The Moral Step Back
Jennifer Edwards L.L.B
Department of Law and Criminology
Aberystwyth University
This thesis is submitted for the degree of Doctor of Philosophy
August 2011
Summary
This work aims to make the case for reform to the law on euthanasia being necessary.
There are certain constructs within the criminal law, passive euthanasia and the
doctrine of double effect, that allow the courts to re-define physicians’ actus reus (in
the case of passive euthanasia) or mens rea (in the case of double effect), and make it
possible for them to do acts that would otherwise be seen as murder without the threat
of legal sanctions.
While it is not disputed that the majority of physicians who perform passive
euthanasia or rely on the doctrine of double effect do so in good faith and therefore
deserve legal protection, it will be argued these constructs they rely are logically not
fit for purpose and that the courts allow, through their use, the very acts they purport
to condemn.
It is concluded that active euthanasia and intentional killing are, through ‘passive’
euthanasia and the doctrine of double effect, both practiced and unregulated, and it is
this lack of regulation that this work cites as the most important reason why the law at
present needs to be reformed. With the need for reform as its basis, the discussion
moves on to explore a number of possible avenues through which reform could be
effected, and settles upon the promulgation of legislation as the most prudent. In
response to this finding, a draft Bill was written and is evaluated in the last chapter of
this work.
2
Declarations
DECLARATION
This work has not previously been accepted in substance for any degree and is not
being concurrently submitted in candidature for any degree.
Signed........................................................................................... (candidate)
Date...............................................................................................
STATEMENT 1
This thesis is the result of my own investigations, except where otherwise stated.
Where *correction services have been used, the extent and nature of the correction is
clearly marked in a footnote(s).
Other sources are acknowledged by footnotes giving explicit references.
Signed........................................................................................... (candidate)
Date...............................................................................................
(*this refers to the extent to which the text has been corrected by others).
STATEMENT 2
I hereby give consent for my thesis, if accepted, to be available for photocopying and
for inter-library loan, and for the title and summary to be made available to outside
organisations.
Signed........................................................................................... (candidate)
Date...............................................................................................
STATEMENT 3
I hereby give consent for my thesis to be deposited in the University’s Institutional
Research Repository.
Signed........................................................................................... (candidate)
Date...............................................................................................
3
For choice, and JK
4
Acknowledgements
I would like to extend my gratitude to all those who had a hand in helping me put
together this thesis, in particular my supervisors, Dr Glenys Williams and Professor
John Williams. Without their patience, guidance, feedback and support I would have
long ago given up.
While writing my Ph.D I was privileged to work in the Department of Law and
Criminology, and I would like to extend my thanks to all of my colleagues for their
kindness and support. Special thanks must be given to Professor Alan Clarke, who
helped me to get the empirical part of my research approved by University’s ethics
board, and who pointed me on the path towards similar approval from the NHS ethics
committee. I would also like to thank Dr Kate Bullen, head of the Psychology
Department at Aberystwyth University, who gave me her time and support while I
worked through the process.
To the NHS ethics committee, and all those who I contacted while pursuing their
approval, I extend my thanks and appreciation for their assistance. I would also like to
thank the thirteen interviewees who kindly gave up their time to share their opinions
and experiences with me. Though they must anonymous for reasons of
confidentiality, without them this thesis could not have been written and I will always
be grateful to them for the part they have played in its creation.
I would also like to thank all those who I had the opportunity to meet at conferences
throughout my time as a Postgraduate, particularly Professors Margaret Brazier and
John Harris. Their very presence has proved to be an inspiration to me time and again,
and I credit many a midnight epiphany to passages they have written, or comments
they have made to me. That said, responsibility for any errors or omissions in this
thesis is mine alone.
Finally, I must thank my parents and my closest friends for putting up with me when
my work made me insular and antisocial. They can have their daughter and their
buddy back now.
5
Contents
Summary........................................................................................................................2
Declaration.....................................................................................................................3
Acknowledgements........................................................................................................5
Table of contents............................................................................................................6
Introduction....................................................................................................................9
CHAPTER ONE – The Moral Step Back
1. Introduction..............................................................................................................15
1.1 Euthanasia: the often defined, yet never defined concept......................................18
1.2 The Moral Step Back..............................................................................................21
1.3 Action and the meaning behind what it is to act....................................................24
1.3.1 Defining ‘Action’.................................................................................................29
1.3.2 Defining Volition.................................................................................................34
1.3.3 Defining ‘Omission’............................................................................................38
1.4 Perpetual Illogicalities............................................................................................41
1.4.1 The distinction based on acts and omissions: what it is and how it is wrong....42
1.5 Conclusion..............................................................................................................51
CHAPTER TWO – Intention, Double Effect and the Moral Step Back
2. Introduction..............................................................................................................53
2.1 Intention and Foresight...........................................................................................55
2.1.1 Intention, Foresight and what it is to Act
Intentionally.......................................57
2.2 Double effect..........................................................................................................60
2.3 Double Effect and the Moral Step Back.................................................................68
2.3.1 Pain relief, certain death and uncertain
consequences.......................................69
2.3.2 Intention, Foresight and the effect of Action.......................................................73
2.4 Conclusion..............................................................................................................83
CHAPTER THREE – The ‘Moral Step Back’ and judicial rulings
3. Introduction..............................................................................................................85
3.1 Capacity, competence, choice, consent..................................................................86
3.2 The competent patient in England and Wales........................................................91
3.2.1 Burning Burke’s Bridge?....................................................................................98
3.3 The competent patient in America.......................................................................100
3.4 The incompetent patient in English and American law.......................................103
3.4.1 Best interests and the English cases..................................................................103
3.4.2 American law, the substituted judgement test and incompetent patients..........110
3.4.2a Dealing with the once competent but now incompetent patient......................111
3.4.2b Dealing with the never-has-been-competent patient.......................................115
3.5 Exploring respect for autonomy...........................................................................117
3.5.1 Possible reasons for the respect........................................................................119
3.5.2 Respect and the MSB.........................................................................................123
3.6 Conclusion............................................................................................................126
6
CHAPTER FOUR – Choice: life’s sanctity and worth
4. Introduction............................................................................................................128
4.1 Choice and the need for competence....................................................................129
4.2 Various ways of valuing life................................................................................130
4.2.1 Life’s intrinsic value – religion and sanctity.....................................................137
4.2.1a Life’s intrinsic value – secular sanctity...........................................................141
4.2.2 Life’s Instrumental value...................................................................................143
4.2.3 Choosing Life’s value........................................................................................145
4.3 Claim One: How the MSB values life..................................................................146
4.4 Claim Two: Autonomy as a Primary good?.........................................................148
4.5 Conclusion............................................................................................................152
CHAPTER FIVE – Legal reasons for and against reforming the law
5. Introduction............................................................................................................154
5.1 Current defences are ineffective...........................................................................155
5.2 Formalise current practices..................................................................................158
5.2.1 Regulation.........................................................................................................158
5.2.2 Discrepancies between ‘legal’ practices and ‘accepted’ practices..................160
5.3 The legality of suicide and the concurrent illegality of assisted suicide..............162
5.3.1 Scope, the Coroners and Justice Act and Purdy v. DPP...................................162
5.3.2 The PAS/suicide dichotomy...............................................................................166
5.4 The backdrop to the Purdy case: Pretty and the right to die.................................171
5.4.1 From Pretty to Purdy........................................................................................173
5.4.2 The decision of the Divisional Court.................................................................174
5.4.3 The decision of the Court of Appeal..................................................................176
5.4.4 The decision of the House of Lords...................................................................178
5.5 The DPP’s Guidelines on Assisted Suicide..........................................................182
5.5.1 The ‘perfect’ offender........................................................................................184
5.5.2 The perfect ‘innocent’ assistor..........................................................................186
5.6 Legal arguments against reform: A possible presently legal solution?................190
5.7 Legal arguments against reform: The slippery slope...........................................192
5.7.1 Evidence of the slippery slope? – The Netherlands..........................................198
5.8 Conclusion............................................................................................................205
CHAPTER SIX – The moral arguments for and against reform
6. Introduction............................................................................................................207
6.1 Autonomy.............................................................................................................208
6.2 Dignity..................................................................................................................213
6.3 Mercy...................................................................................................................220
6.4 Public opinion......................................................................................................225
6.5 Moral arguments against reform..........................................................................229
6.5.1 Religious arguments against reform.................................................................230
6.5.1a Reform/euthanasia is contrary to the will of God...........................................231
6.5.1b The sanctity of life and the prohibition on intentional killing.........................233
6.5.1.c The value of suffering.....................................................................................234
6.6 Psychological assistance for the doctor involved.................................................236
6.7 Effect on the doctor/patient relationship..............................................................240
6.8 Conclusion............................................................................................................246
7
CHAPTER SEVEN – Options for reform
7. Introduction............................................................................................................248
7.1 A special defence for physicians who ‘commit’ euthanasia................................254
7.1.1 Mercy Killing.....................................................................................................256
7.1.2 Mercy Killing as a doctor’s defence?................................................................264
7.1.3 Necessity............................................................................................................268
7.2 Immunity from prosecution if certain criteria are met.........................................274
7.3 Conclusion............................................................................................................278
CHAPTER EIGHT – The Assistance In Dying Bill (2011)
8. Introduction............................................................................................................281
8.1 Tabulating concepts..............................................................................................281
8.1.1 Table 1: Doctor related issues..........................................................................281
8.1.2 Table 2: Patient related issues..........................................................................282
8.1.3 Table 3: Miscellaneous sections.......................................................................282
8.2 Evidence from interviews.....................................................................................283
8.2.1 Table 4: Participant opinions...........................................................................283
8.3 Deconstructing the Bill – preliminary considerations..........................................284
8.3.1 ‘Part A’ of the AID Bill (2011)..........................................................................285
8.3.2 ‘Part B’ – Defining the ‘qualifying patient’......................................................290
8.3.2(a) An ‘Intractable’ illness.................................................................................290
8.3.2(b) Suffering........................................................................................................294
8.3.2(c) The patient may be unable to take his own life.............................................298
8.3.2(d) The age of majority.......................................................................................300
8.3.2(e) Capacity and the voluntary character of the patient’s request.....................301
8.3.2(e)(i) Should psychiatric referral be mandatory?..............................................305
8.3.2(f) The Waiting Period........................................................................................307
8.3.3 ‘Part B’ – the roles and characteristics of the doctor under the AID Bill
(2011).........................................................................................................................309
8.3.3(a) The Quandary of Conscientious Objection..................................................312
8.3.3(a)(i) Must an objecting physician refer his patient’s case to a willing
colleague?..................................................................................................................314
8.3.3(b) The AID Bill and palliative care...................................................................316
8.3.4 ‘Part C’ –An introduction to monitoring practices under the AID
Bill..............................................................................................................................318
8.3.4(a) The AID Bill’s effect on the patient’s insurance...........................................319
8.3.4(b) ‘Part C’ and regulation under the AID Bill.................................................320
8.3.4(b)(i) Offences....................................................................................................322
8.4 Conclusion............................................................................................................325
Final Conclusion........................................................................................................326
Appendix 1: The Assistance In Dying Bill (2011)....................................................331
Bibliography..............................................................................................................343
Internet Sources.........................................................................................................360
Government Reports..................................................................................................362
Case list......................................................................................................................363
Statutes......................................................................................................................367
8
Introduction
It is a universally accepted truth that there are, in the law of England and Wales,
certain philosophical distinctions that define the boundaries between lawful and
unlawful behaviour. Nowhere is this more evident than in the law on homicide, where
culpability is measured against the concepts of action and intention. Action and
intention are not only used as adjectives to describe the act of doing murder, they are
the actus reus, or action part, and mens rea, or mental part, of the offence of murder at
law. Thus if one acts with the intention of killing another without a lawful defence,
one will be convicted of murder irrespective, or so it is often professed, of one’s
motive or reasons for acting.
That said, there are circumstances where the courts feel that, morally, the perpetrator
of what would otherwise be a crime deserves clemency. In these situations the same
constructs that define a crime can be used to show how the acts of the perpetrator do
not fit the actus reus or mens rea of the offence in question, and therefore exculpate
the otherwise guilty party. Take the law surrounding the concept of euthanasia for
example. Euthanasia is defined as murder in the same way any other kind of
intentional killing is when it is procured through the actions of a physician who
intends his patient’s death. However, when that same doctor omits to treat a patient,
and that patient dies, the doctor is not guilty of murder because he did not act. This
practice is known as passive euthanasia or euthanasia by omission and, while it is not
overtly legal, it is not penalised in the same way active euthanasia is.
Action is not the sole determinant of guilt however, and its presence does not damn an
actor who causes a death by active means. If it can be shown that that death was
foreseen but not intended, and that the person who caused it is a physician, the
doctrine of double effect (DDE) allows culpability to be legitimately dodged.
Passive euthanasia and the DDE have existed in English and Welsh law for over three
quarters of a century, and they have been debated and used with increasing frequency
in recent years as the euthanasia debate truly entered the public sphere. It is this
work’s aim to add to that debate by exploring the above-noted distinctions,
distinctions which delineate between lawful inaction and culpable action, and
9
unlawful intended death as opposed to lawful foreseen but unintended death, in order
to make the case that the law on euthanasia needs to be reformed. It seeks, in
exploring why this is the case, to answer the following question: ‘Why does the law
on euthanasia need to be reformed, and how should that reform be effected?’ Clearly
this question has two distinct facets to it, and these are echoed by the paired aims of
this thesis. The first aim is to put together a logical, legal explanation as to why the
law needs reforming, and the second is to respond to this need by producing a draft
Bill which suggests a possible avenue for effecting that reform.
The first aim is pursued in chapters 1 through 6. Chapters 1 and 2 will set out a
premise known as the Moral Step Back (MSB), which works by disputing the
viability of passive euthanasia and the DDE as mechanisms through which the courts
show leniency to doctors who act in ways which cause the death of their patients.
While this leniency is ethically well placed, the methods that allow it to be expressed
are, it is alleged here, not fit for purpose.
Despite this professed illogicality, chapter 3 will show how the courts at present rely
on these faulty doctrines, and will postulate possible reasons for this while
highlighting the inconsistencies their use perpetuates. Chapter 4 then moves the
discussion on to the effect this perpetuation has on the competing values of life and
autonomy, and chapters 5 and 6 tackle the legal and moral reasons for and against
reform respectively.
The second aim is the subject of chapters 7 and 8. Chapter 7 details the numerous
possibilities for the format of the proposed reform, and concludes that creating a piece
of legislation would be the most appropriate avenue to take. This conclusion is
reached after a thorough exploration of other possible methods of reforming the law1
1
The possible options for reforming the law considered in chapter 7 of this work are as follows:
legalising euthanasia or physician assisted suicide (PAS); creating a set of regulations on assisted dying
with strict requirements of consent; creating a special defence for those who have committed
euthanasia; providing immunity from prosecution if a physician involved in assisting death follows a
set procedure(s); substituting murder and manslaughter with unlawful homicide; forming a new
category of offence called ‘killing with compassion’; creating a Permanent Standing Advisory
Committee to draw up a code of practice containing guidelines to review developments and form
Working Parties; creating a notification system of an intended assisted death to an independent body
who would act on the patient’s behalf; the adoption of a ‘non-prosecution policy where there is no
evidence of a ‘victim’ and, removing euthanasia from the scope of the criminal law.
10
showed that the shortcomings of non-legislative methods, particularly the fact that
each of them would require additional guidelines in order to ensure that their scope
and effect could be properly defined and controlled, outweighed their positive
aspects.2
Chapter 8 builds on this finding and evaluates the Assistance In Dying Bill (2011)
with reference to the legislation on euthanasia in Australia,3 Belgium,4 the
Netherlands,5 Switzerland,6 Oregon,7 and England and Wales.8 The Bill is based both
on conclusions reached in chapter 7 and the MSB theory explored in chapters 1 and 2.
It aims to address the MSB's contention that the use of passive euthanasia and the
DDE allow, covertly and therefore without explicit regulation, the acts they purport to
condemn by providing guidelines which, if complied with, will protect the physician
who uses the Bill from prosecution.9
Simple adherence to the MSB's precepts however would not, given the fact that the
Bill would need to be presented to and passed by Parliament to make the reforms it
suggests part of English law, make having the Bill accepted by the legislature an easy
task. Certain of the MSB's conclusions - for example that the withdrawal of treatment
in certain circumstances is tantamount to performing active euthanasia - would be
both almost impossible to frame appropriately as clauses in the Bill, and would
furthermore do nothing to provide the regulation that this thesis concludes is
necessary. As such, while it was written to reflect the MSB's conclusions, it is
recognised that, were the Bill to mirror all of them to the letter, it would be almost
impossible to have it accepted by Parliament as a workable instrument of law reform.
The Bill's content is therefore balanced between faithful adherence to the MSB's
principles and pragmatic temperance.
2
See section 7 of chapter 7 of this work for the discussion regarding the most appropriate method of
reforming the law.
3
The Rights of the Terminally Ill Act (1995) (now repealed).
4
The Belgian Act on Euthanasia (2002).
5
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002).
6
The Swiss Criminal Code (1937) articles 114 and 115.
7
The Oregon Death with Dignity Act (1997)
8
The Assisted Dying for the Terminally Ill Bill (2004).
9
This method of regulation is referred to by this work as the 'compliance-innocence' model, and is
discussed in section 7.3 of chapter 7 of this work.
11
Given that the Bill is physician-centric, proceeding to draft it without consulting those
it primarily concerns would be imprudent. As such, the empirical element of this work
centres on interviewing physicians about their views on the efficacy of reforming the
law.
This methodology was chosen because of the advantages it has compared to other
types of qualitative methodologies. In a private setting it is much easier to stimulate
debate and discuss the particulars of the hypothetical statute without the participant
feeling pressured by the presence of others into taking a more conservative view than
they may usually have. The interviewees were assured that, even if they are
completely against reform being effected to this area of law, their contributions were
equally as valid and as helpful as those of a person who feels that change would be
desirable. While it may be the case that informing the participants of this could have
hinted towards this work's positive stance or reform and therefore potentially put off
people with strongly opposing views, it was felt that the risk of this occurring was
sufficiently low to warrant its inclusion. Furthermore it was feared that, if the
assurance was omitted, prospective participants who did not favour reform may not
have felt it appropriate to get involved in a study which concerns exploring the
possibility of reforming the law on euthanasia. The topic itself predisposes one to
assume that the person or organisation conducting the study is looking into the
possibility of proposing legal change. Without the assurance, participants who did not
think reform was necessary could have assumed that only the opinions of people who
felt reform was needed were welcome.
The process of organising the interviews began with identifying the prospective
participants. An internet directory of consultants in England and Wales was utilised to
search for and select the participants. Because they needed to work in specialities that
would entail them encountering end-of-life issues, oncologists, geriatricians and
palliative care specialists were selected. These selections, but for the caveat on
speciality, were random. It was decided that a minimum of 50 physicians from three
randomly selected hospitals in England and Wales would be contacted to combat the
problem of non-response. Based on the fact that it would be incredibly difficult to
conduct enough interviews to obtain statistically significant results, it was concluded
that the findings would not be extrapolated to the general population.
12
In order to carry out the interviews this methodology had to be submitted to
Aberystwyth University’s Ethics Committee, the NHS Multi Centre Research Ethics
Committee (MREC) in Cardiff and the Research and Development departments of
each of the hospitals chosen for the study. Once the methodology was accepted by
each of these bodies, a process that took well over a year to fully complete, each
participant was provided with the full details of the study and an informed consent
agreement which they were prompted to sign and return if they wished to take part.
This agreement, coupled with the information pack, provided the participants with all
of the information they needed to properly consent to taking part in the study, and also
assured them that their rights to anonymity and confidentiality were of paramount
importance, and would be respected at all times during and after the study. To this
end, only participants who were happy to be named in the text of this work are named.
Those who were not were assigned a moniker, which is used in the event that their
opinions are referred to.
The interviews took place between October 2008 and February 2010. The timeframe
over which they were conducted was so wide because, in dealing with the expectedly
high rate of non-response, the number of participants grew and encompassed hospitals
outside of the original purview. Because of this, R&D approval was required from
each new site before the physicians targeted by the study could be approached, which
took a considerable amount of time to obtain.
The interviews were semi-structured, lasted for an average of 40 minutes and were
recorded on a Dictaphone for later transcription. To minimise the effects of researcher
bias, interviewer participation in the interviews was restricted to asking questions and
following up interesting leads only. Five main topics were explored in each interview:
1. The act/omission distinction.
2. The distinction between intention and foresight in the context of the
doctrine of double effect.
3. Whether the physician was for or against assisted dying as a concept.
4. His/her reasons for feeling as s/he did about assisted dying and,
5. Whether s/he believed reforming the law on euthanasia in some way
is an appropriate course of action.
