Doctors which such views much less likely to make decisions leading to death

Murder

• Adams

  • Devlin J

    • If the acts done are intended to kill and do, in fact kill

      • It dopes not matter if a life is cut short by weeks or months, it is just as much murder as if it were cut short by years

• Airedale NHS Trust v Bland

  • Lord Goff

    • It is not lawful for a doctor to administer a drug to his patient to bring about his death

      • Even if that course is prompted by the humanitarian desire to end his suffering, however great that suffering may be

• R v Inglis

  • Mum knew what she was doing in killing disabled son

    • No loss of control or diminished responsibility

    • Intent to kill

  • BUT only imposed 5 years minimum sentence

Special rules for doctors?

• R v Arthur

  • Farquharson J (to the jury)

    • Think long and hard before deciding that doctors of the eminence we have heard

      • Have evolved standards which amount to committing crime

• R v Moor

  • Hooper J

    • You may consider it a great irony that a doctor who goes out of his way to care for a patient ends up facing the charge he does

• R v Adams

  • Devlin J

    • If the first purpose of medicine, the restoration of health can no longer be achieved

      • Doctors can do other things which may have incidental effect of shortening life

• Assisted Suicide s.2(1A) (amended by Coroners and Justice Act 2009)

  • (1A) the person referred to in subsection 1(a) need not be a class of persons known to D

  • S.2(2) If on a trial of murder or manslaughter it is proved that the accused aided abetted and counselled or procured the suicide of the person in question

    • The jury may [but need not....] find him guilty.

  • S.2(4) no proceedings shall be instituted for an offence under this section except by or with the consent of the DPP

• DPP following the Purdy decision

  • Herring: 2 particular themes that run through the guidance

    • Was autonomous choice by person wishing to commit suicide

      • E.g. must be over 18

      • E.g. whether mental capacity affected

      • E.g. whether settled decision

    • And a theme of compassion – motivated by wish to help rather than personal gain

      • E.g. did they have a terminal illness

        • Herring: not a requirement, just one of the factors to take into account

      • E.g. motivated by compassion

      • E.g. was victim able to commit suicide themselves?

Act and Omissions

• Lord Mustil in Bland

  • It can be asked why, if the doctor, by discontinuing treatment is entitled in consequence to let his patient die

    • It should not be lawful to put him out of his misery straight away, in a more humane manner by a lethal injection, rather than let him linger on in pain until he dies

    • Once euthanasia is recognised, it is difficulty to see any logical basis for excluding it in others

• Jackson:

  • Patient A wants to continue living, Patient B does not

  • Doctor switches off life machine

    • In relation to Patient A, b/c the doctor is under a duty to treat her switching off the machine is characterised as an act, and the doctor may be guilty of murder

    • But in relation to patient B, switching off the machine is an omission

  • BUT Herring: might be able to characterise the first as an omission in breach of duty

• Goodman: “The Case of Dr Munro” (2010)

  • Goodman took baby of ventilator b/c going to die soon, put it in parents arms

  • Unfortunately, baby began to convulse, distressing the parents. So Dr M ran over and gave lethal injection

    • Brought before GMC, GMC decided that exceptional case motivated by compassion, so perfectly reasonable.

    • Not prosecuted

• Keown: Dobule effect

  • The act one is engaged in it not itself bad

  • The bad consequence is not a means to a good consequence

  • The bad consequence is foreseen but not intended

  • There is a sufficiently serious reason for allowing the bad consequence to occur (e.g. can’t give big morphine injection to someone in pain if it will pass and they will recover)

• Herring:

  • Is a bit crafty = presented as intention and foresight

    • “sufficiently serious for allowing bad consequence” – this is a justification of consequences

    • Smuggles in a moral assessment of what is the right thing to do.

      • b/c with just first three bits, would justify killing a patient who would otherwise recover.

The view of clinicians

• Herring:

  • Double effect useful as ethical tool

  • But not great for law

    • 2 things we want from the law

      • 1. Susceptible to proof

        • How can we know looking at a doctor that they don’t intend something?

      • 2. Doctors need to know what it lawful and what is not

        • Wilks: very difficult for me as a doctor to know whether you can give injection

          • Contrast to life support machine – need to be satisfied of various medical tests, tick the boxes

          • Intention is irrelevant

            • Same should be for where pain relieving drugs

Autonomy

• Harris: it is simply to control the life of a person who has her own autonomous view about how life should go

  • the tyranny des not require explication in terms of the nature if sanctity of life, but rather in terms of respect for persons

  • should not be b/c right, or b/c sancityt of life but b/c one of the great important decision

• Dworkin: Certain decisions are momentous

• The lovesick teenager

  • Autonomy fails here

  • If we’re going to...