#1757 - Suicide And Euthanasia - Medical Law

What does the right to die entail?

Is there a right to refuse treatment?

• Competent patient refusing treatment

  • In Burke v GMC,

    • Lord Phillips (affirming lone line of cases)

      • A competent patient is entitled to refuse treatment that is objectively within their best interests.

  • Re B (Adult: Refusal of Medical Treatment): Ms B suffered a haemorrhage to her spinal column, which required invasive surgery. While she later recovered, a subsequent problem which rendered her tetraplegic and having to breathe on a ventilator. She wished to have it withdrawn, but her living will was not specific enough. She was able to communicate her desire to have treatment withdrawn.

    • Butler Sloss P

      • While there might be difficulties in assessing mental capacity, it is most important that doctors should not confuse the question of mental capacity

        • with the nature of the decision made by the patient, however grave the consequences.

      • Since Mrs B has capacity, and has expressed her clear wish for treatment to stop

        • The medics continuing treatment are liable in tort to her for assault.

• Advance Directives

  • MCA 2004 s.4: requires doctors to make a decision based on the best interests of patient in front of you as of now

  • This leads to some tension with s.26(1)

    • If P has made an AD which is (a) valid, and (b) applicable to a treatment

      • The decision has the same effect as if he had made it and the capacity to make it

        • At the time when the question arises re: whether the treatment should be carried out and continued

  • Where there is a personality changing illness, does s.26 still trump s.4?

    • E.g. person uses advance directives to say wants to die if get Alzeimers

      • Gets Alzeimers – but appears to be far happier as he is – laughing and joking

      • Then gets chest infection – oral antibiotics would very easily treat them, nothing invasive

        • BUT is the advance directive binding on them?

    • Is there a need to see this as a standoff between s.26 and s.4?

      • May be that Burke dicta applies only to positive advance directives, and therefore doesn’t apply to situation just described

      • May be able to resolve simply by saying that person is happy, then advance directives is not applicable –

        • b/c in this advance directive the person thought they would be unhappy and want to end their life, and this seems not to be the case now.

    • But sometimes tension does arise

      • Foster: good grounds to say s.4 will trump s.26

        • Real personality change which cannot be ignored in legal terms

        • Must determine in the present (s.4)

        • And explanatory notes Code of Prac 5.38

What about other death rights?

• The right to a “good death”

  • Pretty v UK

    • ECHR:

      • States must refrain from inflicting cruel and inhumane treatment

        • Suffering that flowed from a naturally occurring illness could be covered where it is exacerbated by treatment,

          • whether flowing from conditions of detention, expulsion and other measures for which the authorities can be held responsible.

    • Me: Implication of the judgement is that adequate healthcare must therefore be provided by states

• Incompetent patients and best interests

  • The right not to have doctors try and save life no matter the cost:

    • Airedale NHS Trust v Bland: P in PVS – could doctors withdraw ANS treatment?

      • Lord Goff:

        • A is still alive, but while sanctity of life is a fundamental principle, it is not absolute

        • There is no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances.

          • Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist.

No right to treatment being continued at patient’s request (sort of)

• R(Burke) v GMC [2005] B’s disease meant that at some point in the future he would require artificial nutrition and hydration. He was concerned the GMC guidance was inconsistent with law, and did not want ANH withdrawn if he became incompetent. He argued that withholding ANH would be contrary to Arts 2, 3 and 8, especially where he had made it clear he wished treatment to continue.

  • Lord Phillips MR

    • While a competent patient can refuse treatment that is objectively in their best interests, as personal autonomy prevails.

      • That same right does not entitle the competent patient to insist on receiving a particular medical treatment

        • While a doctor can give options and describe the benefits and disadvantages, and P can make additional suggestions

          • If D does not think it is clinically indicated has no legal obligation to provide it

    • Where ANH is necessary to keep the patient alive, the duty of care will normally require the doctors to supply ANH

      • Where a competent patient, regardless of the pain and suffering, makes it plain that he wishes to be kept alive, this duty will persist

        • Indeed the doctor who deliberately interrupts this with the goal of terminating P’s life would be guilty of murder.

• Burke v UK

  • ECtHR

    • If B lost capacity, a doctor would be obliged to take account of his previously express wishes and those of persons close to him

      • As well as the opinions of other medical personnel, and if there was any doubt or conflict, to approach a court

      • This does not, in the Court’s view, disclose any lack of due respect to the crucial rights invoked by B.

Is there a right to commit suicide?

• While it was once a crime to attempt to or to commit suicide, it is no longer the case

  • Per Suicide Act 1961, these were decriminalised on the basis that those who have attempted suicide do not need the ministrations of the criminal law

    • But rather those of medical and psychiatric professionals

• So while there might not be a claim right, there is perhaps a liberty

  • So a claim right to suicide would be more than decriminalising it – it may be a right to the state providing support or allowing other agencies to grant the conditions necessary for it to take place

    • It is an entitlement which you could expect another to provide - E.g. child has a claim against parents for them to protect and support him

  • A Liberty, in contrast, is the freedom from the interference – a right to non-interference when pursuing the liberty

    • So here, the fact that suicide is not a crime but the law is not encouraging it suggests that the law is prepared to permit it as an individual decision, but does not wish to encourage it or let others be involved in procuring it.

Impact of the ECHR and HRA 1998 – confirms that appears to be a liberty, not a claim

• Article 2 – the right to life

  • R(Pretty) v DPP – P argued that the right to life in Art 2 included a right to control the manner of one’s death and therefore a right to commit suicide

    • Lord Bingham

      • The starting point must be the language of the article.

        • The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life.

      • The article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances.

        • An article with that effect cannot be interpreted as conferring a right to die

          • or to enlist the aid of another in bringing about one's own death

    • ECtHR

      • The Court is not persuaded that “the right to life” guaranteed in Article 2 can be interpreted as involving a negative aspect.

        • While for Article 11, the freedom of association was found to involve not only a right to join an association but a right not to join one

          • the Court observes that the notion of a freedom implies some measure of choice as to its exercise.

      • Article 2 of the Convention is phrased in different terms.

        • It is unconcerned with issues of the quality of living or a person’s choices at the direction of their life

        • Article 2 cannot, w/o a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die.

• Art 2 – State has no duty (and perhaps cannot justify) restricting competent adults from committing suicide. But duty to stop incompetent patients in their care from suicide.

  • Savage v Essex – duty on public authorities to prevent suicide of incompetent patients

    • Lord Scott

      • As to persons known to be a suicide risk, the state has no general obligation, either at common law or under article 2(1) ,

        • to place obstacles in the way of persons desirous of taking their own life.

        • The positive obligation under article 2(1) to protect life could not justify the removal of passport facilities

          • from persons proposing to travel to Switzerland with suicidal intent.

      • Children may need to be protected from themselves, so, too, may mentally ill persons but adults in general do not.

        • Their personal autonomy is entitled to respect subject only to whatever proportionate limitations may be placed by the law on that autonomy in the public interest.

          • The prevention of suicide, no longer a criminal act, is not among those limitations

    • Lord Roger

      • In terms of Art 2 , health authorities are under an over-arching obligation to protect the lives of patients in their hospitals.

        • They must employ competent staff and adopt systems of work which will protect lives of patients

      • There is an additional operational obligation which arises if P is a known suicide risk

        • In these circumstances Art 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide.

          • If they fail to do this, not only will they and the health authorities be liable in negligence,

          • but there will also be a violation of the operational obligation under Art 2 to protect the patient's life

          ...