13
These topics were chosen because of their relevance to the aims of this work. The first
two are directly relevant to the doctrinal underpinnings of the MSB, and the latter
three explore the physicians’ thoughts and feelings on reforming the law. On the basis
of these interviews it can be concluded that while all of the participants recognised the
distinctions highlighted in points 1 and 2, and therefore disputed the MSB’s claim that
those distinctions are illogical, a number of them also argued, for various reasons, that
the law needs to be reformed. While these findings, as noted above, will not be
extrapolated to the wider population, the fact that 7 of the 13 practitioners interviewed
were supportive of some kind of reform lends credence to the conclusion that reform
is indeed a necessary step to take.
14
Chapter 1
The Moral Step Back
1. Introduction
The euthanasia debate and the discord that has come to be its hallmark are by no
means new. The first glimmers of it can be traced back before Thomas More’s Utopia
was written to the discourses of Plato, Seneca, Cicero and Socrates. Later came the
Summa Theologiae of Thomas Aquinas and later still, moving into the modern
discourse, the writings of Kant, Gormally, Kuhse, Finnis, Fisher, Otlowski, Keown
and innumerate others.
The ethical dimensions of euthanasia, assisted suicide (AS), physician assisted suicide
(PAS) and end of life decision-making in general have been mapped and mapped
again in recent years.10 As such, any attempt made in this chapter to reconcile the
incongruous discourse and differing opinions would only serve to reaffirm the fact
that that friction exists. For all the dissent however there are a number of interrelated
issues upon which key features of the debate rest. The first of these is definitional by
nature and concerns the distinctions made between euthanasia, AS and PAS at law.
The former of the three is discussed at length in section 1.1 (below), and of the latter
pair only AS is defined statutorily – specifically in section 2(1) of the Suicide Act
(1961) as amended by section 59 of the Coroners and Justice Act (2009). PAS is
treated in much the same way as AS is, the only differences being the identity of the
person assisting, the possibility of professional sanctions being imposed in tandem
with those prescribed by section 2(1) and the fact that the assistor being a physician is
a factor in favour of prosecution under the Director of Public Prosecution's Policy for
Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010).11
10
See for example, Downing A B (ed), Euthanasia and the Right to Death: The Case for Voluntary
Euthanasia (London: Peter Owen 1969); Steinbock B and Newcross A (eds), Killing and Letting Die
(2nd edn New York: Fordham University Press 1994); Keown J (ed), Euthanasia Examined: Ethical,
Clinical and Legal Perspectives (Cambridge: Cambridge University Press 1997).
11
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010) points 43(12)
and 43(13) of the ‘Public interest factors tending in favour of prosecution’ section . Policy for
Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010).
15
Another of the precepts underpinning the debate concerns distinctions, specifically
those between acts and omissions in the context of active and passive euthanasia and
intention and foresight in relation to the doctrine of double effect (DDE). Both of
these theories have been exhaustively canvassed and opinions run the gamut between
scholars like Keown12 who supports both, and those like Harris13 who maintains
stalwart reservations about the efficacy of either.
This thesis aims to tackle each of these topics in turn. It begins by discussing the
numerous definitions of ‘euthanasia’, as opposed to AS or PAS which have
comparatively settled definitions.14 From this discussion it goes on to piece together
the ‘moral step back’ (MSB) theory – one which aims to prove that neither the
distinction between acts and omissions (in cases concerning active and passive
euthanasia), nor that between intention and foresight (in the context of double effect)
are viable.
The theory’s starting point is recognition of the moral blamelessness of the physicians
involved in cases where euthanasia (the active or passive form) or double effect
occurs.15 It concedes from its genesis therefore that in retaining these ‘non-viable’
distinctions the law as it stands reflects a welcome and prevailing moral standpoint. It
also acknowledges the likelihood that the distinctions remain to allow physicians to
distance themselves from the consequences of their ‘actions’ or ‘omissions’, and
again maintains that this exercise, whilst based on flawed logic and in a sense an act
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed on January
10th 2012 at 13.44pm).
12
Keown J (1997)., op. cit.
13
Harris J, The Value of Life (London: Routledge & Kegan Paul 1985).
14
Assisted suicide is defined in section 2 of the Suicide Act (1961), as amended by section 59 of the
Coroners and Justice Act (2009): ‘In section 2 (criminal liability for complicity in another’s suicide),
for subsection (1) substitute: “(1) A person (“D”) commits an offence if: (a) D does an act capable of
encouraging or assisting the suicide or attempted suicide of another person, and (b) D’s act was
intended to encourage or assist suicide or an attempt at suicide.’ Physician assisted suicide is defined
by many academic works, Herring’s being one of the clearest of the very similar examples: ‘Physician
assisted suicide involves the giving of assistance by a physician to enable her or his patient to commit
suicide. Typically this might involve the provision of drugs to be taken by the patient in such quantities
as to enable suicide.’ Herring J, Medical Law and Ethics (Oxford: Oxford University Press 2006) at pg.
474.
15
This blamelessness remains unless the doctor in question has malicious motives in ending his
patient’s life and relies on the contested doctrines to cover his malfeasance.
16
of providing ‘Soma’16 for the conscience or ‘self delusion’,17 is not a morally
reprehensible thing.18 It appears to allow physicians to do what they feel to be correct
in very difficult circumstances ‘...without feeling pangs of conscience...’19 It would be
reprehensible therefore if a theory cast blame upon such an action, and the MSB does
not do so.
The theory alleges, and earns its name from the allegation that, by maintaining the
abovementioned distinctions, the law allows practitioners to ‘step back’ from the
death of a patient and distance themselves morally from it, regardless of the fact that
their actions are allegedly equivalent to the prohibited practices of active euthanasia
and causing death with the intention to cause it. Furthermore, it is alleged that the
courts, by allowing a competent patient to request the withdrawal of treatment, but not
‘active’ assistance in ending his life, perpetuate jurisprudential arbitrariness in cases
concerning the end of life. This arbitrariness impliedly evidences a disinclination to
recognise a person’s autonomy where he requests active assistance in dying, one
which is inexplicable if the MSB is taken to be accurate because of the lacking
distinction between active and passive ‘acts’.
This chapter will be focused solely on exploring the acts/omissions facet of the MSB,
while chapter 2 tackles the intention/foresight distinction and double effect.
Discussion in this chapter will be split into three parts: the first dealing with the
definition of euthanasia, as noted above; the second, after a brief look at the MSB,
endeavouring to define the concepts key to the acts/omissions theory; and the third
focused on exploring the theoretical underpinnings of the MSB and on how it is
evidenced jurisprudentially.
The MSB’s protestations at the illogicalities upon which the law on passive
euthanasia and double effect – and by extension the physician’s exercise of distancing
‘Soma’ is a fictional drug which, in Huxley’s Brave New World, allows people to live in a state of
blissful if false happiness. To Huxley, truth and happiness are incompatible and this, in a loose sense, is
what the MSB implies here. The truth of what the physicians are doing is unpalatable to them, and they
distance themselves from it as a result. Huxley A, Brave New World (London: HarperCollins
Publishers 1994).
17
Harris J, (1985) op. cit., at pgs. 37-38.
18
See chapter 6 section 6.6 of this work for a discussion of psychological assistance this distancing
may have for physicians involved in end-of-life care.
19
An interview with Baroness Warnock by Edwards. J conducted on 19 th November 2007.
16
17
– remain. The MSB seeks to argue that when the distinctions at the heart of both
forms of ‘defence’20 are diminished, the courts have no recourse but to impose a
murder conviction on the morally blameless physician. This argument is presented in
order to make the case for legislative reform being the most appropriate mechanism
for providing the needed protection. To do so the MSB claims the following:
1) In relation to the act/omission distinction it aims to prove that both
acting to cause death and omitting to treat which results in death are
equivalent both morally and practically in their ends and means. As
such it reasons that either both should be legal or both should be
illegal.
2) A similar vein is followed in discussing intention and foresight in
relation to the doctrine of double effect. The argument here is that
while the distinction between them at law is correct, it cannot be
maintained in a situation where a person acts to achieve the foreseen
but unwanted end.
These issues will be discussed at length in chapter 2. Presently this chapter turns to
the definition of euthanasia for, as Wreen once wrote: ‘It cannot hurt, I figure, and
frequently can help, to know precisely what you are talking about.’21
1.1 Euthanasia: the often defined, yet never defined concept
‘Devised for service in a rhetoric of persuasion, the term euthanasia,
and its synonyms, has no accepted and philosophically warranted
core of meaning.’22
Etymologically speaking ‘euthanasia’, from the Greek ‘eu’ meaning ‘good’ and
‘thanatos’ referring to death and, in Freudian terms the ‘death instinct’,23 means the
want for a good or easeful death.24 Using this as a starting point it can presumed that
20
Williams G, Intention & Causation in Medical Non-Killing: The Impact of Criminal Law Concepts
on Euthanasia & Assisted Suicide (New York: Routledge-Cavendish 2006) at pgs. 187-8.
21
Wreen M, (1988) ‘The Definition of Euthanasia’ 48 (4) Philosophy and Phenomenological Research
637 at pg. 637.
22
Finnis J, ‘A Philosophical case against euthanasia’ in Keown J (ed), Euthanasia Examined: Ethical,
Clinical and Legal Perspectives (Cambridge: Cambridge University Press 1997) at pg. 23.
23
Dufresne T, Tales from the Freudian Crypt: The Death Drive in Text and Context (Stanford:
Stanford University Press 2000).
24
Stauch M, Tingle J and Wheat K, Text, Cases & Materials on Medical Law (3rd edn RoutledgeCavendish 2006) at pg. 627; Herring J, Medical Law and Ethics (Oxford: Oxford University Press
2006) at pg. 437; Montgomery J, Health Care Law (2nd edn New York: Oxford University Press 2003)
at pg. 461.
18
euthanasia – since its central precept is the achievement of a ‘good’ death – concerns
itself with the avoidance of a ‘bad’ one. This then raises questions concerning how, if
euthanasia is by definition the want for a ‘good’ death, the practice itself can be seen
as ‘bad’.
Davies25 draws attention to the Nazi ‘euthanasia’ regimes of the 1930’s, where
‘undesirables’ were killed in the quest for Aryan purity. Clearly, in this context, the
phrase confers an evil purpose, though an extended discussion on this issue would be
out of place in this section. The focus here is on the meaning of the word, not its
connotations.
Current thought gives a certain impression of what ‘euthanasia’ entails. Wreen
provides a working definition, split up into six stages. Under these ‘Person A’
commits euthanasia only if:
1. A kills B or lets him die.
2. A intended to kill B.
3. The intention specified in (2) was at least a partial cause of the action specified
in (1).
4. The causal journey from the intention specified in (2) to the action specified in
(1) is more or less in accordance with A’s plan of action.
5. A’s killing of B was a voluntary action.
6. The motive for the action specified in (1), and the motive standing behind the
intention specified in (2), is the good of the person killed.26
Huxtable builds on these ideas, stating that ‘euthanasia’ involves: ‘…the intentional
ending of the life (whether the recipient wants this or not) of someone, which is
motivated by the belief that this will be in some way beneficial for them…’27 He goes
on to state that: ‘The motive rests on the idea of mercy…the agent practising
euthanasia aims to (and does) put an end to the poor quality of life that the patient is
Davies J, ‘The case for legalising voluntary euthanasia’ in Keown J (ed), Euthanasia Examined:
Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University Press 1997) at pgs. 83-95.
Also see, Dworkin R, Life’s Dominion: An argument about abortion, euthanasia and individual
freedom (New York: Alfred. A. Knopf. 1993) at pg. 197.
26
Wreen M, (1988) op. cit., at pg. 638.
27
Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: RoutledgeCavendish 2007) at pg. 8.
25
19
enduring or is likely to endure…’28 as a result of ‘…a medical condition of some kind,
usually a severe one that is of a terminal or chronic nature.’29
Though not without the need for clarification, Wreen and Huxtable manage to
encompass the main body of what ‘euthanasia’ is taken to entail within their
definitions. There must be an action that causes death (looking past the vexing
act/omission distinction for a moment); the intention of ‘A’ must have been to cause
‘B’s ‘good’ death and causation is required to link ‘A’s action to ‘B’s death. ‘A’s
motive must be pure and her actions must have been voluntary. ‘B’ will generally be
terminally ill and, if he is not suffering as a result of it already, foresees that he will
suffer as a result of that illness to an extent he does not wish to.
However it is more complicated than this because many writers30 recognise specific
categories or types of euthanasia within the broad framework set out by Wreen and
Huxtable. Those that are universally accepted within the literature31 are defined by
Herring, who brings the issues of competency and consent to light:
‘Voluntary euthanasia: behaviour which caused the patient’s death
at the patient’s request. Non-voluntary euthanasia: behaviour
which causes euthanasia without the consent or objection of the
patient (i.e. where the patient is unable to consent or object).
Involuntary euthanasia: Where the competent patient has not
expressly consented to die, but nevertheless they are killed.’32
To add to the semantic jumble, there is the distinction between ‘active’ euthanasia and
‘passive’ euthanasia. It will later be argued that this distinction is a misnomer when
based on the act/omission distinction, but for now it is prudent to recognise it for
clarity’s sake. Campbell, Gillett and Jones explain the concepts: ‘Active euthanasia
occurs when the doctor kills the patient…There is also passive euthanasia or letting
die, which involves bringing about the death of another by inaction.’33 The core
28
ibid at pg. 9.
ibid at pg. 9.
30
Herring J, (2006) op. cit., at pg. 437; Campbell A, Gillett G and Jones G, Medical Ethics (4th edn
Oxford: Oxford University Press 2005) at pg. 213; Otlowski M, Voluntary Euthanasia and the
Common Law (Oxford: Clarendon Press 1997) at pg. 4.
31
The categories of ‘direct’ and ‘indirect’ euthanasia are mentioned by Otlowski, (1997) ibid., at pg. 8.
32
Herring J, (2006) op. cit., at pg. 437.
33
Campbell A, Gillett G and Jones G, (2005) op. cit., at pg. 213.
29
20
notions entailed in discussing ‘euthanasia’ are thus identified. Needless to say, its
connotations and the debates it incites ‘reflect particular moral viewpoint(s)’34 and
therefore make a universally agreed definition lamentably difficult to pin down.
However, there is a general consensus within the academic community on the
concepts Herring and Campbell et al describe.
These agreed-upon ideas are displayed in Wreen’s first and second criteria, which
expose the doctrinal underpinnings of the law of euthanasia. Distinctions at law are
made between killing and letting die, the former illegal, the latter permissible
(Wreen’s 1st criterion), and intended and foreseen consequences; again, the former
when the DDE is utilised illegal, the latter permissible (Wreen’s 2nd criterion). While
it is conceded here that both distinctions are morally important and weighty, the MSB
alleges that they are based on fictions employed by the courts to circumvent the
absolute prohibition on intentional killing. Without the concepts of ‘letting die’ and
‘foreseen but not intended consequences’ or double effect, there would be no recourse
for the courts, when faced with a case like R v. Adams35 or R v. Cox,36 but to convict
the practitioner involved with murder. The coming sections detail the theoretical basis
for this contention and begin by outlining and discussing the MSB.
1.2 The Moral Step Back
As section 1 points out, the MSB claims to show that the traditional distinctions
between acts and omissions in the context of euthanasia, and between intention and
foresight in the DDE are based on flawed logic. This argument is made with a view to
alleging that reference to them in cases where a doctor has ‘allowed’ death or
‘foreseen’ but not intended it, puts the courts in a position where they must rely on
illogical distinctions to save an otherwise blameless doctor from the murder
conviction his conduct incites.
34
Otlowski M, (1997) op. cit., at pg. 4.
R v. Adams [1957] Crim. L.R. 365.
36
R v. Cox (1992) 12 BMLR 38.
35
21
Furthermore it claims that active and passive euthanasia are equivalent in both their
ends and means,37 and that, as a result of this parity, both forms should be dealt with
in the same way by the courts. Clarity dictates that both practices be considered either
lawful or unlawful because they are the same thing – an action which causes the death
of a patient. The doctrinal underpinnings of this contention come from the work of
Rachels and Harris.
Rachels’ Equivalence thesis will be discussed in detail in section 1.4.1, however,
briefly, it claims that a Kantian view of active and passive euthanasia uncovers a
similarity between them which is overlooked at law in favour of maintaining the
distinction between the practices. Both active and passive euthanasia, says Rachels,
achieve the same ends. In both cases the patient dies and in both cases his or her
family grieves. As such both outcomes are morally equivalent because, for all intents
and purposes, they are the same. The MSB builds on Rachels’ thesis but maintains its
Kantian flavour. It claims that not only are the ‘ends’ of active and passive euthanasia
equivalent, but the means used to meet those ends are also equivalent both morally
and in how they are effected. Consequently, and with reference to Rachels, it should
be the case that both forms of death causing, ‘active’ or ‘passive’, are treated equally.
Harris’ philosophy on acts and omissions and what he calls ‘the argument from selfdeception’ have also influenced the theory behind the MSB. Quoting from his book
The Value of Life provides an instructive introduction as to the content of this point of
view:
‘Indeed self deception is sometimes advanced as itself constituting
the moral difference between active and passive euthanasia. The
argument here is that it is only because the medical staff...are able to
protect themselves from full awareness of what they are doing that
they are able to bring themselves to do what they judge to be morally
required in the circumstances. Here the idea that they are only
‘letting nature take its course’ allows them to distance themselves
from the death of the child and fit their part in events more
comfortably into their conception of the medical role.’ 38 (emphasis
added)
The phrase ‘means’ is understood in the Kantian sense here – the method or methods by which one
achieves one’s ends or desired outcome.
38
Harris J, (1985) op. cit., at pg. 38.
37
22
The key aspect of Harris’ thesis on self-deception is his mention of ‘distancing’. The
act/omission distinction and that between intention and foresight, claims the MSB,
allow physicians to distance themselves from the death, saving them from both legal
and moral censure and providing Soma for their consciences.39 Harris’ thesis also
forms the basis of the second of the MSB’s claims: that the distinction between
intention and foresight as maintained by the DDE is as flawed as that between acts
and omissions and is still kept for the same reason.40 It affords the doctor a chance to
‘step back’ from the consequences of his actions instead of saddling him with the
blame for causing the death.
Miller, Troug and Brock in their paper 'Moral Fictions and Medical Ethics'41 explore a
concept similar to the MSB. The authors are concerned with what they term 'moral
fictions' and the impact these fictions have on medical practice. The define them as
follows:
'Moral fictions are false statements endorsed to uphold cherished
or entrenched moral positions in the face of conduct that is in
tension with these established moral positions.'42
On the face of it this concept of moral fictions is startlingly similar to the MSB.
Indeed the MSB derides the distinctions between acts and omissions and intention and
foresight in DDE cases as fictitious, and explains their presence and maintenance with
reference to their ability of facilitate a MORAL step back from the deleterious
consequences of certain actions. However, there are stark differences between the
theses if these face value similarities are looked past. The MSB for example is
predicated on exploring and dismissing the distinctions it questions; distinctions
which make certain of Miller et al's moral fictions possible. By contrast, Miller et al
focus on identifying these overarching moral fictions and explaining why they exist.
They rightly proclaim that:
'...moral fictions relating to end-of-life decisions...make morally
challenging medical practices, such as withdrawing life-sustaining
treatment and providing pain-relieving medication at the risk of
39
Huxley A, (1994) op. cit.
The impact of Harris’ work on the MSB’s reasoning as regards double effect will be discussed in
chapter 2, section 2.3.2.
41
Miller F G, Troug R D, Brock D W (2010) ‘Moral Fictions and Medical Ethics’ 24(9) Bioethics 453
42
ibid., at pg. 454.
40
23
hastening death, consistent with the norm that doctors must not
kill, or assist in killing, patients.'43
A further and more pertinent distinction between the two theses is evidenced in this
quotation. Miller et al are concerned with avoiding a disconnect between medical
norms and the law that regulates the proper practice of medicine. They concede,
despite stating, 'in theory, the moral work done by...moral fictions in the ethics of endof-life decisions is expendable'44 that, 'with respect to the law, it is relatively easy to
see [that] these moral fictions...need to be endorsed in order to make medical practice
consistent with the law.' The MSB on the other hand is predicated on the effect that
the distinctions it contests have on the conscience of the physicians that use them, and
on arguing that the law maintains the distinctions to facilitate the 'moral step back'
they allow the physicians to take.
To begin exploring these distinctions this chapter now turns to two of the foundational
principles upon which the MSB is based: the concepts of ‘action’ and ‘omission’.
‘Acts’ or ‘actions’ are an essential part of the criminal law in England and Wales.
Without an actus reus or guilty act there is no crime to speak of.45 Indeed it is on this
basis, as section 1.2 has shown, that the boundaries between illegal ‘active’ and
permissible ‘passive euthanasia’ are delineated. In order for the MSB to accurately
minimise this distinction, it is necessary here to make the bases upon which it is made
– action as opposed to inaction or omission – as clear as possible.
1.3 Action and the meaning behind what it is to act
Many general theories of action exist which provide differing explanations for and
definitions of the concept, each with differing criteria upon which these
understandings are based. Humean philosophy focuses on the interplay between
desires and beliefs;46 Kantian theories propound procedures for checking that a plan
43
ibid., at pg. 454.
ibid., at pg. 460.
45
Unless one is under a duty to act and omits to carry out some part of that duty, the result of which is
the death of the person to whom the duty is owed.
46
Hume D, A treatise of Human Nature (Sioux Falls: NuVision Publications 2007); Davidson D,
(1963) ‘Actions, Reasons, and Causes’60 (23) The Journal of Philosophy 685.
44
24
of action is supported by sufficient and consistent reasons,47 and Aristotelian
discourses seek to explore the ultra refined sensibilities of the practically intelligent
reasoner.48 Despite these conceptual differences, they share common ground in the
belief that practical reasoning describes reasoning directed towards the doing of
intentional action.49 Without it, action ceases to be action at all, instead becoming
‘mere movement’.50 In recognition of this dichotomy, this section will explore
practical reasoning with a view to finding an answer to one of the main questions
tackled by the abovementioned philosophical stances: What does it take to be an
action at all?
In contemporary moral philosophy there are four main views taken on the topic of
practical reasoning: the calculative view of Vogler51 and Thompson;52 the practice
view53 of Rawls54 and Schapiro;55 the authorship view argued over by Korsgaard56
and Velleman57and the evaluatory view explored by Buss.58 The calculative and
Kleingeld P, (1998) ‘Kant on the Unity of Theoretical and Practical Reason,’ 52 (2) Review of
Metaphysics 311; Korsgaard C, Creating the Kingdom of Ends, (Cambridge: Cambridge University
Press 1996).
48
Moravcsik J M, ‘What Makes Reality Intelligible? Reflections on Aristotle's Theory of Aitia’ in
Judson L (ed) Aristotle's Physics: A Collection of Essays (Oxford: Oxford University Press 1991); Foot
P, Natural Goodness (Oxford: Clarendon Press 2001).
49
Anscombe G E M, ‘The causation of action’ in Ginet G and Shoemaker S (eds), Knowledge and
Mind: Philosophical Essays (Oxford: Oxford University Press 1983). The phrase ‘reasoning behind
action’ does not refer to the reasons why a person acts in a certain way. Anscombe’s ‘why’ questions
are geared towards finding the reason why a person is doing what he is. For example: ‘Why are you
boarding that plane?; I want to escape someone who is chasing me.’ The reason for boarding the plane
– escape – is not what practical reasoning is concerned with. Instead practical reasoning is concerned
with the processes behind coming to the decision to escape pursuit by boarding the plane.
50
http://plato.stanford.edu/entries/practical-reason-action/ (accessed on January 5th 2010 at 1.15pm).
51
Vogler C, Reasonably Vicious (Cambridge: Harvard University Press 2002); Vogler C, ‘Anscombe
on Practical Inference’, in E Millgram (ed), Varieties of Practical Reasoning (Cambridge: MIT Press
2001).
52
Thompson M, Life and Action (Cambridge: Harvard University Press 2008).
53
The ‘practice’ view of action adds to the conjecture surrounding the nature of action and practical
reasoning. It was arguably created by Rawls who introduced the concept of a practice in his paper ‘Two
Concepts of Rules’. A Practice, argues Rawls, introduces statuses which are internal to it. In baseball
for example the idea of a ‘foul’ or a ‘strike’ would be a status. No matter how much one’s actions may
mimic what in baseball would be a ‘foul’, if one is not playing baseball one’s actions will not be a
‘foul’. Baseball is therefore a practice – it has reasons and standards internal to it that make a ‘foul’ a
‘foul’, or a ‘strike’ a ‘strike’ where outside of the game the same actions are not seen to be those things.
54
Rawls J, (1955) ‘Two Concepts of Rules’, 64 Philosophical Review 3.
55
Schapiro T, (2001) ‘Three Conceptions of Action in Moral Theory’ 35 Noûs 93.
56
Korsgaard C, The Standpoint of Practical Reason (New York: Garland Press 1990); Korsgaard C,
‘Skepticism about Practical Reason’, in her book Creating the Kingdom of Ends, (Cambridge:
Cambridge University Press 1996).
57
Velleman J D, Practical Reflection, (Princeton: Princeton University Press 1989); Velleman J D, The
Possibility of Practical Reason, (Oxford: Oxford University Press 2000).
58
Buss S, (1999) ‘What Practical Reasoning Must Be If We Act for Our Own Reasons’ 77
Australasian Journal of Philosophy 399.
47
25
practice theses are based on non-psychologistic reasoning – reasoning which does not
take the psychology of the actors in question into account – where the authorship and
evaluatory views are, like the MSB, based upon it almost exclusively. Because of this
division, the non-psychologistic theories will not be examined in great depth in the
coming paragraphs, though references will be made where necessary.
Authorship theory, like the MSB, posits that action’s distinguishing feature is its
capacity for being ‘authored’ – that it originates from a person. The two most
developed theses in this area are those of Korsgaard and Velleman. To Korsgaard,
what gives an action an author is that it is attributable to the person as a whole (not
just to one of his drives or strong desires). In order to be so attributed a constitution is
required. Constitutions are a form of psychic organisation and regulation, and they
specify the procedures by which actions are to be produced. Actions are therefore
owned, and so are full-fledged actions only when they are produced under a
constitution.59 This connection between agent and action must be tangible enough
‘...that we can hold agents responsible for what they do.’60
The need for a moral connection between actor and action, and for this connection to
be related to the actor’s autonomous choices, is also recognised by the MSB. One
should not be held morally or legally responsible for a reprehensible action if it was
not one’s choice to perform it. Indeed the defence of duress reflects this principle and
impliedly recognises Korsgaard’s assertions regarding the universality61 of practical
reasons.
Under the authorship thesis, the alternative to a universal form of practical reasoning
is particularistic reasoning. This however does not allow for freedom of choice, and
identification with a principle of choice is necessary if there is to be substance to the
distinction between actions (which are authored) and mere activity. In making this
distinction and dismissing ‘particularistic’ reasoning, Korsgaard distinguishes
between intentional action (that which she takes to be authored) and unintentional or
‘bare’ movement. This gives her theory a Kantian flavour, as a part of Kant’s
Korsgaard C, (1999) ‘Self-Constitution in the Ethics of Plato and Kant’ 3 Journal of Ethics 1.
http://plato.stanford.edu/entries/practical-reason-action/#2 (accessed on 19th November 2009 at
11.38am).
61
For an overview see: Hooker B and Little M (eds), Moral Particularism, (Oxford: Clarendon Press
2000).
59
60
26
philosophy expressly imposes a universalisability requirement on practical reasons.62
The MSB also equates autonomy through the principle of choice with the ability to
perform intentional actions and, as Korsgaard does, distinguishes action from mere
activity or movement in this manner.
Like the MSB and Korsgaard, Velleman takes action, as contrasted with mere
activity, to be owned.63 He posits that ownership requires a definite structure within
an agent, and understands the forms of practical reasoning to be determined by that
structure. The sense of ownership in Velleman’s thesis has to do with whether the
agent can honestly dissociate himself from his action or motivation,64 and was
inherited from Frankfurt,65 Watson66 and Benson.67 Frankfurt hypothesizes that a
desire is fully-fledged ‘yours’ when you have a suitable second-order desire,68 and
Watson feels that this proposal merely pushes the question back to whether the
second-order desire was fully-fledged yours. Benson in turn rejoined Watson,
querying what makes a set of values one’s own.69
The problem faced by Frankfurt and Watson seems to take the shape of an infinite
regress,70 and Velleman counters this by locating a psychological element the agent
cannot dissociate himself from (thus halting the regress). Because to act is to act with
reasons, an agent cannot dissociate himself from a desire to act for reasons without
ceasing to be an agent altogether. When such a desire to produce an action – by
weighing with others of its kind in favour of producing the action – causes the action
62
http://plato.stanford.edu/entries/kant-moral/ (accessed on 19th November 2009 at 2.40pm). Though
Korsgaard and Vogler agree, in line with Kantian maxims – the structured intentions on which the
universalisability requirement is imposed — that one comes up with actions that are calculatively wellformed, they differ on a number of important issues. Firstly, because Vogler regards non-calculative
practical reasons as optional where Korsgaard argues the contrary, they disagree over whether the
universalisability of maxims is mandatory.
63
Velleman J D, (1989) op. cit.; Velleman J D, (2000) op. cit.
64
For example when someone says: “It wasn't really me speaking; it was just the alcohol.”
65
Frankfurt H, (1971) ‘Freedom of the Will and the Concept of the Person’ 68 Journal of Philosophy
5.
66
Watson G, (1975) ‘Free Agency’ 72 Journal of Philosophy 205.
67
Benson P, (1987) ‘Freedom and Value’ 84 Journal of Philosophy 465.
68
Second-order desires are best understood through a comparison with first-order desires. A first order
desire is a desire for or about anything – buying an ice-cream for example, meeting the Pope or seeing
a specific football match. Second-order desires on the other hand are desires based on other desires; the
desire to want to buy ice-cream, meet the Pope or see a football match. See: Frankfurt H, (1971) op. cit.
69
Benson P, (1987) op. cit.
70
An infinite regression is defined as: ‘a causal relationship transmitted through an indefinite number
of terms in a series, with no term that begins the causal chain (going back through a chain forever).’
http://www.philosophybasics.com/general_glossary.html (accessed on 10 th October 2010 at 10.53am).
Also see: http://plato.stanford.edu/entries/freewill/ (accessed on 14th November 2009 at 13.56pm).
27
to come about, Velleman concludes that the agent produces the action. Three
assumptions can therefore be deduced from Velleman’s theory:
1. Actions are owned,
2. An action is owned when it cannot be disowned and,
3. The only anchor for an action that an agent cannot disown in turn,
without ceasing to be an agent, is the desire to act for reasons.
An action is what is produced by the operation of this desire, and so this desire
amounts to the constitutive aim of action. It will therefore serve to determine which
reasons for action are practical ones. A similar approach is taken by evaluatory
theorists like Buss.
Like Velleman’s and Korsgaard’s, Buss’s work distinguishes between mere
movements of the body and fully-fledged intentional action by requiring, for the
latter, that agents endorse their actions at the time they are initiated. This endorsement
or acknowledgement of one’s reason for acting must be such that it gives sufficient
reason for performing the action. Anything less than this, argues Buss, amounts to
acting as a spectator towards one’s own acts – to waiting to see if an identified desire
will be actuated without acting to pursue it at all.
There is a tangible overlap between Buss’s thesis and Velleman’s. Both are concerned
that an agent acts for reasons, a requirement that manifests as a desire in Velleman’s
work and as an evaluation in Buss’s. This concern however is differently motivated.
Velleman is working to stop a regress in the structural analysis of agency where Buss
is trying to express the philosophical thought that action is active rather than passive.
Thus far it is clear that, irrespective of their differences in approach, Korsgaard,
Velleman, Frankfurt and Buss all identify practical reasoning with some ‘thing’ within
the reasoner. For Korsgaard this element is ‘intention’; for Velleman it is the desire to
act for reasons; Frankfurt takes it to be a second-order desire and to Buss it is a
process of evaluation. The MSB, in turn, takes action’s defining quality to be that it
originates from the mind of the actor. It is therefore seen to be caused by some kind of
psychological state or process which is precipitated (or is actuated in the world the
actor exists within) by action. The precise nature of this state will be discussed in
section 1.3.1. For now it is prudent only to call it ‘X’. In Newtonian terms there is no
effect, no action, without a cause and that cause is ‘X’. The effect comes about
28
because a person, whatever his practical reasons for doing so, sets his mind to
bringing it about and acts in a manner, precipitated by ‘X’, to do so. Section 1.3.1 will
be focused on defining the character of ‘X’ and using that to settle on a tentative
definition of action itself.
1.3.1 Defining ‘Action’
Thomas Aquinas wrote of the first principles of action:
‘Virtue dictates a certain perfection of a power. Now a thing’s
perfection is considered chiefly in regard to its end. But the end of
power is act. Wherefore power is said to be perfect, according as it is
determinate to its act...’71
Aquinas appears to define ‘act’ with reference to the ‘end’ of the exercise of ‘power’.
The means by which the end (‘act’) is achieved is ‘power’ and ‘power’ to Aquinas
denotes will and virtue. Aristotle72 understood action in a similar manner. He reasoned
that human beings have a function specific to them and that this function must be an
activity of the psyche (the soul) in accordance with reason (logos). Aristotle identified
the pursuit of happiness and wellbeing as the aim of all deliberate human action, and
felt that this was the optimum activity of the soul. Although, outside of Utilitarian
circles, the claim that all deliberate action is done in the pursuit of one’s wellbeing
and happiness is plainly an overstatement, Aristotle identifies a key feature of the
philosophical understanding of action in his references to the ‘soul’. To him the soul
seems to be the beginnings or point of genesis of deliberate human action. Modern
thinkers in the field refrain from using this word, but the concept it captures – the idea
of some intangible beginnings from which action comes – is prevalent in modern
discussions.73
Hornsby74 for example argues that actions are events begun beneath the surface of the
skin. The argument for this highlights an ambiguity in the slogan ‘all actions are
71
http://www.ccel.org/a/aquinas/summa/FS/FS055.html#FSQ55OUTP1, Q. 55 a. 1. (accessed on 14 th
November 2009 at 13.15pm).
72
Foot P, (2001) op. cit.
73
See for example, Velleman J D, (1989) op. cit.; Velleman J D, (2000) op. cit.; Buss S, (1999) op. cit.;
Rawls J, (1955) op. cit.; Schapiro T, (2001) op. cit.; Korsgaard C, (1990) op. cit.; Korsgaard C, (1996)
op. cit.
74
Hornsby J, Actions (London: Routledge & Kegan Paul 1980).
29
bodily movements’, for if movement is required for action the phrase is inaccurate.
The ambiguity stems from the fact that ‘move’ is one of the class of verbs that can
occur either transitively75 or intransitively.76 Nominal expressions containing such
verbs are therefore ambiguous because word order and sentence structure can change
the perceived cause of the action under scrutiny. Take for example the phrase: ‘the
movement of the flag’. The ‘movement’ can refer to either the action of someone’s
moving the flag or to the resultant movement of the flag. Transitive verbs therefore,
claims Hornsby, are the only form which make the assertion ‘all actions are bodily
movements’ true.
It appears, on Hornsby’s logic, that there are species of action that are not evidenced
by bodily movement. The possibility that cognitive processes are actions has been
taken up by proponents of volitional theory, of whom Frankfurt is one. Frankfurt’s
thesis delineates between ‘high order volitions’ and ‘action-determining volitions’.
Volitions, to Frankfurt, are desires, and come in two further forms to those already
mentioned: first-order and second–order. First-order volitions are desires about
anything else, such as to own a new car, or meet the pope or drink alcohol. Secondorder volitions by contrast are the desire that a particular first-order desire be our will;
that is, that it be the one that moves us to act.77
Davis disagrees with Frankfurt’s conclusions on volitions being the motivating
desires behind action and surmises that actions are a species of ‘doing’:
‘Moving my arm is something I do; my doings are to be contrasted
with my states, things that I am. I may be frightened or
excited...watchful...tired...None of these are things that I do, and so
none is my action...Actions...(are) doings which we must say the
person does...’78
On this logic it is the volition79 or ‘will’80 behind a movement, the movement of one’s
arm for example, which turns what would otherwise be an unconscious or ‘bare’
75
In syntax a transitive verb is one which requires both a direct subject and one or more objects.
Intransitive verbs do not require objects. For example the words ‘sleep’ and ‘die’ are intransitive.
77
Frankfurt H, (1971) op. cit.
78
Davis L H, Theory of Action (Englewood Cliffs, New Jersey: Prentice-Hall, Inc 1979) at pg. 5.
79
According to Davis: ‘Volitions are attempts, and attempts – tryings – are doings.’ ibid., at pg. 17.
76
30
motion into an action. Will is separate from desire in that the former implies an action
has been, is being, or will be pursued where the latter may exist separate from any
move to pursue the desired goal. In Davis’ words, ‘...a doing (the arm moving under
its own weight for example)...is an action if and only if an event of the corresponding
type (the arm being moved) occurs as a result of the volition.’81 Utterly unconscious
‘doings’ like hiccupping and bleeding are not therefore ‘actions’ because they do not
occur as the result of a volition.
Another definition of action is provided by Anscombe, and defended by Davidson.
The ‘Anscombe-Davidson’ thesis is based on circumstances where a person might be
said to perform numerous acts at the same time. Goldman provides an instructive
example of such a scenario:
‘Suppose John does each of the following things (all at the same
time): (1) he moves his hand, (2) he frightens away a fly, (3) he
moves his queen to king-knight-seven, (4) he checkmates his
opponent, (5) he gives his opponent a heart attack, and (6) he wins
his first chess game ever.’82
According to Anscombe and Davidson John only performs one act (one ‘doing’ in
Davis’ terms) in the above example. John’s moving his hand, in their view, is
identical with his moving his queen to king-knight-seven; John’s moving his hand is
identical with his checkmating his opponent and so on. Understood in this manner
there is but a single act done, which can be defined in numerous ways. Anscombe
explains:
‘...a single action can have many different descriptions, e.g. “sawing
a plank,” “sawing oak,” “sawing one of Smith’s planks,” “making a
squeaky noise with the saw,” “making a great deal of sawdust,” and
so on...Are we to say that the man who (intentionally) moves his
arm, operates the pump, replenishes the water supply, poisons the
inhabitants, is performing four actions? Or only one? ... In short, the
only distinct action of his that is in question is this one, A. For
moving his arm up and down with his fingers round the pump handle
See Hinton B K, (2001) ‘A critique of Carl Ginet's intrinsic theory of volition’ 29 Behavior and
Philosophy 101.
81
Davis L H, (1979) op.cit., at pg. 25.
82
Goldman A I, A Theory of Human Action (Englewood Cliffs, New Jersey: Prentice-Hall, Inc 1970) at
pg. 1.
80
31
is, in these circumstances, operating the pump; and, in these
circumstances, it is replenishing the house water supply; and, in
these circumstances, it is poisoning the household. So there is one
action with four descriptions...’83
Davidson concurs and adds:
‘I flip the switch, turn on the light, and illuminate the room.
Unbeknownst to me I also alert a prowler to the fact that I am home.
Here I do not do four things, but only one, of which four descriptions
have been given.’84
And in another article Davidson writes:
‘But what is the relation between my pointing the gun and pulling
the trigger, and my shooting the victim? The natural and, I think,
correct answer is that the relation is that of identity.’85
Goldman, referring to the latter quote names this idea of singular acts and the
relationship between them and identity as the ‘identity thesis’.86 What can be drawn
from Goldman’s work is another conception of the idea of ‘action’. Stating his theory
in a sentence he writes: ‘To perform an act is to exemplify a property. A particular
act, then, consists in the exemplifying of an act-property by an agent at a particular
time.’87
To properly understand this idea, a brief digression into terminology is necessary.
According to Goldman one must distinguish between ‘act-types’ and ‘act-tokens’.
‘An act-type is simply an act-property...such as mowing one’s lawn, running, writing
a letter...’88 and so on. These things are properties89 because they can be true of, or
exemplified by a particular object at a particular time. By comparison an ‘act-token’ is
83
Anscombe G E M, Intention (Ithaca, New York: Cornell University Press 1958) at pgs. 11, 45-46.
Davidson D, (1963) op. cit., at pg. 686.
85
Davidson D, ‘The Logical Form of Action Sentences,’ in Rescher N (ed), The Logic of Decision and
Action (Pittsburgh: University of Pittsburgh Press 1967) at pg. 84.
86
Goldman A I, (1970) op. cit., at pg. 2.
87
ibid., at pg. 10.
88
ibid., at pg. 10.
89
Philosophers have a tendency to apply the term ‘property’ to such things as being 6 feet tall, being a
bachelor, or having red hair. They restrict the term to static ‘properties’, but Goldman feels this
restrictiveness is unnecessary. He believes that the term ‘property’ can apply equally to states like
‘buying a Jaguar’, where the ‘property’, the ‘buying’, is not a static state of affairs but a process which
the person doing the buying ‘exemplifies’. See: Goldman A I, (1970) op. cit.
84
32
‘...the exemplifying of a property by an agent at a time.’90 Therefore John’s moving
his hand at 2pm is described by Davidson as an ‘act-token’ of the property ‘moving
one’s hand’. Each ‘act-token’ is attributable only to a single property. As such John’s
moving his hand at 2pm is an ‘act-token’ of the property ‘moving one’s hand’, but not
of ‘moving the queen to king-knight-seven’. In this way Goldman’s thesis differs
from those of Davidson and Anscombe. The former contends that each of John’s acts
are separate where the latter pair maintain the opposite – that, as was noted above,
John’s moving his hand is identical with his moving his queen to king-knight-seven.
Davis’ idea of the ‘volition’ behind actions is a wise place to begin defining action
because it is focused on the state which precedes an action being done and can be
used to distinguish between simple ‘movement’ or unconscious action and volition
based action. Though volitional theory as a whole has been criticised,91 the basic
concept of some ‘thing’92 which drives action remains a plausible one and has been
corroborated by numerous scholars. Goldman, for example, discusses what he terms
‘feature X’ in the context of his thesis and although he does not specifically refer to
this ‘feature’ as a ‘volition’, his understanding of its part in propelling action
correlates with Davis’ closely. Discussing ‘feature X’ Goldman notes:
‘...(we are) aware, intuitively, of a characteristic manner in which
desires and beliefs flow into intentional acts. Certainly we can ‘feel’
a difference between a voluntary and an involuntary one, and this
feeling...is symptomatic of certain causal processes...’93
Theorists like Goldman and Davidson, and others such as John Locke94 and David
Hume,95 Carl Ginet96 and Michael Moore,97 agree that there is a ‘thing’ behind action
that turns a bare or involuntary movement into an action which is intended or willed.
The MSB concurs with this belief, and claims that in order for an action to be an
90
ibid., at pg. 10.
Ryle G, The Concept of Mind (New York: Barnes & Noble, Inc 1949) at pgs. 62-69.
92
The word ‘thing’ is used in place of ‘desire’ or ‘want’ here because a ‘volition’ as Davis understands
it is a totally separate concept from a desire. Indeed one can desire something yet not have the volition
required to actively go about getting it.
93
Goldman A I, (1970) op. cit., at pg. 62.
94
Laslett P (ed), Two Treatises of Government (Cambridge: Cambridge University Press 1988).
95
Hume D, (2007) op. cit.
96
Ginet G and Shoemaker S (eds), Knowledge and Mind: Philosophical Essays (Oxford: Oxford
University Press 1983).
97
Moore M S, Act and Crime: The Philosophy of Action and its Implications for the Criminal Law
(Oxford: Clarendon Press 1993).
91
33
action i.e. not simply an involuntary movement, there must be something, thus far
called ‘X’, in the mind of the actor. The appreciable consensus between the
aforementioned theorists lends credence to ‘X’ being a volition. Even with this
tentative conclusion though, further elaboration on the nature of volitions is necessary
to properly define the concept itself.
1.3.2 Defining Volition
There are contrasting opinions regarding the exact form and function 98 of ‘volitions’
and how best they should be categorised. Certain scholars, Moore being one of them,
Goldman and Austin99 two others, feel that the concept of a ‘volition’ is best described
as a kind of want, desire100 or wish. Others, Donagan101 for example, feel that neither
desires, beliefs, wants or wishes are ‘volitions’ and speak in terms of ‘choosing’ when
referring to the mental states that uniquely initiate action. Further, Harman,102
Grice,103 Melden104 and O’Shaughnessy105 substitute ‘choosing’ for talk of ‘willings’
which they take to be separate from intention and attribute as being the cause of
action.
There are vagaries of definition and shortcomings in each viewpoint. If ‘volitions’ are
taken to be beliefs then they, as beliefs are, must be understood to be cognitive states.
This conclusion is questionable, as one can believe that one will act in a certain way,
or that acting in a certain way is desirable, or that a certain act-type exists without
having decided to act at all. Thus, it is argued here, a ‘volition’ – the initiator of willed
action – is not rightly expressed by the term belief.
98
Contrast for example the writings of Moore and those of Locke, the former contending that a
‘volition’ is a species of intention where the latter felt it is a faculty of ‘will’ that causes bodily
movements. See: Moore M S, ibid., chapter 6 for discussion.
99
To Austin a desire is only volitional if its effect is instant. Thus the desire to move one’s arm is
volitional, where the desire to signal a left turn is not. Austin J L, How to do Things with Words
(Cambridge, Massachusetts: Harvard University Press 1962).
100
See Frankfurt H, (1971) op. cit., in support of desires being volitions.
101
Donagan A, ‘Universals of Metaphysical Realism’, in Loux M J (ed), Universals and Particulars:
Readings in Ontology (Garden City, New York: Doubleday, Anchor Books 1970).
102
Harman G, Thought (Princeton, New Jersey: Princeton University Press 1973).
103
Grice R, The Grounds of Moral Judgement (New York: Cambridge University Press 1967).
104
Melden A I, (1956) ‘Action’ 65 (4) Philosophical Review 523.
105
O’Shaughnessy B, (1956) ‘The Limits of the Will’ 65 (4) Philosophical Review 443.
34
If, instead, ‘volitions’ are taken to be desires or wants, they are a species of what
Davidson calls ‘pro attitudes’106 – an expression encompassing all motivational states
in practical reasoning – and if volitions are a kind of desire they would share this
motivational characteristic. Moore disputes this understanding of the term, noting that
‘volitions’ play an executory role in relation to wants and desires. This role entails
‘...executing our motivating wants and their accompanying beliefs into the actions that
serve them...’107 On this understanding ‘volition’ is taken to describe the motivation
behind attaining a desired thing rather than describing the desire itself. One can want
for something, to change the channel of a television for example, and require an
object to pursue that want, the remote control, whilst at the same time deciding not to
reach for it because one is too lazy. There is no ‘volition’ evidenced in this want to
change the channel because it, the want itself, does not prompt action. It is wise then,
given this distinction, that definitions of ‘volition’ are not collapsed into ‘...the
background motivational desires which they execute’108 and the MSB concurs with
this assertion. ‘Volition’ is not understood here to denote ‘want’ or ‘desire’, but, as
Moore argues, to refer to that part of cognition which works as an executor for one’s
wants and desires; the ‘X’ between a want and the action taken to bring about that
want.
There must be more to the definition of volition however than noting that it is neither
a want nor a desire but some ‘X’ which works as a facilitator for actuating those
things. Bentham and Mill take ‘volitions’ to be intentions to do certain acts, moving
one’s fingers for example, and this has been seconded by contemporary volitionists
such as Lehrer,109 Sellers,110 Brand111 and Walton.112 The concept of ‘intention’ –
philosophically, not legally speaking – comes closest to embodying the MSB’s
understanding of ‘volition’ and is split into two forms; ‘bare’, ‘pure’, ‘future’ or
‘present’ intention on the one hand and ‘complex intentions’, ‘further intentions’ or
106
See Davidson D, Essays on Action and Events (Oxford: Oxford University Press 1980) at pgs. 3-4.
Moore M S, (1993) op. cit., chapter 1.6 for discussion.
108
ibid., at pg. 120.
109
Lehrer K (ed), Freedom and Determinism (New York: Random House 1966).
110
Sellers W, (1973) ‘Actions and Events’ 7 Noûs 179.
111
Brand M, (1979) ‘The Fundamental Question in Action Theory’ 13 Noûs 131.
112
Walton D, (1980) ‘Omitting, Refraining and Letting Happen’ 17 American Philosophical Quarterly
319.
107
35
‘intentions-with-which’ on the other. For convenience these respective forms will be
henceforth referred to as ‘bare’ and ‘complex’ intention respectively.
Bare intention is understood to be an intention to do a future act. The intention to go
down town for example or to pick up the television remote would be ‘bare’. Complex
intention by contrast expands the definition of bare intention to include the reason
behind one’s action. Thus the ‘complex intention’ behind moving a hand to grasp the
television remote could be to change the channel. This in turn must be carefully
contrasted with one’s motive in changing the channel, for motive and reason are taken
to be separate by the MSB. Lord Bridge likewise distinguishes between motive (or
desire) and intention:
‘A man who, at London airport, boards a plane which he knows to be
bound for Manchester, clearly intends to travel to Manchester, even
though Manchester is the last place he wants to be and his motive for
boarding the plane is simply to escape pursuit. The possibility that
the plane may have engine trouble and be diverted to Luton does not
affect the matter. By boarding the Manchester plane, the man
conclusively demonstrates his intention to go there, because it is a
moral certainty that that is where he will arrive.’113
Lord Bridge’s man, as the example rightly points out, exhibits, by boarding the plane,
the intention to travel to Manchester. It is also rightly explained that the man’s motive
for boarding is to escape pursuit – reason and motive in this case are taken as one.
Lord Bridge’s thinking can be seen clearly through applying Anscombe’s ‘why’
questions114 to the scenario:
Q: “Why are you boarding the plane?”
A: “Because I intend to go to Manchester.”
Q: “Why?”
A: “To escape from the people pursuing me.”
The first paired question and answer supply the man’s intention, and the second pair
logically follows on and presents the reason why he is taking the action he is taking.
113
Lord Bridge in R v Moloney [1985] 1 All ER 1025 at 1037, [1985] AC 905 at 926. Also see: Buxton
R, (1988) ‘Some simple thoughts on intention’ Criminal Law Review 484.
114
Anscombe G E M, (1983) op. cit.
36
Applying the reasoning employed by this chapter – bare and complex intention – and
using Anscombe’s questions again, the scenario can be split differently:
Q: “Why are you boarding the plane?”
A: “Because I intend to go to Manchester.”
This first paired question and answer concern the man’s ‘bare’ intention – that behind
his initial movement (boarding the plane) – and the ‘complex’ intention behind that
‘bare’ intention. His reason for boarding the plane is to go to Manchester, as (in the
above example) the reason one picks up the television remote is to put into action the
want to change the channel. As such, ‘complex’ intention expresses one’s reason for
acting. The motive behind this ‘complex’ intention, be it going to Manchester or
changing the channel, is expressed by the next application of Anscombe’s ‘why’:
Q: “Why?”
A: “To escape the people pursuing me.”
At first glance both sets of questions, those exploring Lord Bridge’s reasoning and
those based on the MSB’s reasoning, are identical. However, depending on which
hypothesis one is exploring, the inferences drawn from them differ. To Lord Bridge
the man’s motive in boarding the plane was to escape pursuit, and this is also his
reason for boarding. Contrarily the MSB takes the man’s reason for boarding the
plane as being to go to Manchester, and his motive for so acting to be to escape
pursuit. This alternate interpretation can also be applied to the television example.
One’s bare intention is to reach for the remote control; one’s complex intention
(reason) is to change the channel, and one’s motive for changing the channel is
because the current one is boring.
Understanding ‘volition’ in terms of intention negates one of the most stinging
criticisms of the theory as a whole made, amongst others, by Taylor115 and Ryle.116
The critique states that ‘volition’ as a concept has no intrinsic characteristics other
than being ‘the unique cause of action’ or ‘the motivator behind action’. Restatements
of such descriptions, opponents feel, are not enough to elucidate the character of the
115
Taylor R, Action and Purpose (New Jersey: Prentice-Hall, Inc 1966) at pgs. 68-69.
Ryle G, (1949) op. cit., at pgs. 64-65. Also see Melden A I, (1960) ‘Willing’ 69 (4) Philosophical
Review 475.
116
37
‘volition’ in any understandable way. Hypothesizing that ‘volitions’ are a species of
intention undercuts this argument because it fits the concept into an already well
recognised piece of ‘mental machinery’.117 The MSB, much as Moore does when he
discusses the nature of volition, takes this latter view – that volition is a species of
intention.
Drawing a tentative close to this section, action is best defined in terms of the
contrast between it and mere movement. Movement without volition behind it,
(reflexes for example), is still by its nature ‘movement’ as the phrase is generally
understood, but it is not ‘action’. For movement to become an action ‘volition’ must
be exercised and ‘volition’ is a species of ‘bare intention’. Complex intention
represents the ends to which the action prompted by the bare intention is aimed.
Acting therefore is the realisation of an intention through volitional physical
movement. The next section aims to apply this reasoning to the concept of omissions.
1.3.3 Defining ‘Omission’
Clarkson and Keating note that ‘The distinction between positive acts and omissions
is crucial...but it is not always clear whether one is dealing with a positive act or an
omission.’118 This proposition, unhelpful as it is in providing the definitional clarity it
speaks of, reflects both the need for such clarity, and current academic and legal
thought on the subject of omissions. It is widely accepted that action is the antithesis
of omitting to act119 but defining precisely when one omits and when one acts is a
difficult and policy-ridden process.
This section is devoted to exploring Clarkson and Keating’s proposition in a general,
not strictly legalistic sense with a view to forming a rational (if tentative) definition of
an ‘omission’. On the current law it is enough to point out at this juncture that an
omission to act is punishable only if he who fails to act owes a duty to the person
injured or killed by his omission. Consequently if a duty does not exist the omitter is
117
Moore M S, (1993) op. cit., at pg. 121.
Clarkson C M V, Keating H M and Cunningham S R, Criminal Law: Text and Materials (6th edn
London: Thompson Sweet and Maxwell 2007) at pg. 97.
119
ibid. See also, Katz L, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Chicago: The
University of Chicago Press 1987); Ashworth A, (1989) ‘The scope of Criminal Liability for
Omissions’ 105 Law Quarterly Review 424.
118
38
not legally bound to render assistance, though arguably he would be morally liable if
he could have assisted but chose not to.
How then should inaction be distinguished from action? This question is best
approached on the understanding that the concept of omissions is not restricted to
simple ‘not-doings’.120 One can unintentionally ‘not-do’ an action, to save a drowning
child for example, because one is simply unaware of the child’s existence. In such a
situation it is ill-advised to refer to the ‘not-doing’ as an omission at all given the
inactive party’s lack of knowledge of the circumstances that his inaction affects. The
lack of a duty of care between the not-doer and the affected party is another clear
indicator of where the line between ‘not-doing’ and culpable omission lies.
It is possible, by contrast, to intentionally omit to act – knowing that the child is
drowning and omitting to save him irrespective of the fact that one could.121
Situations can also arise in the medical context where treatment is withdrawn,
removed or withheld completely from a dying patient when, on the basis of the
judgement in Airedale NHS Trust v. Bland122, continued treatment is no longer in his
best interests. These facts though are simply restatements of Clarkson and Keating’s
observations that omissions exist alongside actions. As such they offer minimal aid in
formulating a workable definition of what it is to omit to act.
According to Davis, and as was briefly noted above, there are types of omission
which are intentional. Roderick Chisholm provides the following example: ‘...one man
greets another and the second man does not respond.’123 The silent man in the
example may have intended to remain quiet despite the greeting. According to this
understanding of volitional theory and the definition of action given at the end of the
This phrase is coined with reference to Davis’ idea of actions being a form of ‘doing’. Omissions of
action would rightly be described as ‘not – doing’ or ‘not – doings’ because they appear to lack the
physical activity required for a ‘doing’ to be said to have occurred.
121
Note that even in countries where so called ‘Bad Samaritan’ statutes exist which impose a general
duty to prevent serious harm from befalling others, there are ways to circumvent the responsibility. If
one can show that preventing a harm would have involved ‘unreasonable’ risk or inconvenience the
duty to prevent it is waived. See: Feinberg J, Harm to Others (New York: Oxford University Press
1984) chapter 4; Duff R A, Intention, Agency and Criminal Liability: Philosophy of Action in the
Criminal Law (Oxford: Basil Blackwell Ltd 1990).
122
Airedale NHS Trust v. Bland [1993] 1 All ER 821
123
Chisholm R M, ‘The Agents and the Cause’ in Brand M and Walton D (eds), Action Theory
(Dordrecht: D. Reidel Publishing Company, 1976) at pg. 207; Davis L H, (1979) op. cit., at pg. 81.
120
39
preceding section, the silent man’s bare intention would be maintaining his silence
and his complex intention may have been to act rudely by snubbing the man who
greets him. The presence of these forms of intention (used as they are in section 1.3.1
to describe an action) does not make the omission of a greeting an action. Instead they
signify the background mental states which underlie most if not all of human
perception and cognition (in much the same way the same phrases are used to
describe action). In order for the omission to become an action, a volition must be
present as Davis explains: ‘...omissions, intentional or otherwise...are not
actions...actions are volitions, but an omission is the failure of a volition to occur.’124
Volitions are therefore not synonymous with ‘bare intention’; they are a species of it
only and it is the absence of a volition (and the physical action which is caused by the
volition) which, on this understanding, distinguishes action from omission. Intentional
omissions may therefore be described as the (bare) intentional not-doing of an
otherwise volitional action to effect the (complex) intention of the omitter.
On this logic, unintentional omissions would be characterised by their complete lack
of any kind of basic or complex intention, as well as the absence of a volitional action
to effect that intention. The situation which the omission affects is unknown to the
person who is ‘omitting’ to provide assistance and because of this, that person is
neither morally nor legally bound to assist.
Now that the definitions of action and omission have been discussed, the chapter can
move on to how they are approached at law, and how, as a result, the arbitrariness the
MSB highlights, is perpetuated. This maintenance allows a physician who withdraws
treatment to claim that he did not perform an act in effecting that withdrawal and, as
such, cannot be held liable if the patient from whom treatment was withdrawn dies as
a consequence.
124
Davis L H, ibid., at pg. 82.
40
1.4 Perpetual Illogicalities
‘…the distinction between acts and omissions leading to death is
also commonly understood to be the basis for the distinction between
killing and allowing to die…’125
As Brock notes in the above quotation, the distinction between acts and omissions is
best seen at law as that between killing and letting die. Arguing that there is no
distinction between these differing ‘acts’ is currently illogical since, simply by
looking at Wreen’s criteria and contrasting cases like Airedale NHS Trust v. Bland,126
R (on the application of Pretty),127 R v. Cox,128 R v. Moor,129 R v. Adams130 and those
of NHS Trusts A and B v. M131 and H,132 it is clear that a division is maintained
vigilantly.
The distinction is a telling one, since generally, at law one must act to be guilty of a
criminal offence. To be culpable for omitting to act, a duty of care must exist between
the person omitting and the person that omission affects. Duties arise between people
who share some kind of ‘special relationship’,133 but may be abrogated if inaction is
in the best interests of the person affected.134
Later it will be argued that maintaining the distinction between acts and omissions
perpetuates an illogicality within the law; that in order to withdraw or remove
treatment the doctor responsible must act. To ground this supposition in fact it is
necessary to first explore how the distinction is made.
125
Brock D W, Life and Death: philosophical essays in biomedical ethics (Cambridge: Cambridge
University Press 1993) at pg. 162.
126
Airedale NHS Trust v. Bland [1993] 1 All ER 821.
127
R (on the application of Pretty) v. DPP [2001] UKHL 61; [2001] 3 WLR 1598.
128
R v. Cox (1992) 12 BMLR 38.
129
R v. Moor [2000] Crim. L.R. 31.
130
R v. Adams [1957] Crim. L.R. 365.
131
NHS Trust A v. M [2001] 2 FLR 367.
132
NHS Trust B v. H [2001] 2 FLR 501.
133
Special relationships can arise in numerous ways; contractually; by virtue of holding a public office;
between parents and their children; between a doctor and his patients; ownership of property; because
one has been assumed.
134
Such was the case in Airedale NHS Trust v. Bland [1993] 1 All ER 821 at where it was decided that
further treatment was no longer in Anthony’s best interests.
41
1.4.1 The distinction based on acts and omissions: what it is and how it is wrong
The distinction at law between lawful inaction and unlawful action is made on
semantic grounds. Phrases like ‘active euthanasia’ and ‘passive euthanasia’, acts and
omissions, the ‘withdrawal’ of, ‘withholding’ of and ‘removal’ of treatment are used
to separate the concepts. Lord Goff in Bland summarised the current law:
‘It is not lawful for a doctor to administer a drug to his patient to
bring about his death, even though that course is prompted by a
humanitarian desire to end his suffering, however great that suffering
may be…So to act is to cross the Rubicon which runs between – on
the one hand the care of the living patient and on the other hand
euthanasia – actively causing his death to avoid or to end his
suffering. Euthanasia is not lawful at Common Law.’135
To put these concepts into practice, let us imagine for a moment two patients; patient
C and patient D. These patients are identical in every way. They are both suffering
from terminal lung cancer and have been receiving treatment for the disease for a
number of years. Both are on respirators, are unable to independently care for
themselves and rely on nurses for round the clock care. C and D decide, after all these
years of fighting and increasingly painful treatment and symptoms that they wish to
seek euthanasia.
After much discussion C’s doctor makes it clear that he will not perform active
euthanasia on C. Instead he incrementally reduces the amount of oxygen fed through
C’s ventilator every day. C dies two weeks later. D’s doctor on the other hand is not
discomforted by the idea of active euthanasia and administers a lethal dose of
Potassium Chloride to him, killing him instantly.
Nothing but the manner of their deaths separate C and D. However, the fact that D’s
doctor is said to have ‘acted’ intentionally in causing the death makes him culpable
for his patient’s death, where the ‘omission to treat’ which precipitated C’s eventual
death would not bring a similar guilt upon his doctor.136 This reflects the popular view
135
Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 867.
It was argued in the case of Ms B v. An NHS Hospital Trust [2002] EWHC 429 (Fam), the facts of
which inspired the ‘C’ example, that the gradual lowering of her supply of oxygen in place of removing
136
42
that the duty not to harm others is stronger than the duty to assist137 and that it is more
just, in cases like that of C and D, not to act than to do so.
It is clear from the C and D example that the ‘ends’ of both sets of circumstances are
the same but for the two week time lapse between them. Both of the patients die in the
end. Thus Rachels’ Equivalence thesis (detailed in greater depth later) and the MSB
on this issue appear correct. The ends of both acting to end life and omitting life
sustaining treatment are equivalent. While this observation is objectively accurate, it
says nothing of the moral equality of C and D’s doctors’ actions, nor does it prove the
MSB’s claim that both means AND ends in cases concerning active and passive
euthanasia are the same.
Motive feeds into the discussion of the first of these issues. At law one does not take
motive into account at trial.138 That said it is used to assist the judge in passing
sentence in cases where it is thought relevant to do so. Take for example the
Guidelines on assisted suicide created by the Director of Public Prosecutions (DPP)
following the case of Purdy v. DPP.139 Paragraph 21(5) makes the compassionate
motive of the person who assisted in a suicide a prime consideration in determining
whether his case is brought to trial. The fact that there has never been a conviction for
‘mercy killing’140 in England and Wales reinforces the idea that motive is indeed
relevant as the only appreciable difference between a ‘mercy’ killing and a murder.
As such the physicians’ motives in C and D’s cases are relevant considerations in
determining whether either doctor’s actions were morally more abhorrent.
her ventilator completely as she wished was a course of action (the word action used loosely as it was
considered an omission) more for the benefit of the doctors than for that of the patient.
137
Herring J, (2006) op. cit., at pg. 464.
138
This is questionable given the run mercy killers have had in diminished responsibility cases. See
Dell S, Murder into Manslaughter: The Diminished Responsibility Defence in Practice (Oxford:
Oxford University Press 1984) at pgs. 35-36.
139
R (on the application of Purdy) v. DPP [2009] UKHL 45.
140
There is no offence of ‘mercy killing’ in English law. In cases where a person has acted with a
merciful motive and killed an ailing relative or friend who was in their care, the accused is most
commonly charged with murder and is then availed of the defence of diminished responsibility. The
successful application of this defence reduces the charge of murder to one of manslaughter, the
sentence for which is placed at the discretion of the judge.
43
What were those motives then? It is profoundly unlikely that either doctor would
desire his patient’s death141 – irrespective of the actions of people like Harold
Shipman142 – in the same way a would-be murderer desires his victim’s. The
situations are incomparable on almost every level but for the procurement of a death.
The most often cited motivation is the amelioration of pain. Indeed double effect is
not available to the doctor who acts to end his patient’s life, foreseeing that end but
not intending it, with a substance which has no analgesic properties.143
It can
therefore be assumed that C and D’s doctors are doing what they are doing for good
motives. Both knew their patients suffered greatly and both wished to stop that
suffering, and yet despite this, C’s doctor will not be culpable while D’s will. Brock
makes a similar point:
‘A physician who stops a respirator at the voluntary request of a
clearly competent patient who is terminally ill and undergoing
unrelievable suffering would commonly be understood by all
involved as allowing the patient to die, with the patient’s underlying
disease being the cause.’144
The physician in this example, since he is acting with the patient’s consent, is seen to
be a bastion for his self-determination and his right to choose how he wishes to end
his life. His pure motives, the want to safeguard those rights and most likely relieve
the patient’s suffering, allow us to label his actions as ‘passive’; as allowing to die
rather than killing.
Suppose however that the patient had a greedy nephew. This nephew stands to inherit
his money and has become impatient for the old man to die so he will get it.
‘Thinking that his uncle is prepared to continue on the respirator
indefinitely, he slips into the room, turns off the respirator, and his
uncle dies. The nephew is found out, confronted, and replies, “I
141
However, this should not be read as indicating that either physician did not realise that by acting (or
‘omitting’) as he did his patient would die. Indeed if the discussion in chapter 2 section 2.3.2 is
accurate the doctor may well have intended the death, irrespective of his not wanting it to occur.
142
http://news.bbc.co.uk/1/hi/in_depth/uk/2000/the_shipman_murders/news_and_reaction/default.stm
(accessed on January 6th 2011 at 18.55pm).
143
R v. Cox (1992) 12 BMLR 38.
144
Brock D W, (1993) op. cit., at pg. 163.
44
didn’t kill him, I merely allowed him to die; his underlying disease
caused his death…’145
‘Surely’, Brock notes ‘this would be dismissed as specious nonsense.’146 The nephew
killed his uncle deliberately. Yet, it is not implausible to argue that he acted in the
same way the physician did in the first example. Even down to the physical
movements it took to disconnect the respirator. The distinction is firmly based on his
motive for acting the way he did, not on whether he acted or omitted to act. Identical
‘actions’ can therefore be seen as both killing and letting die, depending on the
circumstances surrounding them and who performs them.
The basis for this reasoning, in Fletcher’s opinion, is ‘...one of the principles which
sets the framework for assessing moral responsibility.’147 Simply by their nature, acts
which cause death are seen as worse than omissions with the same effect. Moore
elaborates: ‘Drowning a child makes the world a worse place, whereas not preventing
its drowning only fails to improve the world.’148 In cases like this the MSB and
Rachels’ thesis noticeably falter in their logic. Indeed both theses struggle in cases
where an action which causes death is contrasted with a complete or pure omission of
involvement.
However, if the contrasted scenarios concern the withdrawal of positive involvement,
the lost ground is slowly regained.149 Rachels’ thesis focuses on the equivalence of the
‘ends’ of active and passive euthanasia. The MSB, as noted above, takes this a step
further by alleging a similar parity between the ‘means’ by which those ends are
pursued. The opinions of Beauchamp and Childress are an appropriate starting point
for exploring this facet of the MSB. They state, in critiquing the act/omission
distinction (as the MSB does) that:
‘…the distinction between killing and letting die suffers from
vagueness and moral confusion. The language of killing is so
145
ibid., at pg 163.
ibid., at pg. 163.
147
Fletcher G P, Rethinking Criminal Law (New York: Oxford University Press 2000).
148
Moore M S, (1993) op. cit., at pgs. 58-59.
149
The phrase ‘withdrawal of positive involvement’ refers to situations where an already given course
of treatment is withdrawn or removed. The withdrawal of a ventilator or that of artificial hydration and
nutrition are ‘withdrawals of positive involvement’.
146
45
thoroughly confusing – causally, legally, and morally – that it can
provide little if any help in discussion of assistance in dying.’150
Similarly, Lord Goff said in Airedale NHS Trust v. Bland:
‘…it can be asked why, if a 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. But the law does not feel able to authorise euthanasia,
even in circumstances such as these, for, once euthanasia is
recognised as lawful in these circumstances, it is difficult to see any
logical basis for excluding it in others.’151
The judgement in Bland gives rise to an obvious problem for the MSB. A thesis
which intends to prove there is no distinction (in certain qualified circumstances)
between acts and omissions falters on the back of a judgement which states the
categorical opposite. Indeed in the wake of Bland it could be asked whether omissions
can kill at all.
Having said that, case law exists in which an omission to act caused culpability to
accrue because that omission breached a duty of care between the defendant and the
victim. R v. Pittwood,152 where a signalman omitted to close the gates bracketing a
tram line resulting in a pedestrian being knocked down and killed, is a prime example.
The same can be said for the case of R v. Instan,153 where the niece of an elderly
woman took it upon herself to care for her but later came to omit to do so, denying the
woman food and necessary medical care. The resultant death-by-omission was held to
be murder. R v. Stone and Dobinson154 is a further example. Here the pair of
defendants took in an ailing relative, despite the fact that neither of them had the
mental capacity to summon an ambulance for her when her condition became critical.
The court found them guilty of manslaughter by gross negligence. R v. Gibbons and
150
Beauchamp T L and Childress J F, Principles of Biomedical Ethics (5th edn New York: Oxford
University Press 2001) at pg. 224.
151
Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 868.
152
R v. Pittwood (1902) 17 TLR 37.
153
R v. Instan [1893] 1 QB 450.
154
R v. Stone and Dobinson [1977] QB 354 (CA).
46
Proctor155 is a further example of killing by omission. Here the defendants were
convicted of the murder of ‘Nelly’ the male defendant’s daughter.
Gibbons and Proctor raises a slight voice of dissent to the earlier claim that the MSB
and Rachels’ Equivalence thesis cannot properly be applied to cases of pure omission
or pure non-involvement. It is clear from the outcome of the case that killing by the
complete omission to feed incites culpability. However, extending the MSB past its
above recognised limitation in pure omission cases cannot be achieved on stable
academic ground. Doing so will therefore be avoided and attention returned to cases
where an omission concerns the taking away or stopping of some already started
action.
Re-centring the discussion on medicine, the MSB claims that in switching off a life
support machine the doctor acted; he did something. It is common sense to say so for
had he not, nothing would have occurred at all and the patient would have continued
living on his life support. Katz’s thesis is instructive here. To Katz, an ‘act’s’156
defining characteristic is that it (the act) would not have occurred if the person
causing it suddenly did not exist. In his book Bad Acts and Guilty Minds157 he
propounds the case of Kitty Genovese as an example. Ms Genovese’s murder,
witnessed by numerous people from surrounding apartment blocks, was only reported
after her assailant had fled the scene, some 15 minutes after his initial attack. He had
returned twice prior to fleeing, finally killing his victim as she lay prostrate at the
bottom of a stairway. In using this case to distinguish acts from omissions Katz notes:
‘If the witnesses to Kitty Genovese’s murder had not existed, she
would still have died. But if her assailant had not existed, she would
not have died.’158
The same reasoning can be brought to bear in situations regarding medical omissions,
like that purportedly occasioned by the withdrawal of life support. If current medicolegal rhetoric is to be believed, the physician is a mere witness to his patient’s death,
155
R v. Gibbons and Proctor (1918) 62 JP 287, 13 Cr App R 134.
The word here is taken as indicative of something occurring, not implying that this occurrence is
‘active’ as opposed to inactive.
157
Katz L, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Chicago: The University of
Chicago Press 1987).
158
ibid., at pg. 143.
156
47
like the people who witnessed the Genovese murder were. If this was the case – if the
physician truly did nothing in withdrawing life support from his patient – his abrupt
disappearance from the scenario would have no effect on the outcome.
However, as it was posited in section 1.3.2, this conclusion is arguably inaccurate.
Referring back to the case of Bland,159 had life support been maintained, the patient
would in all likelihood have remained in his PVS for a number of years. The MSB’s
argument can be restated by applying Newton’s160 law of physics to the situation.
Every action has an equal and opposite reaction. So for something, a reaction, to
occur, there must first be an action. The doctor acts, turns off the life support, and the
patient dies. Whether one can argue that it was his underlying illness that killed him
or not,161 the doctor’s action precipitated the patient’s death. Where there is an action,
there is a reaction. For every cause, there is an effect; or better stated, for every effect
there is a cause. Actions and omissions to act, in this sense, are interchangeable.
James Rachels’162 Equivalence thesis expresses a similar opinion and states that since
the outcome of both killing and letting die are the same i.e. the patient dies and his
family grieves, the two forms are morally equivalent. Neither practice is seen as more
or less reprehensible than the other, unless they are practiced against the patient’s
wishes.
As was noted above, the MSB takes Rachels’ contention a step further in exploring
the illogicality surrounding killing and letting die. It is contended that not only are
their ends the same, the means to reach those ends, whether it is an ‘active’ act to end
a patient’s life, or an omission to act, are also both physically and morally equivalent.
A brief look at the lexis surrounding these concepts illustrates this point.
159
Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 868.
Whitehead A N and Russell B, Principia Mathematica (New York: Cambridge University Press
1927).
161
Herring argues that ‘An omission cannot cause death; death is caused by the underlying medical
condition. An omission may be necessary for death, while it cannot be sufficient.’ Herring, (2006) op.
cit., at pg. 464.
162
Rachels J, (1975) ‘Active and passive euthanasia’ 292 New England Journal of Medicine 78; Perrett
R W, (1996) ‘Killing, letting die and the bare difference argument’ 10 (2) Bioethics 131.
160
48
Withdraw (al)163
Noun
1. A retraction of a previously held position.
2. The act of taking out money or other capital.
3. The act of withdrawing; “the withdrawal of French troops from Vietnam”.
4. The act of ceasing to participate in an activity.
5. The act or fact of withdrawing.
Remove (al)
Noun
1.The act of removing.164
2.The act of removing.165
3.The act of removing; “he had surgery for the removal of a malignancy.”166
4. The act or process of removing: the fact of being removed.167
There is an obvious crossover between killing and letting die here, at least on the
semantic level. It is contended therefore that the practice of ‘letting die’, despite this
label, is not truly an omission at all. In order to withdraw or remove treatment the
doctor responsible must act. That is not to say that doctors involved in withdrawing
treatment from patients when it is in their best interests are committing murder. The
MSB alleges the opposite in fact. Since letting die or omitting treatment is seen in a
positive light, it is argued here that active steps which achieve the same result should
be similarly positively cast. As such the distinction between an act that ends life and
an omission to act that ends life is illogical. Yet, as it has been shown, it endures.
According to a survey by Coulson168 75% of UK medical practitioners accept a moral
distinction between active and passive euthanasia, and by extension killing and letting
die, as of important moral significance.
In response to this declaration of significance Gillon asks the obvious question: ‘What
if any, moral importance resides in the distinction between killing and letting die?’169
This question is all the more pertinent when the MSB’s efforts to diminish the
distinction between the two practices are taken into account. If action and inaction are
163
http://dictionary.reference.com/browse/withdrawal (accessed on April 8 th 2008 at 12.22pm).
ibid.
165
ibid.
166
ibid.
167
ibid.
168
Coulson J, (1996) ‘Till Death Do Us Part’ British Medical Association News Review September: 2325.
169
Gillon R, Philosophical Medical Ethics (Chichester: John Wiley & Sons 1999) at pg. 126.
164
49
equivalent in practical terms (in their ends and means), it would be assumed that their
respective moral weighing is also equivalent. Gillon notes that to most people
‘...actions that result in some undesirable consequence are always morally worse than
inactions, or failures to act, that have the same consequence…’170 However, much as
the MSB does, he rejects this distinction on the basis of Rachel’s Equivalence
argument and concludes that ‘it is not the acts and omissions doctrine that explains the
moral distinction (between killing and letting die).’171
Rather, it is argued here (and implied by Gillon), that it is the actor’s reasons for
acting that dictate the moral rightness or wrongness of his actions or omissions, and
indeed, in certain circumstances, their characterisations as ‘acts’ or ‘omissions’.172
This conclusion is best explored by using the following example:
‘A patient suffering from untreatable widespread metastatic cancer
has been labelled by the consultant and his ward team as “Do not
resuscitate”; cardiopulmonary resuscitation would not, they think,
benefit him and would probably harm him. The patient had a
myocardial infarction in the presence of the consultant, who quite
deliberately does not resuscitate him, and the patient dies...Now,
consider the same patient except that this time the houseman and
cardiac arrest team on night duty have resuscitated him after his
infarction, and he is unconscious on a respirator...The consultant
turns off and disconnects the respirator, and the patient dies almost
immediately...’173
There is no doubt that in the second case the consultant acted in turning off the
patient’s respirator, as opposed to omitting to act in the first, and caused his death as a
result.174 He would not, however, be seen as acting immorally in either instance
because his reasons for doing so in both are laudable, based as they are on an
assessment of the harm occasioned by the patient should he be subjected to
resuscitation. The same cannot be said though if the consultant’s reasons for acting
were disreputable. Gillon points this out rhetorically by asking:
170
ibid., at pg. 127.
ibid., at pg. 127.
172
ibid.
173
ibid., at pg. 129.
174
ibid., at pg. 129.
171
50
‘...whether the consultant who did the same thing for bad motives –
for example, to get away for the weekend – would be described as
causing the patient’s death by disconnecting the ventilator.’175
It seems common sense that, with these changed circumstances, the consultant’s act in
disconnecting the ventilator is seen as immoral, irrespective of the fact that nothing in
the chain of events leading up to its effect – the patient’s death – has changed. The
same can be seen in Rachels’ example:
‘Smith and Jones both stand to inherit fortunes if their 6 year old
cousins predecease them. Smith drowns his cousin in the bath,
making it seem like an accident. Jones intends to drown his cousin,
but on creeping into the bathroom sees the boy slip, bang his head,
and slide unconscious beneath the water. Jones waits to make sure
the boy really does die and is ready to push his head back under the
water if he should surface, but the boy drowns accidentally.’176
It is not the character of the act and omission that Smith and Jones take respectively in
ensuring their cousins’ deaths that affect the objective observer’s assessment of their
moral culpability, but, as with Gillon’s consultant, their reasons for causing and
allowing the deaths to take place that labels them malefactors.
1.5 Conclusion
The conclusion of this chapter is best put over as a statement of fact. At law ‘killing’
is seen as wrong and ‘letting die’ is arguably not. Irrespective of the stance the MSB
takes regarding the faulty act/omission distinction when it comes to active and passive
euthanasia, at law the distinction is upheld and defended jealously. Harris asserts that
we, when facing matters of such moral importance, should
‘...be absolutely sure that we have faced squarely the full import of
what we are doing…if we disguise the facts from ourselves and
others by various distancing strategies, we may permanently shield
ourselves…from full awareness of what we are about…’177
175
ibid., at pg. 129.
Rachels J, (1975) op. cit.
177
Harris J, (1985) op. cit.
176
51
In light of this statement it is claimed here that the distinction between ‘killing’ and
‘letting die’ in euthanasia cases should instead be expressed as one between ‘nonpermissible’ and ‘permissible’ killing. This is an undoubtedly strong piece of
phraseology. In it there is no way to distinguish, as law and policy is fond of doing,
between when the doctor involved can take the ‘step back’ from the patient’s death by
pleading that he ‘only’ let him die and when he cannot. Furthermore this phraseology
declares that certain forms of killing are permissible. By distinguishing ‘killing’ from
‘letting die’ it is assumed that the processes behind both are different; one active and
therefore wrong, the other passive and therefore justifiable. The MSB alleges this
distinction to be a contrivance. With the terms ‘permissible’ and ‘non-permissible
killing’ that option is taken away. The modus operandi of the person doing the killing
is the same. It is the circumstances surrounding the resultant death which absolve him
of guilt.
Chapter 2 moves the discussion onto the second facet of the MSB theory – its
understanding of intention and foresight, and its argument for those things being
blurred beyond feasibility by the DDE.
52
Chapter 2
Intention, Double Effect and the Moral Step Back
2. Introduction
The argument was made in sections 1, 1.2 and 1.4.1 of chapter 1 that the difference
between acts and omissions is ‘blurred beyond distinction’178 by the courts, to allow
doctors to take a ‘moral step back’ (MSB) from the possible negative consequences of
providing (or omitting to provide) proper medical care to their patients. This chapter
moves on from that to introduce the second part of the MSB theory: that the
distinction between intention and foresight in the context of the doctrine of double
effect (DDE) is, like that between acts and omissions, inescapably imprecise. It will
be argued in section 2.4 that, although it is possible to foresee a consequence and not
intend it, the distinction between intention and foresight does not survive when the
foreseen consequence is realised through action. Kuhse is of a similar point of view as
regards the moral weight of action:
‘...moral agents do not just bring about certain consequences in the
world, they bring them about intentionally and are responsible for
them because they have brought them about voluntarily and
deliberately...’179
In questioning the importance of the distinction between intention and foresight in the
context of the DDE, Kuhse argues that it is the exercise of a choice to act in pursuance
of a ‘state of affairs that includes the...(unwanted) consequence’180 rather than the
‘...distinction between ‘intended-as-a-means’ and ‘foreseen-as-a-consequence’...’181
that defines the moral rightfulness of pursuing that consequence. This is a view shared
by Hart and Frey, the former expressing it through the notion of control,182 and the
178
Chapter 1 section 1.5 of this work.
Kuhse H, The Sanctity of Life Doctrine in Medicine: A Critique (Oxford: Clarendon Press 1987) at
pg. 165.
180
ibid., at pg. 165.
181
ibid., at pg. 165.
182
Hart H L A, Punishment and Responsibility (Oxford: Oxford University Press 1968) at pgs. 121-2.
179
53
latter through his ‘control responsibility’ theory.183 A doctor, claims Frey, has the
choice of whether or not to proceed with a course of action – usually providing a dose
of medication to control symptoms or pain. If he decides to do so and death follows
he is a ‘...causal factor in (that) death, whether he...directly intends (it) or knowingly
brings it about.’184
Others, Duff185 for example, believe that the doctor in Frey’s example is merely
acting intentionally when providing the medication as opposed to acting with the
intention to procure the foreseen consequences of doing so. He cannot therefore be
said to have intended to cause the death – if one occurs at all – because, while his
actions were performed intentionally i.e. they were not forced or coerced, he did not
intend the unwanted consequence acting brought about.186
The distinctions at the centre of the above opinions – that between intentional action
and acting intentionally, and between intention and foresight – are the focus of this
chapter. It would not be inaccurate to point out that both of the contested formulations
seek, through different means, to make the same distinction – difference between
intended and foreseen consequences – clear. Despite this similarity the MSB would be
making an incomplete case against the DDE if it did not tackle both distinctions
equally. It will therefore be argued that if both the intentional action/acting
intentionally distinction and that between intention/foresight are removed, the courts
have no recourse but to convict the morally blameless physician of murder. These
issues will be addressed in section 2.3.2. Presently the chapter turns to the legal
definitions of intention and foresight.
Frey R G, ‘Intention, foresight and killing’ in Beauchamp T L (ed), Intending Death: The Ethics of
Assisted Suicide and Euthanasia (Englewood Cliffs, New Jersey: Prentice-Hall 1996).
184
ibid at pg. 73.
185
Duff R A, Intention, Agency and Criminal Liability: Philosophy of Action in the Criminal Law
(Oxford: Basil Blackwell Ltd 1990) at pgs. 76-80.
186
Williams G, Intention and Causation in Medical Non-killing: The impact of criminal law concepts
on euthanasia and assisted suicide (New York: Routledge-Cavendish 2007) at pg. 22. See also,
Rehnquist CJ in Vacco v. Quill (521 U.S. 793; S. Ct. 2293; 1997 U.S. LEXIS 4038; 138 L. Ed. 2d 834)
at 15.
183
54
2.1 Intention and Foresight
Section 8 of the Criminal Justice Act (1967) lays down an evidential rule as to how
intention is to be proved and makes it clear that intention is a subjective state of mind.
In trying to ascertain what the defendant intended, the court or jury must draw
inferences from all of the relevant evidence. That said, there is no statutory definition
of intention in English law.187 Generally speaking it is agreed that there are two broad
categories of intention relevant to the criminal law:
1. A consequence is intended when it is the aim or objective of the
actor: ‘direct intention’.
2. A consequence is intended when it is foreseen as a virtual certainty:
this is known as ‘oblique intention’.
With reference to the second bullet point, the courts once adopted a broader view in
holding that a consequence was intended when it was foreseen as a probable or
likely188 result of the defendant’s actions. Lord Diplock in the case of R v. Hyam189
for example, spoke of intention in terms of a ‘willingness’ to produce an evil
consequence as being the mens rea needed to satisfy a requirement in the law of
homicide. To Lord Diplock intention did not connote want or desire, and he did not
distinguish between a person who does an act because he desires to produce an ‘evil’
consequence, and the state of mind of one who does the same act possessed of
foresight of the likely ‘evil’ consequence. Lord Hailsham in Hyam on the other hand
does make such a distinction, and cites Lord Asquith’s ruminations on intending
future events to support his claim:
‘An ‘intention’ to my mind connotes a state of affairs which the
party ‘intending’...does more than merely contemplate; it connotes a
state of affairs which, on the contrary, he decides, so far as in him
lies, to bring about, by his own act of volition.’190
The phrase ‘English law’ throughout this work denotes the law of England and Wales.
The phrase ‘likely consequences’ is used in this work to denote a probable but not certain outcome.
When used in connection to the DDE it is favoured in place of using an approximation like ‘virtual
certainty’ because, as section 2.3.1 of this chapter notes, death is not certain enough to warrant such a
description.
189
Hyam v. DPP [1975] AC 55.
190
Cunliffe v. Goodman [1950] 2 K.B. 237 at 253.
187
188
55
Since the case of Hyam the House of Lords has retreated from the idea of foresight of
consequences amounting to intention. A collection of cases spanning over 20 years of
jurisprudential reasoning has drawn current legal thinking to the conclusion that the
concepts are separate, yet closely enough linked that foresight may be taken as
evidence of intention.
After Hyam came R v. Moloney, where Lord Bridge noted:
‘...the first fundamental question to be answered is whether there is
any rule of substantive law that foresight by the accused of one of
those eventualities as a probable consequence of his voluntary act,
where the probability can be defined as exceeding a certain degree,
is equivalent or alternative to the necessary intention...I would
answer...in the negative…’191
This understanding was adopted by Lord Lane C.J in R v. Nedrick:
‘Where the charge is murder and in the rare cases where the simple
direction is not enough, the jury should be directed that they are not
entitled to infer the necessary intention, unless they feel sure that
death or serious bodily harm was a virtual certainty as a result of the
defendant’s acts and that the defendant appreciated that such was the
case.’ 192
The Nedrick direction as to foresight’s role in determining intention was taken on,
much as certain portions of the reasoning in Moloney were in Nedrick, in the House’s
ruling in the case of R v. Woollin. However a crucial difference between the rulings is
evident in the following extract from Lord Steyn’s opinion:
‘… (it has been observed) that the use of the words ‘to infer’ in
(Nedrick) may detract from the clarity of the model direction. I
agree. I would substitute the words ‘to find’...’ 193
Although the substitution of an indefinite article (the idea of inferring intention from
foresight not presupposing intention’s existence from the existence of foresight) for a
definite one appears on its face of little significance, it was later opined in both legal
191
R v. Moloney [1985] AC 905 at 928.
R v. Nedrick [1986] 3 All ER 1 at 3.
193
R v. Woollin [1998] 4 All ER 103 at 114.
192
56
and academic194 writing that the House in Woollin interpreted the Nedrick direction
incorrectly. Rix L.J in the case of R v. Matthews and Alleyne implies this when he
states:
‘...the law has not yet reached a definition of intent in murder in
terms of appreciation of virtual certainty... (We) do not regard
Woollin as yet reaching or laying down a substantive rule of law. On
the contrary, it is clear from the discussion in Woollin as a whole that
Nedrick was derived from existing law...and that the critical
direction in Nedrick was approved, subject to the change of one
word... In these circumstances we think that the judge did go further
than the law as it stands at present permitted him to go...’ 195
The evidentiary approach, that which after R v. Matthews and Alleyne is the current
representation of jurisprudential thought on the issue, allows juries the scope to
conclude that, in cases where a defendant acted in a certain way despite the foreseen
certainty of some undesired result, he did not intend that result. 196 While the legal
definition of intention is arguably settled by legal precedent, the academic meanings
ascribed to the concept are multifarious. Subsection 2.1.1 will tackle the facets of it
relevant to the MSB: the definitions of intention and foresight, and the distinction
between intentional action and acting intentionally.
2.1.1 Intention, Foresight and what it is to Act Intentionally
The MSB, like Davis, claims that intention ‘...is a (mental) state that precedes
action.’197 This state is best described, according to chapter 1 sections 1.3 and 1.3.1,
as a ‘volition’ to do an act and ‘volition’ is understood to subsume two kinds of
intention; bare and complex. Bare intention (BI) describes ‘...an intention to do a
future act’198 and complex intention (CI) is the reason behind one’s bare intention. In
coming to the conclusion that volition is best described as a species of intention, the
MSB distanced itself from the idea that wants, desires, wishes or beliefs could be
described in the same way. Thus, one does not intend what one wants to cause, or
See for example: Wilson W, (1999) ‘Doctrinal Rationality after Woollin’ 62 (3) Modern Law
Review 448; Norrie A, (1999) ‘After Woollin’ Criminal Law Review 532 at pg. 538.
195
R v. Mathews & Alleyne [2003] WL 117062.
196
An interesting discussion of the roles of foresight and intention and the inferences juries can make
from them is presented in Kaveny C M, (2004) ‘Inferring Intention from Foresight’ 120 Law Quarterly
Review 81.
197
Davis L H, Theory of Action (Englewood Cliffs, New Jersey: Prentice-Hall, Inc 1979) at pg. 59.
198
Section 1.3.1 of this work.
194
57
what one desires, wishes or believes will result from one’s actions.199 In seeking to
quench a thirst for example one may want a drink from the nearest glass of water; one
may desire it, wish for it and believe, once consumed, that one’s thirst will be
quenched. One only intends to pursue quenching it however when one picks up the
glass (expressing one’s BI) in order to consume its contents (pursuant to one’s CI).
Hart200 and Duff201 likewise divide intention, but into three kinds over the MSB’s two:
‘bare intentions’ which have not yet been put into practice; ‘intentional actions’ –
doing something intentionally or with the intention to do so; and ‘further intentions’
with which an agent acts – the ends towards which her present actions serve as a
means or preparation. This division is mirrored by the MSB’s reliance on BI and CI.
The former corresponds with Hart and Duff’s similarly named form, and the latter
with their ‘further intention’ and in part with ‘intentional actions’ – for acting with
both the basic and complex intention to do so equates, in the MSB’s understanding, to
an intentional act. The difference between intentional actions and acting intentionally
will be discussed momentarily. It is important however, prior to this, to briefly define
foresight, as both foresight and intention are integral to making sense of the
distinction.
Foresight is taken here, as it is at law, to be entirely separate from intention. Like
intention, the exercise of foresight is the exercise of a mental faculty which may or
may not lead one to performing an action on the basis of what is foreseen. Foresight,
the MSB contends, is also entirely separate from the concept of ‘want’, for one can
foresee an outcome as almost certain to result from a course of action without wanting
that result to come about. This supposition rests heavily on the distinction between an
intentional action and bringing about a result intentionally, to which this section’s
focus now returns.
This view is shared by Donagan A ‘Universals of Metaphysical Realism’, in Loux M J (ed),
Universals and Particulars: Readings in Ontology (Garden City, New York: Doubleday, Anchor
Books 1970). Contrarily Frankfurt H, (1971) ‘Freedom of the Will and the Concept of the Person’ 68
Journal of Philosophy 5 supports the idea that desires are volitions.
200
Hart H L A, ‘Intention and punishment’ in Punishment and Responsibility (Oxford: Oxford
University Press 1968) at pgs. 117-118.
201
Duff R A, (1990) op. cit.
199
58
Intentional acts and acting intentionally are widely understood to be separate, and the
MSB recognises this. The concepts are distinguishable, even though by definition
‘intentionally’ means literally ‘with intention’,202 because the former describes a
mental state and the latter a course of action carried out in pursuance of a mental state.
Hart adds to this by noting that ‘acting intentionally’ implies the bringing about of
some consequence at which the action is aimed.203 Duff explains:
‘I do not intend the expected (foreseen) side effects of my actions,
but I may be said to bring them about intentionally...the concept of
intention both does and does not encompass...side effects; it does in
that they are brought about intentionally; it does not, in that the agent
does not act with the intention of bringing them about.’204
Duff’s words echo the opinions of Buxton205 and Anscombe,206 who distinguish
situations where one is concerned with the ‘immediate or concurrent results’ of one’s
actions and those where ‘an intended action is concerned with...(the) future results of
actions...(with) aim or purpose.’207 This suggests, as Williams points out, ‘...that in
order for an activity to be intended, there must be some kind of plan...and
conversely...an intentional action can be performed without forming a prior intention
or making a plan.’208 To put this into a common medico-legal scenario, a doctor who
plans to relieve his patient’s pain with morphine intends to do so. In giving the
infusion he acts intentionally to relieve his patient’s pain. The side effect of this
infusion may be that the patient dies, and the doctor may be perfectly sure that the
patient will do so, but he does not bring about that death intentionally. As Duff notes
(above), ‘I do not intend the (foreseen) side effects of my actions, but...I may...bring
them about intentionally...’209
The MSB questions though whether one can rightly be said to only foresee the
unintentional consequence when one acts in a fashion that one knows will likely
202
http://wordnetweb.princeton.edu/perl/webwn?s=intentionally (accessed on January 7th 2010 at
14.50pm).
203
Hart H L A, (1968) op. cit.
204
Duff R A, (1990) op. cit., at pgs. 76-80.
205
Buxton R, (1988) ‘Some simple thoughts on intention’ Criminal Law Review 484.
206
Anscombe G E M, ‘The causation of action’ in Ginet G and Shoemaker S (eds), Knowledge and
Mind: Philosophical Essays (Oxford: Oxford University Press 1983).
207
Williams G, (2007) op. cit., at pg. 22.
208
ibid., at pg. 22.
209
Duff R A, (1990) op. cit., at pgs. 76-80.
59
cause it. Indeed if one takes Duff’s phrase at face value it is undeniably circular – ‘I
do not intend the foreseen side effects of my actions...but...I may bring them about
intentionally’210 – as ‘intentionally’ means ‘with intention’. Substituting the word
‘intentionally’ for its dictionary definition the quotation reads as follows: ‘I do not
intend the foreseen side effects of my actions...but I may bring them about with
intention.’ It appears on this understanding that one indeed intends to cause the
unintended consequence because one brings them about with intention. The impact of
this contention on the DDE will be explored in section 2.3.2. With the MSB’s
understanding of intention, foresight and the intentional/intentionally distinction set
out, attention can now turn to the DDE itself.
2.2 Double effect
The DDE is favoured by proponents of the Sanctity-of-Life Principle, who have
traditionally appealed to it in order to maintain the absolute prohibition on the
intentional termination of human life in situations which, to Kuhse ‘...reduce (it: the
SLP) to absurdity because (it is) so obviously contrary (to competing)
values...including the value of human life.’211 According to Baroness Warnock, the
DDE is ‘…an absurdly Jesuitical doctrine…’212 It finds its moral genesis in the work
of Aquinas, who sought to delineate circumstances where it is acceptable for agents to
bring about or allow death to occur as a secondary effect of an action or omission that
is morally good. The DDE’s grounds have been framed many times, the example
below drawn from the New Catholic Encyclopaedia:213
1. The act itself must be morally good, or at least indifferent.
2. The agent may not positively will the bad effect but may permit it. If
he could attain the good effect without the bad effect he should do
so. The bad effect is sometimes said to be indirectly voluntary.
3. The good effect must flow from the action at least as immediately (in
order of causality, though not necessarily in the order of time) as the
210
ibid.
Kuhse H, (1987) op. cit., at pg. 90.
212
An interview with Baroness Warnock conducted on 19 th November 2007 by Edwards. J.
213
Catholic University of America, New Catholic Encyclopaedia, vol. 4 (New York: McGraw Hill,
1976) at pgs. 1020-22. See also Kendall C C, (2000) ‘A double dose of double effect’ 26 (3) Journal of
Medical Ethics 204; Shaw A B, (2002) ‘Two challenges to the double effect doctrine: euthanasia and
abortion’ 28 (2) Journal of Medical Ethics 102; Keown J, (2000) ‘Beyond Bland: a critique of the
BMA guidance on withholding medical treatment’ 20 (1) Legal Studies 66.
211
60
bad effect. In other words, the good effect must be produced directly
by the action, not by the bad effect. Otherwise the agent would be
using a bad means to a good end, which is never allowed.
4. The good effect must be sufficiently desirable to compensate for the
allowing of the bad effect. In forming this decision many factors
must be weighed and compared, with care and prudence
proportionate to the importance of the case.
The doctrine therefore propounds that a bad effect (the death of a patient in the
medical context) is sometimes permitted, though it cannot be intended by the person
causing it.
Philosophical interest in the DDE is divided between those with deontological
opinions214 and those who follow consequentialism.215 Deontologically speaking the
DDE’s central distinction is essential to discussing the implications of agency and its
impact on both the general issue of killing, and on specific kinds of killing; abortion,
euthanasia and so forth. On the other hand, consequentialists like Rachels216 and
Tooley217 argue that the DDE is used to allow morally unacceptable consequences
while never allowing a doctor to directly end a patient’s life. This moralistic quirk
condones a greater level of patient suffering, based on a distinction which is, to
Kuhse,218 Rachels219 and the MSB, ‘morally irrelevant’.
The critique surrounding the DDE is not only restricted to its possible effects and the
questionable nature of the distinctions it employs. Foster et al220 question the very
existence of the doctrine at law, and Huxtable221 cites evidence that the majority of
deaths occasioned in situations where the DDE would apply are actually caused by
sedatives, not pain killing medication. Since discussion of the doctrine is predicated
214
Deontologists judge the morality of an action based on its adherence to a rule or set of rules. See for
example: Devine P E, The Ethics of Homicide, (Ithaca: Cornell University Press, 1978) at pgs. 106-26.
215
Consequentialism holds that the consequences of a particular action or actions form the basis for any
valid moral judgement about that action. Thus, morally right actions are morally right because they
have good consequences. See for example: Rachels J, (1975) ‘Active and passive euthanasia’ 292 New
England Journal of Medicine 78.
216
ibid.
217
Tooley M, ‘An Irrelevant Consideration: Killing versus Letting Die’ in Steinbock B and Norcross A
(eds), Killing and Letting Die (New York: Fordham University Press 1994) at pgs. 56-62.
218
Kuhse H, (1987) op. cit.
219
Rachels J, (1975) op. cit.
220
Foster C, Herring J, Melham K and Hope T, (2011) ‘The Double Effect Effect’20 Cambridge
Quarterly of Healthcare Ethics 56.
221
Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: RoutledgeCavendish 2007).
61
on its use in cases where death as occurred as a side effect of the provision of pain
killers, he questions if physicians have any need of it. This issue will be raised again
in section 2.3.1 so discussion of it over and above this formative mention is not
necessary here. Foster et al's query as to the doctrine's requires addressing however,
for it would be remiss for this work to propound a theory concerning it without
ascertaining its nature first.
The case of R v. Adams222 is that which is most often said to have brought the DDE
into English law.223 In it, Lord Devlin directed the jury as follows:
‘There has been a good deal of discussion about the circumstances in
which a doctor might be justified in giving drugs which would
shorten life in cases of severe pain. It is my duty to tell you that the
law knows no special defence of this character. But that does not
mean that a doctor aiding the sick or the dying has to calculate in
minutes or hours, or even perhaps in days or weeks, the effect on a
patient's life of the medicine which he administers. If the first
purpose of medicine, the restoration of health can no longer be
achieved there is still much for the doctor to do, and he is entitled to
do all that is proper and necessary to relieve pain and suffering, even
if the measures he takes may incidentally shorten life.’224
Even after being advised that regardless of the victim’s health and the motive225 of the
accused, the law would treat as murder any action which intended to kill and did in
fact kill, the jury acquitted Dr Adams of all charges. What is not clear from this case
though is how, if at all, the particulars of the DDE as defined above were utilised in
reaching this conclusion. Kennedy and Grubb appear to believe that this answer is
quite obvious, claiming that Adams ‘injected’226 the doctrine into English law. They
opine:
‘It (the doctrine) seems to say that if an act may have two effects
and the actor desires only one of them, which is considered a good
effect, then he should be regarded as blameless even though his act
also produces a bad effect. The words "primary" and "secondary"
222
R v. Adams [1957] Crim. L.R. 365.
Williams G, (2007) op. cit. at pg. 34.
224
ibid.
225
See further section 1.4.1 of chapter 1 of this work on motive.
226
Foster C, Herring J, Melham K and Hope T, (2011) op. cit at pg. 62.
223
62
are used to describe the intention concerning the good and the bad
effect.’227
Foster et al offer a worthy critique of this conclusion however, which the MSB agrees
with. Nowhere in his judgement does Lord Devlin use the phrase ‘double effect’.
Nowhere does he refer to ‘primary’ and ‘secondary’ intention, and nowhere is the
need for either the good effect alone being that which is intended, or for there to be a
proportionately grave reason for allowing the bad effect to occur mentioned in the
judgement.228 Claiming therefore that this case marks the doctrine's inception into
English law is best described as ‘...reading far too much into a rather amorphous
direction to the jury.’229
Just as its presence was implied though not explicitly made clear in the Adams case,
the DDE has been scantily referenced by name in case law. Lord Bingham refers to
the doctrine in the case of Pretty,230 but does little more than state broad principles
and note that the distinction between intention and foresight is central to its use.
The case of Re A231 provides the only really detailed analysis of its possible
application to the conjoined twins, Jodie and Mary, but did little outside of clarify the
doctrine's parameters and draw to the conclusion that it would not, in fact, absolve the
doctors involved in the case of guilt if their actions ended in the death of the weaker
twin.232 Outside of these cases however there are no explicit references to the doctrine
itself. Perhaps, in the face of this conclusion, it is best to think of the doctrine as a
kind of reasoning rather than an actual legal test applied in a particular kind of case.233
227
Kennedy I and Grubb A, Medical Law: Text with Materials (2nd edn, Oxford: Oxford University
Press 1994) at pg. 1206.
228
Foster C, Herring J, Melham K and Hope T, (2011) op. cit at pg. 62.
229
ibid, at pg. 62.
230
R (on the application of Pretty) v. DPP [2001] UKHL 61; [2001] 3 WLR 1598 at. 55.
231
Re A (children) [2000] 3 FCR 577, [2001] Fam Law 18, [2001] 2 WLR 480, [2000] 3 FCR 577;
[2001] Fam 14.
232
Robert Walker LJ dissented on this conclusion, feeling that Mary, the weaker twin, would benefit
from the separation because her bodily integrity and autonomy would be restored as a consequence of
it. ibid., at. 684-5.
233
Cavanaugh T A, Double-Effect Reasoning: Doing Good and Avoiding Evil (Oxford: Clarendon
Press 2006).
63
There are, after all, numerous examples of ‘double effect’ cases that have been
decided based on one or more of the principles that the DDE subsumes.234
Take the case of R v. Carr235 for example. Dr Carr was charged with the attempted
murder of his patient, who died after he administered a large dose of Phenobarbitone.
Compelling evidence showed the patient to have been suffering terribly with
inoperable lung cancer and that he had repeatedly requested that his inevitable death
be hastened. As in Adams, Dr Carr was acquitted but in the course of summing up
Mars-Jones J had this to say:
‘However gravely ill a man may be...he is entitled in our law to
every hour...that God has granted him. That hour or hours may be
the most precious and most important hours of a man’s life. There
may be business to transact, gifts to be given, forgiveness to be
made, 101 bits of unfinished business which have to be
concluded.’236
This case shows perhaps the loosest construction of the doctrine seen in the cases in
which it has been used. As was noted above, in order for the DDE to function, the
doctor’s intention must have been to alleviate the patient’s pain and suffering, not to
kill him. Carr it seems, breaks this rule given that Phenobarbitone, a Barbiturate, has
no known or recognisable analgesic effects and yet the defendant was still acquitted.
This is a precedent seemingly ignored in the R v. Cox237 case, detailed later.
R v. Arthur238 further advances the precedent for acquittal in cases concerning double
effect. Doctor Arthur was charged with the murder of a neonate with Down’s
syndrome. The child had been rejected by its parents who instructed Arthur that they
did not want the baby to survive. A note was entered into the child’s records for
‘nursing care only’ and he was provided with strong painkillers, allegedly to ease his
distress. He died three days later and Arthur was brought to trial. Evidence of other
congenital defects present in the deceased was advanced and the charges facing
234
For ease of reference 'double effect reasoning', 'double effect' and 'DDE' refer to the same thing in
this work: the doctrine as understood by the majority of commentators.
235
R v. Carr, The Sunday Times, 30 November 1986 at pg. 1.
236
ibid., at pg. 1.
237
R v. Cox (1992) 12 BMLR 38.
238
R v. Arthur (1993) 12 BMLR 1.
64
Arthur were reduced from murder to attempted murder. Acquittal followed, but as the
case of R v. Cox239 came to show, it is not always a certainty.
Dr Nigel Cox was charged with the murder of his patient, a Mrs Lillian Boyes. Mrs
Boyes suffered from arthritis and, like the patient in Carr, was in terrible pain because
of her illness and repeatedly asked for her death to be hastened. Having acceded to her
repeated requests Dr Cox was taken to trial and, though members of the jury were
reported to have wept as they delivered their verdict, he was convicted of attempted
murder. The original charge of murder was reduced due to an evidential inconsistency
regarding the precise cause of Mrs Boyes’ death. The DDE failed Cox because the
drug he had administered, Potassium Chloride, had no analgesic properties. Therefore
the second clause of the test, that death is not a means through which pain relief is
achieved, could not be satisfied.
The avoidance of either moral or legal culpability for a bad consequence occasioned
by a good act is as central to the DDE as the distinction between intention and
foresight. In almost all cases it is death that is said to be the foreseen but not intended
outcome of a course of action, and this is so irrespective of the fact that death will
occur regardless of whether it is intended or foreseen. The DDE also assumes that
death, however it occurs and whether it is requested or not, is always a bad thing. This
fails to take account of both its biological certainty and, in the case of a requested
death, its desirability to the one asking for it.240
Surely, Mclean241 observes, the decision as to what is ‘right’ in terms of treatment,
even treatment which will result in a hastened death, rests in the lap of the cognisant
patient. According to the case of Re T:
‘…an adult patient who...suffers no mental incapacity has an
absolute right to consent to medical treatment, to refuse it or to
choose an alternative treatment.’242
239
R v. Cox (1992) 12 BMLR 38.
Mclean S A M, Assisted Dying: reflections on the need for law reform (Abingdon: RoutledgeCavendish 2007).
241
ibid., at pg. 108.
242
Re T (adult) (refusal of medical treatment) [1992] 4 All ER 649, (1992) 9 BMLR 46, (CA).
240
65
Credence is given to this claim by the case of Re C.243 The patient, a 68 year old
paranoid schizophrenic developed gangrene in a foot while being detained in
Broadmoor psychiatric hospital. On removal to a general hospital, a consultant
concluded that he had only a 15% chance of survival if the leg was not amputated
below the knee. The patient refused, the hospital took the question of his autonomy to
the court and C applied for an injunction restraining the hospital from operating on
him without his express written consent. Thorpe J held that C was entitled to refuse
treatment and noted that capacity was to be determined by the answer to the following
question: ‘has the capacity of the patient been so reduced that he did not sufficiently
understand the nature, purpose and effects of the proffered medical treatment?’244
With those facts in mind the question remains, if C, a man whose mental competence
was put to the courts, was entitled to determine how he should or should not be
treated, why is the perfectly competent patient who asks for assistance (assistance
which may well have the same effect upon him or her as C’s refusal) unable to receive
it? The answer is directly relevant to the distinction between acting and omitting to
act;245 a stance that section 1.4.1 of chapter 1 endeavoured to prove indefensible.
A crucial link between the DDE, the MSB and killing and letting die is apparent here.
If one acts to end a life, one feels morally closer to the results of one’s actions than if
the life ended as a result of an omission to act or if the death was only foreseen.246
Thus, in the case of Re C, a refusal of consent to treatment, amounting legally to an
omission on the part of the medical staff, would leave them, if C died as a result,
guilty only of following the express wishes of their patient. This circumstance is a
great deal more comfortable for the conscientious physician than one where his
actions directly precipitate death. Take for example the opinion of ‘Doctor 10’, who,
when asked about her feelings regarding removing a ventilator from a patient replied:
243
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; [1994] 1 All ER 819.
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; [1994] 1 All ER 819.
245
It is also true that the distinction between requesting and refusing treatment is tangentially relevant
here. This chapter lacks the necessary scope for elaboration required to properly explore this area. The
cases of R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273; Glass v.
United Kingdom (Application No. 61827/00) (2) and Ms B v. An NHS Hospital Trust [2002] EWHC
429 (Fam) are those central to the distinction, and will be discussed later in chapter 3, section 3.2.1.
246
Kuhse H, (1987) op. cit.
244
66
‘...I think if you’d asked me that 10 or 15 years ago I would have
said yes...but...I’m not sure if I could personally switch it off...so...I
sit uncomfortably because I can agree and say yes that’s acceptable
(to remove a ventilator at the request of a competent patient like Ms
B) but then I’d want someone else to do it... I don’t feel comfortable
at the moment about being the person actually doing the action...’247
It appears that, as Shaw alleges ‘…the double effect (and arguably the killing/letting
die) distinction is psychologically relevant to the doctor.’248 He can hope, when death
is only a side effect of his action, or when he is omitting, that it may not follow, no
matter how remote the chance. However when he intends death and causes it as a
means to an end to alleviate suffering, he must be sure it follows. This idea of
‘deception for the sake of conscience’ is supported by Gillon who states that:
‘...it seems to be simply self-deceiving…to say one does not intend
it…We cannot get off the moral hook by saying, however truthfully,
that although we foresaw…a bad result, we did not intend it…(that
we) only (intended) the good result.’ 249
Huxley’s Brave New World250 treads similar ground, though makes no mention of the
DDE. In his writing Huxley disavows the compatibility of happiness and truth, and
provides his characters with a drug, ‘Soma’, which plunges them into a state of
blissful though false happiness at the expense of the truth of their situation. Gillon’s
‘deception for the sake of conscience’ appears to describe a similar effect through the
use of the DDE, and the MSB implies such a parity here. The truth of the physicians’
situation is unpalatable to them, and so they deceive themselves or allow themselves
to be deceived, relying on the concept of foresight to save themselves from that
unpalatable truth.
Now that the DDE’s workings have been explored, discussion can move on to the
MSB and how it impacts on the DDE.
An interview with ‘Doctor 10’ by Edwards. J conducted on 18 th March 2010.
Shaw A B, (2002) ‘Two challenges to the double effect doctrine: euthanasia and abortion’ 28 (2)
Journal of Medical Ethics 102 at pg. 103.
249
Gillon R, Philosophical Medical Ethics (Chichester: John Wiley & Sons 1999) at pg. 137.
250
Huxley A, Brave New World (London: HarperCollins Publishers 1994).
247
248
67
2.3 Double Effect and the Moral Step Back
To briefly restate the protestations made by the MSB, it is alleged that the DDE
allows for the shifting of blame for the results of one’s actions251 by proclaiming that
the patient’s death was only foreseen. This allows practitioners to take a ‘moral step
back’ from that death because direct, unfettered involvement in the procurement of it
would line them up for legal sanctions. While this allowance is not a negative thing,
relying on a mechanism as flawed as the DDE to effect it is felt both illogical and
dangerous; illogical because the theory itself is based on counterintuitive thinking,
and dangerous because, by allowing the DDE’s use, acts which would otherwise not
be justifiable are permitted.
The MSB’s argument will be presented in two separate sections, the first of which
provides the background to that following it. It will detail the assertions of DDE
supporters regarding the likelihood of death being brought about as a consequence of
the proper application of painkilling medications in cases where the DDE is likely to
be relied upon. Commentators like Sykes and Thorns252 state that the fact that there is
no certainty of death resulting from the provision of steadily raised doses of morphine
means that any resultant deaths must be merely foreseen and not directly intended as
the MSB argues. Though this fact is recognised as accurate, the MSB notes that, while
the likelihood of certain events occurring may have an effect on their moral relevance,
this effect ‘can be no comfort to adherents to the doctrine of double effect because it
accords more significance to intentions not probabilities.’253
The second section will focus on the physician’s intention, foresight and wants
regarding the management of his patient. Conventionally the DDE states that it is the
amelioration of pain alone that the physician intends, not the death of his patient. He
is said to act intentionally in pursuing the desired end, without the intention to procure
the unwanted one. The MSB counters this assertion by claiming:
251
Blame that in cases of PAS and euthanasia should not be put upon practitioners at all.
Sykes N and Thorns A, (2003) ‘Sedative use in the last week of life and the implications for end-oflife decision making’ 163 (3) Archives of Internal Medicine 341.
253
Young R, Medically Assisted Death (Cambridge: Cambridge University Press 2007) at pg. 108.
252
68
1.
Firstly, that the distinction between intentional action and acting
intentionally is circular and purely semantic in nature.
2. And secondly that, while the distinction between intention and
foresight is, at law, correct, it cannot be maintained in a situation
where a person acts to achieve the foreseen but unwanted end.254
2.3.1 Pain relief, certain death and uncertain consequences
Huxtable has, on numerous occasions, raised a voice of dissent regarding the
application of the DDE in cases where physicians have used painkilling drugs in the
management of their patients.255 His work can be utilised to provide definitions of the
concepts under discussion:
‘...judges have tended to employ words like ‘morphine’,
‘diamorphine’, ‘heroin’ and ‘opioid’ without explaining the
meanings of, and relationships between, the terms. Starting with
morphine, this is an opiate analgesic (painkiller), that is, it is
obtained from opium, the juice secreted by poppy seeds. Opioid
drugs act on the body’s opioid receptors, and ‘opioid’ is an umbrella
term that includes opiates and synthetic, or semi-synthetic,
morphine-like drugs. Morphine itself is viewed as the most usefully
versatile analgesic for addressing both moderate and severe pain.
However, its side effects include nausea, vomiting and respiratory
depression. Although the latter is less likely to occur in patients with
chronic pain, since pain opposes this potential to slow or stop
breathing, morphine should nevertheless be used cautiously in
patients suffering from chest disease... ‘Heroin’ is actually another
name for ‘diamorphine’, which is a more soluble and more potent
opioid than morphine. Diamorphine has the same effects (and side
effects) as morphine, and has great utility in caring for people with
terminal illness, since effective dosages can be delivered in smaller
volumes, thus providing more comfortable injections in the
emaciated patient.’256
Based on a panoply of evidence regarding the use and effects of opioids, Huxtable
states that ‘...the (need for) double effect simply will not be present in cases where
pain is managed...in accordance with accepted standards of practice.’257 The findings
of Sykes and Thorns further support this hypothesis. In their empirical study of 237
254
See section 1 of chapter 1 of this work.
Huxtable R, (2007) op cit.; Forbes K and Huxtable R, (2006) ‘Editorial: Clarifying the data on
double effect’ 20 (4) Palliative Medicine 395.
256
Huxtable R, (2007) ibid., at pg. 89.
257
ibid., at pg. 91.
255
69
patients, only two were felt to have had their lives shortened as a consequence of the
management decisions their physicians made, and those by the use of sedatives, not
opioid based pain relief.258 Huxtable therefore asserts that, in the majority of cases,
conscientious physicians have no need for the DDE as it is sedative medication, not
the opioids used in practices like pyramid painkilling that are liable to hasten death. 259
The clarification necessitated by these findings is this: the MSB’s claims in section
2.3.2 apply irrespective of the kind of drug employed in the management of patients’
conditions. The discussion is framed in terms of the use of opioids and pain relief
because the majority of legal cases in the area concern their use or misuse.
It is recognised from the outset that the DDE is not applicable in every case where a
physician employs opiates in treating a patient’s pain. The circumstances
necessitating its being in the physician’s ‘back pocket’260 are those which surrounded
Dr Cox,261 Dr Arthur262 and Dr Adams263 and it is situations akin to these that provide
the context for the coming discussion, where a physician, faced with a patient in the
last stage of his life, takes measures in the knowledge264 that the patient’s death is at
least highly likely to occur in the near future. Whether or not the drugs that doctor
employs may hasten the death is the question to which this discussion now turns.
When used properly opioids, like all forms of medication, are safe and for the most
part (discounting side effects) beneficial to those to whom they are prescribed.
Commentators like Sykes and Thorns,265 MacDonald and Roy266 and Hanks and
Twycross267 all attest to the safety of morphine and diamorphine when they are used
258
Sykes N and Thorns A, (2003) op. cit.
Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: RoutledgeCavendish 2007) at pg. 91.
260
Forbes K and Huxtable R, (2006) ‘Editorial: Clarifying the data on double effect’ 20 (4) Palliative
Medicine 395.
261
R v. Cox (1992) 12 BMLR 38.
262
R v. Arthur (1993) 12 BMLR 1.
263
R v. Adams [1957] Crim. L.R. 365.
264
All references to ‘knowledge’ in this thesis are made on the understanding that the word describes a
mental state. One can have knowledge, use it and make choices based on it. Statements of probability
however are not implied by the use of the word ‘knowledge’.
265
Sykes N and Thorns A, (2003) op. cit.
266
MacDonald N and Roy D J, ‘Ethical Issues in Palliative Care’, in Doyle D, Hanks G W C and
MacDonald N (eds), Oxford Textbook of Palliative Medicine (2nd edn Oxford: Oxford University Press
1999) at pgs. 97-138.
267
Hanks G W and Twycross R G, (1984) ‘Letter: Pain, the physiological antagonist of opioid
analgesics’ The Lancet 30 June: at pgs. 1477-1478.
259
70
in line with accepted practices. Only negligible danger is attributed to their use in
recognised medical scenarios and the MSB does not dispute this. When used
improperly however, opioid medication has never been doubted in its potential to be
deadly. The actions of Francis Inglis,268 who took it upon herself to kill her disabled
son with injections of Heroin, only serve to make the danger more clear.
What though of situations where, as part of proper medical practice, the dose of
medication is steadily raised so that it is not ‘chasing the pain’ 269 but effectively
ameliorating it? Pyramid painkilling is common in palliative care and is that most
likely270 to require recourse to the DDE because of the proximity of the patient’s
death to the provision of, what may be to an unaccustomed patient, a lethal dose of
medication.271 Stauch, Wheat and Tingle acknowledge this possibility in the following
example:
‘Imagine a gravelly ill patient in the last stages of terminal cancer.
The patient is in pain and only a substantial dose of morphine will
relieve the pain. However, such a large dose will also hasten the
patient’s death (emphasis added).’272
Whether or not the doctrine of beneficence holds that the doctor’s only intention is to
do good by providing the pain relief in such a circumstance, the acknowledgement of
death’s seeming inevitability cannot be overlooked. Harris is of the same mind
regarding the distinction ‘between (the) effects, side effects and double effects’ of
such medication, and states:
‘What matters...is how our decisions and action affect the world, not
whether that effect is direct or indirect...I should emphasise that there
is a perfectly respectable everyday use of the term ‘side effects’ and
I am not denying that for some purposes it may be useful to
distinguish between the direct effects and the side effects of a drug
or a course of treatment...(however) this distinction is entirely
without moral significance and cannot be used to limit our
responsibility for bringing about those side effects.’273
268
http://www.dailymail.co.uk/news/article-1244731/Frances-Inglis-guilty-murder.html (accessed on
24th September 2010 at 14.57pm).
269
An interview with ‘Doctor 10’ by Edwards. J conducted on 18 th March 2010.
270
Barring actions like those of Dr Cox.
271
An interview with ‘Doctor 6’ by Edwards J conducted on 14 th September 2009.
272
Stauch M, Tingle J and Wheat K, Text, Cases & Materials on Medical Law (3rd edn London:
Routledge-Cavendish 2006) at pg. 25.
273
Harris J, The Value of Life (London: Routledge & Kegan Paul 1985) at pg. 45.
71
Whether or not the physician’s intervention caused death must be assessed in each
individual case, though there is no doubt that in any such circumstance the doctor
involved would be aware of the risk posed to his patient through his thoroughly
blameless ‘chasing’ of the pain. Take for example the experience of ‘Doctor 6’ who,
when asked whether he would stop giving a diamorphine infusion if the dosage was
such that death and the therapeutic effects of pain relief were likely side by side,
replied:
‘You realise the therapeutic effect will actually kill the patient...I
wouldn’t have any problem with that at all. If you’ve got a patient
who’s in pain you have to increase the dose. And if the by-product of
that is the patient may well die, I wouldn’t have a problem with
that.’274
‘Doctor 7’ was of a similar opinion regarding the use of pain relief and the possible
adverse effects it may have on a patient’s longevity:
‘It’s...usually the sort of excuse is that the patient has worsening
pain, worsening symptoms. And...they’re semi-conscious and
agitated. And...so people want everything to be calm and peaceful in
this situation so they increase the dose until the patient is calm...the
side effect of that is they stop breathing and die...and we all know
it’s going to happen.’275
When questioned further regarding this known-of effect being a foreseen but
unintended consequence of increasing the dose to keep the patient comfortable he
replied: ‘...everybody knows it’s going to happen, so you’re doing the same things at
the same time.’276 These experiences appear to run in opposition to the opinions
expressed by Sykes and Thorns,277 MacDonald and Roy278 and Hanks and Twycross279
regarding the safety of properly used opiates. In both interviews the participants were
referencing accepted medical procedures and patient management practices, and in
An interview with ‘Doctor 6’ by Edwards J conducted on 14 th September 2009.
An interview with ‘Doctor 7’ by Edwards J conducted on 21st October 2009.
276
ibid.
277
Sykes N and Thorns A, (2003) op. cit.
278
MacDonald N and Roy D J, ‘Ethical Issues in Palliative Care’, in Doyle D, Hanks G W C and
MacDonald N (eds), Oxford Textbook of Palliative Medicine, (2nd edn Oxford: Oxford University Press
1998) at pgs. 97-138.
279
Hanks G W and Twycross R G, (1984) op. cit.
274
275
72
both, death was an openly acknowledged, if obviously unwanted, possibility. Kuhse
provides further recognition of this:
‘It would seem...that in many cases the stage will be reached where a
doctor foresees that a particular dosage which is sufficiently large to
alleviate the patient’s pain will also positively cause the patient’s
death.’280
It would be reckless to conclude on the basis of the evidence presented here that
death by opiate intoxication is a certainty in every case where proper medical practice
prescribes their use in palliating symptoms. However neither the MSB nor the DDE
requires that death be a certainty. Foresight of death being a very likely consequence
– as Doctors 6 and 7 attested – is all that is required and that, in the knowledge that
opiates can cause death if given in high enough doses, appears to be knowledge with
which physicians in a position to use the DDE work on a daily basis. Discussion can
now turn to the MSB’s main arguments regarding the DDE.
2.3.2 Intention, Foresight and the effect of Action
As section 1.3.1 in chapter 1 and section 2.1 in the present chapter have shown, the
MSB understands intention and foresight to be complementary but completely
separate mental states. It does not however leave the distinction between intentional
action and acting intentionally unquestioned. The impact of this questioning and the
MSB’s conclusions regarding it will be discussed later in this section.
To begin deconstructing the intention/foresight distinction it is important to
understand the impact semantics have on the perception of actions and chains of
events. A simple alteration made to a description can affect the understanding of
when death is caused directly (and therefore intentionally), and when it is a ‘mere’
side effect. This changeability is the DDE’s primary weakness, and is evidenced in
the following scenario from Anscombe’s work:
‘Imagine a potholer stuck with people behind him and water rising to
drown them. And suppose two cases: in one he can be blown up; in
280
Kuhse H, (1987) op. cit., at pg. 101.
73
the other a rock can be moved to open another escape route, but it
will crush him…there might be people among them who…would
move the rock, though they would not blow up the man because that
would be choosing his death as a means of escape…they thus show
themselves as people who will absolutely reject any policy making
the death of innocent people a means or an end.’281
The only way this scenario could possibly be plausible, Harris says, is if it is
accepted that blowing up the potholer could only be described as killing him, whereas
moving the rock is a ‘complete action description’ of which killing him is a mere side
effect. If the wording is adjusted slightly it is clear that the impression of which
course of action involves direct killing and which involves death as a side effect is
different:
‘Suppose two cases: in one he is crushed leaving room to escape; in
the other a hole can be blown in the rock at its weakest point but this
will dismember the potholer…’282
According to this amended example the potholer is either crushed to provide a means
of escape, or dies as a consequence of actions taken to procure a means of escape.
Though the result of both scenarios is the same, the former appears to be an instance
of direct intentional killing and the latter one of indirect unintentional killing. This
outcome is the reverse of that of the unedited version of Anscombe’s example and
evidences as a result the abovementioned weakness of the DDE. With a simple
semantic adjustment the perceived consequences of a chain of events can be altered,
and with this the moral imperative to either laud (in the case of indirect unintentional
killing) or punish those performing them (where direct intentional killing is
concerned).
A similar example can be drawn from the writings of Geddes, who argues, contrary to
traditional Catholic teaching,283 that a doctor who crushes the skull of a foetus in
Anscombe G E M, (1982) ‘Medallist’s Address: Action, Intention and ‘Double Effect’, in
Proceedings of the American Catholic Philosophical Association, vol. 56, Washington, D.C.: American
Catholic Philosophical Association at pgs. 12-25; reprinted in Woodward P A (ed), The Doctrine of
Double Effect: Philosophers Debate a Controversial Moral Principle (Notre Dame, Indiana:
University of Notre Dame Press 2001).
282
Harris J, (1985) op. cit., at pg. 44.
283
The prohibition on the crushing of an unborn child’s skull, even in cases where both mother and
child will die is noted in the Holy Decree, May, 1884. It is reiterated in the Holy Office Decree of 19
281
74
order to remove it from the womb and thus saves the woman’s life is not directly (and
therefore intentionally) killing the unborn child:
‘The surgeon must remove the child from the mother’s womb; the
dimensions of the child are such that if the surgeon attempts to
remove it without changes to these dimensions the mother will
surely die. He therefore alters these dimensions in certain ways. A
necessary but quite unneeded and unwanted consequence of this
procedure is that the child dies. Clearly, the death of the child does
not enter into consideration as a means to anything. So, in the
relevant sense, the killing of the child was not intended by the
surgeon, either as an end in itself or as a means to an end. Hence, it
is a mistake to think that the principle concerning the killing of the
innocent applies to (this) sort of killing...’284
How else though could this action be described other than an intentional termination
of life? Indeed, how else could the death of the potholer in the above example? As
Kuhse aptly points out, one could go so far in re-describing an action – making sure
death was neither its end nor its means – that an intentional decapitation could be
seen as not being an intentional termination of life.285 Even Duff, a proponent of the
DDE, proclaims that Geddes’ example generates ‘...sophistical and unacceptable
conclusions’286 because it effectively nullifies the absolutist moral principles the DDE
exists to protect – the prohibition on intentional killing most obviously.
Duff makes his own attempt at framing a scenario consummate to the DDE with
reference to Captain Oates and his desertion of his comrades so that they might live
through the blizzard that engulfed them.287 In recounting the tale Duff postulates that
if Oates had shot himself, instead of walking out into the blizzard to face his certain
death, this would have been an instance of the intentional termination of life and
would have therefore fallen foul of the prohibition on intentional killing. However
merely walking out into the storm was, according to Duff, not an instance of
prohibited intentional (self) killing. This is so irrespective of the fact that death was
August 1889, and there cited as a direct attack upon the life of the foetus. These references were found
in Kuhse’s work; Kuhse H, (1987) op. cit., at pg. 98.
284
Geddes L, (1973) ‘On the Intrinsic Wrongness of Killing Innocent People’ 33 (3) Analysis 94 at pg.
95.
285
Kuhse H, (1987) op. cit., at pg. 98.
286
Duff R A, (1976) ‘Absolute Principles and Double Effect’ 36 Analysis 78 at pg. 68.
287
ibid., at pgs. 78-79.
75
equally certain in either case, and even if ‘the end aimed at is the same.’288 The
distinguishing feature between the scenarios, Duff notes, is the means by which death
was procured:
‘...in one case (Captain Oates’ comrades) will go on because he is
dead and he intentionally kills himself, by shooting, as a means to
this. But in the other case...he intends them to go on because they
realise that he has chosen to withdraw from the group; and to
achieve this, he needs simply to walk away.
Of course, he knows, and they know, that he will certainly
die but this is now a consequence, not a part, of his intentional
action. It is separable from it, in a way in which his death is not
separable from shooting himself. This separation – this logical gap
between what he intentionally does and his consequence death – is
important, not because it allows him or them to hope that he will in
fact survive (they had no such hope), but because it shows that his
intention, and attention, need in no way be directed toward his death:
the rest is up to God.’289
The sophistry in this example, Kuhse290 proclaims, is as evident as that in Geddes’.
Harris too felt the argument for a differential in means (the means Oates went to in
procuring his demise) impacting on the moral weight of an actor’s actions, in terms of
the DDE and its precepts regarding the intentional and non-intentional termination of
life, lacked weight. He wrote in his work Violence and Responsibility:
‘Had Oates lacked the strength to remove himself from the group
physically but possessed a revolver, he might have equally
effectively disassociated himself by putting the barrel in his mouth,
pulling the trigger and thinking ‘whether or not I die is up to God.’291
Duff, despite his work on the Oates case, freely admits that there are issues which are
almost impossible to adequately tackle using the DDE. He gives the example of a
man who throws himself onto a grenade to save his friends. The man sacrificing
himself is not generally regarded as doing so intentionally in this instance. 292 But,
Duff concedes, if this is true it cannot be said that a person who throws another on top
of the grenade is guilty of murder, or of intentionally killing him.
288
ibid., at pg. 78.
ibid., at pg. 78-79.
290
Kuhse H, (1987) op. cit., at pgs. 98-99.
291
Harris J, Violence and Responsibility (London: Routledge & Kegan Paul 1980) at pg. 54.
292
Devine P E, The Ethics of Homicide (Indiana: University of Notre Dame Press 1990) at pg. 123.
289
76
Precisely how ‘intentional action’ is defined then is a matter of great debate. Though
numerous academics have mulled over this quandary, Fried,293 Devine294 and
Finnis295 to name three, none have truly given an encompassing answer to it. Foot296
and her proposals regarding ‘closeness’ require exploration however, and provide a
fitting link between this more general discussion and the MSB’s main argument
regarding intention and foresight in cases where the DDE is used.
In stipulating what it is that makes an action intentional Foot notes ‘...anything very
close to what we are literally aiming at counts as if part of our aim.’ 297 Her thesis can
be applied to the examples previously given in this section; crushing an unborn
child’s skull and crushing the potholer to free his trapped friends. These, Foot holds,
must be regarded as instances of the intentional termination of life because, even if
they could be broken down into two acts (crushing the skull and death; crushing the
potholer and death), they would be ‘much too close for an application of the doctrine
of double effect.’298 In these circumstances, crushing the skull is killing the foetus,
and crushing the potholer is killing him. The action and the action’s consequence
cannot be distinguished.
Foot’s assertions are lent support by Anscombe,299 Davidson300 and by the ‘identity
thesis’ of Alvin Goldman, to which the MSB subscribes in part.301 These theses equate
one’s actions with the consequences they bring about. Thus, if an agent does X (kills
the patient) by doing Y (giving a potentially lethal dose of opiates), then his X-ing is
identical to his Y-ing, since the physician kills the patient by giving him a lethal dose
of medication. The same formula can be used to demonstrate another of the effects of
Y-ing: ameliorating pain. The formula now looks like this: the agent does X
293
Fried C, Right and Wrong (Cambridge, Massachusetts: Harvard University Press 1978) at pg. 24.
Devine P E, (1990) op. cit.
295
Finnis J, (1973) ‘The Rights and Wrongs of Abortion: A Reply to Judith Thompson’ 2 (2)
Philosophy and Public Affairs 143.
296
Foot P, ‘The Problem of Abortion and the Doctrine of Double Effect.’ in Steinbock B (ed.), Killing
and Letting Die (Englewood Cliffs: Prentice-Hall 1980) at pgs. 156-165.
297
ibid., at pg. 158.
298
ibid., at pgs. 157-158.
299
Anscombe G E M, Intention (Ithaca, N.Y.: Cornell University Press 1958).
300
Davidson D, ‘The Logical Form of Action Sentences’ in Rescher N (ed), The Logic of Decision and
Action (Pittsburgh: University of Pittsburgh Press 1967).
301
Goldman A I, A Theory of Human Action (Englewood Cliffs, New Jersey: Prentice-Hall 1970). See
section 1.3.1 of chapter 1 of this work.
294
77
(ameliorates the patient’s pain) by doing Y (giving a potentially lethal dose of
opiates). Again, it is the doing of Y that causes X; the giving of the medication that
ameliorates the pain.
While the MSB does not dispute these outcomes, using ‘closeness’ as a measurement
of intention appears counterintuitive to the logic of the DDE in cases of pyramid
painkilling. Kuhse’s words on this practice, as cited earlier, are instructive here:
‘It would seem that in many cases the stage will be reached where a
doctor foresees that a particular dosage which is sufficiently large to
alleviate the patient’s pain will also positively cause the patient’s
death.’302
If Foot’s criterion was used to determine whether a certain action or actions
constituted the intentional termination of life in such a circumstance, the doctor’s
deliberate administration of what he thinks is a lethal dose of pain-killers would
clearly be an example of the intentional termination of life.303 Yet, notes Kuhse,
proponents of the DDE would hold just the opposite: ‘...what the doctor (would be)
said to ‘do’ is merely...relieve the patient’s pain.’304 If this though is not the direct,
intentional termination of life, then nor would the death of the potholer or the foetus
be understood as such. The removal of a ventilator from a dependant patient would
likewise be indistinguishable from the consequential death, as would many other
deliberate actions that proponents of the DDE support.
It is clear then that the distinction between direct (intended) and indirect (foreseen)
consequences can be manipulated semantically. This fact alone though does not prove
that the intentional/intentionally distinction is inaccurate. Nor does it make the MSB
correct in claiming that foresight effectively becomes intention when an action is
taken to achieve foreseen ends. Indeed it does little more than highlight the potential
for both mental states to be redefined to reflect the prevailing moral ‘good’ in
different circumstances. In order to explore these claims it is essential, first, to present
the DDE in its traditional form.
302
Kuhse H, (1987) op. cit., at pg. 101.
ibid., at pg. 101; Foot P, ‘The Problem of Abortion and the Doctrine of Double Effect.’ in Steinbock
B (ed.), Killing and Letting Die (Englewood Cliffs, New Jersey: Prentice-Hall 1980) at pgs. 157-158.
304
Kuhse H, (1987) op. cit., at pg. 101.
303
78
Intended consequence –
amelioration of pain
Foreseen (though unintended)
consequence - death
The state of acting intentionally –
without coercion.
The intention(al)
provision of a
bolus of morphine
Diagram 1 – Double effect
As is necessitated by the DDE’s third criterion,305 there is a clear means-ends
progression from the actor to the foreseen and intended consequences of his actions.
The means employed are themselves ‘good’ in that they are undertaken by the
physician with the intention of ameliorating pain (his intended consequence), and not
to hasten or cause death (the foreseen consequence) no matter the likelihood of this
occurring. By acting with the intention of relieving the patient’s pain, the physician is
taken to be acting intentionally when the unintentional consequence (death) occurs, in
that he is doing what he is doing of his own free will. He is not however, according to
the DDE, acting with the intention of causing that unintended consequence when he
acts, even though he is acting intentionally in giving the morphine and foresees the
death.
This conclusion brings the discussion back to Duff’s definition of acting intentionally.
Recall from section 2.1.1, ‘I do not intend the (foreseen) side effects of my actions,
‘The good effect must flow from the action at least as immediately (in order of causality, though not
necessarily in the order of time) as the bad effect. In other words, the good effect must be produced
directly by the action, not by the bad effect. Otherwise the agent would be using a bad means to a good
end, which is never allowed.’ in Catholic University of America, New Catholic Encyclopaedia, vol. 4
(New York: McGraw Hill 1976) at pgs. 1020-22.
305
79
but...I may...bring them about intentionally...’306 Rewriting this based on the
dictionary definition of ‘intentionally’ exposes a clear double standard, ‘I do not
intend the (foreseen) side effects of my actions, but...I may...bring them about with
intention...’ Thus, one may bring about a consequence with intention, yet be said not
to intend what one brings about.
Important ramifications for the DDE as a whole are brought on by this contention
because, without the intentional/intentionally distinction, that between intention and
foresight is brought into question. Since all talk of foresight is apparently rendered
spurious when the dictionary definition of ‘intentionally’ is used in place of the
phrase ‘with intention’, the following examples will eschew its use. According to the
rewritten version of Duff’s quotation, a physician would say this of the ‘foreseen’
consequences of his actions: ‘I did not intend to cause death (what would have been
‘foreseen’ if ‘intentionally’ did not mean ‘with intention’), but I caused death with
intention.’ To coin an even more spurious phrase, ‘I did not intend to cause death, but
I intended to cause death.’
As fervently, and rightly, as any physician may deny intending to kill his patient in
giving him morphine, or indeed raising the dose of morphine in an infusion as the
need requires it, it is impossible to deny that he knows307 what giving that drug will
likely do.308 As section 2.1.1 noted earlier a want, wish, belief or desire is separate
from intention itself, and as such it is plausible to claim that a doctor may intend both
to ameliorate pain, and end his patient’s life in the process, without wanting to do the
latter. Ashworth explicitly states that it is possible to possess more than one intention
at one time:
306
Duff R A, Intention, Agency and Criminal Liability. Philosophy of Action and the Criminal Law
(Oxford: Basil Blackwell 1990) at pgs. 76-80.
307
It is acknowledged here that intention cannot be implied through knowledge alone. See: Davis L H,
Theory of Action (Englewood Cliffs, New Jersey: Prentice-Hall Inc 1979) at pg. 61; Meiland J W, The
Nature of Intention (London: Methuen and Co Ltd 1970) at pgs. 86-87.
308
Baroness Finlay would strongly dispute this claim. See for example: Select Committee on the
Assisted Dying for the Terminally Ill Bill. HLSC (2005) Report on the Assisted Dying or the
Terminally Ill Bill 2004, Volume II: Evidence, HL Paper 86-II. The findings of Stevens K R are also
instructive. Stevens K R, (2006) ‘Emotional and Psychological Effects of Physician-Assisted Suicide
and Euthanasia On Participating Physicians’ 73 (3) Linacre Quarterly 203. Section 2.3.1 of this chapter
recognises that death from opiate intoxication is not certain in every situation where the DDE may or
may not be needed. This thesis’ conclusions regarding the effect of this fact on the MSB can be found
in the same section.
80
‘It is quite possible – indeed quite normal – to do things with more
than one intention in mind. The approach of the criminal law,
however, is generally to...ask whether one particular intention was
present when the act was committed. The law...is interested in the
presence or absence of one particular intention – that specified in the
definition of the offence charged – and not in conducting a general
review of D’s reasons for the behaviour in question.’309
In a similar vein the Remmelink Report recorded the recognition of three new
categories of intention, the most popular one among the physicians polled being that
which described the situation where a physician, acting with the primary intention of
relieving pain could also act partly with the intention of hastening death. van der
Maas et al, the authors of the study on which the Remmelink Report was based note
that this intermediate category was aimed at the situation where ‘...(the) death of the
patient was not the foremost in the physician’s mind but neither was death
unwelcome.’310
At first glance Ashworth’s assertion regarding one particular intention being the law’s
focus behind ascribing culpability appears to unseat the MSB on principle. Any
physician asked why he is providing palliation to a patient, no matter the dosage, will
quite honestly reply that he wants to ease the patient’s suffering and intends to do so
by giving him the appropriate medication. If he acknowledges the possibility of death
at all he will certainly not claim to be intending to cause it as a result of his actions.
However, without the intentional/intentionally distinction and the knock-on effect its
loss has on the clarity of that between intention and foresight, can the claim that one
does not intend consequences one brings about with intention hold water?
In answering this question in the negative, the MSB claims that it is action, taken in
full knowledge of the foreseen311 consequences of that action, that changes foresight
into intention. The following diagram represents this process simply:
309
Ashworth A, Principles of Criminal Law (5th edn Oxford: Oxford University Press 2006).
van der Maas P J, van Delden J J M, Pijnenborg L, Looman C W N ,(1991) ‘Euthanasia and other
medical decisions concerning the end of life’ 338 The Lancet 669.
311
The use of the words foreseen or foresight in this discussion is maintained for the sake of clarity,
irrespective of the conclusions reached by the MSB regarding the ‘intentional/intentionally’.
310
81
Taking action in full knowledge of
foreseen consequences
Diagram 2 – boundaries?
The smaller rectangles either side the central one represent the separate mental states
‘intention’ and ‘foresight’, while that in the centre and the arrow below it signify the
changing of the mental states and the progression of a course of action respectively.
It is an obvious observation to make that one’s mental state changes over the course
of performing an action. Prior to performing the action one thinks about doing it,
paying mind to its possible consequences and outcomes.312 Both the amelioration of
pain and death are foreseen prior to any action being taken. Once decided, one
performs the action in the knowledge of those foreseen consequences, mentally
prepared to bear them as needed. The change brought to foresight by action comes
directly from the MSB’s understanding of action itself. Recall from chapter 1 section
1.3.1 of this work:
‘For movement to become an action ‘volition’ must be exercised and
‘volition’ is a species of ‘bare intention’. Complex intention
represents the ends to which the action prompted by the bare
intention is aimed. Acting therefore is the realisation of an intention
through volitional physical movement.’313
The volitional action of administering medication to the patient, having foreseen from
the outset the likely consequences of doing so, changes that foresight into the
intentional pursuance of both outcomes, not just that which the physician wants to
cause. This argument, combined with the refutation of the intentional/intentionally
312
A thorough debate of the literature on the mental states or lack thereof in instantaneous or
unconscious action is not possible or relevant here. For further discussion see: Davidson D, (1963)
‘Actions, Reasons, and Causes’60 (23) The Journal of Philosophy 685; Goldman. A. I, A Theory of
Human Action (Englewood Cliffs, New Jersey: Prentice-Hall, Inc 1970).
313
Chapter 1 section 1.3.1 of this work.
82
distinction, are the grounds upon which the MSB claims that the DDE is logically
unworkable.
2.4 Conclusion
This chapter concludes with a supposition. The idea that one can foresee a
consequence and not intend it is entirely valid until that foreseen consequence is
realised through action. The physician could foresee that giving his patient a dose of
morphine may well kill him while he stood in the doorway of his patient’s room and
simply thought about it. As a doctor he would know through clinical experience that
such was the case.314 His foresight becomes INTENTION however when he acts to
cause that foreseen consequence; when he gives his patient the morphine irrespective
of his knowledge that he is likely to die as a result. The DDE is, therefore, little more
than a ‘pious fiction’.315 One which Price argues is ‘…the prime catalyst for
jurisprudential distortion…’316 and that allows practitioners to ‘deceive themselves’
in situations where ‘…analgesics are used to relieve pain and simultaneously…hasten
death…’317
Furthermore it is claimed here that the DDE’s reliance on the distinction between
intentional action and acting intentionally offers no maintainable distinction between
instances of ‘permissible’ and instances of ‘non-permissible’ killing. On the strength
of these arguments the DDE could, hypothetically, be dismissed as fallacious.
However, without it there would be no way for the courts to abrogate the harshness of
the law in this area when faced with cases like Arthur,318 Carr,319 Adams320 and
Cox.321 It is concluded therefore that, in order to protect both the morally blameless
doctor from prosecution, and patients from the unregulated use of practices which
amount to active euthanasia and intentional killing, urgent reform is required.322
314
See the discussion in section 2.3.1 of this chapter.
See Young R, (2007) op. cit.; Brazier. M, Medicine, Patients and the Law (Harmondsworth, UK:
Penguin Books 1992).
316
Price D, (1997) ‘Euthanasia, Pain Relief and Double Effect’ 17 (2) Legal Studies 323 at pg. 324.
317
Norman R, Ethics, Killing and War (Cambridge: Cambridge University Press 1995) at pg. 87.
318
R v. Arthur (1993) 12 BMLR 1.
319
R v. Carr The Sunday Times, 30 November 1986, 1.
320
R v. Adams [1957] Crim. L.R. 365.
321
R v. Cox (1992) 12 BMLR 38.
322
Young is of a similar opinion. See Young R, (2007) op. cit. Also see, Brazier M, (1992) op. cit.
315
83
It is recognised however, that the MSB cannot exist in isolation from existing
practices and case law. The theory itself is based on the contention that the courts
already rely on the contested practices (passive euthanasia and references to foresight
and acting intentionally in double effect) to provide doctors with ‘defences’323 to a
charge of otherwise indefensible homicide. Chapter 3 aims to make this reliance
clear, and exposes the role competence plays in court decisions regarding the
withdrawal of treatment.
323
Williams G, (2007) op. cit., at pg. 17.
84
Chapter 3
The ‘Moral Step Back’ and judicial rulings
3. Introduction
Chapters 1 and 2 have explored the theoretical underpinnings of the Moral Step Back
(MSB), and have alleged that the distinction between active and passive euthanasia
and the doctrine of double effect (DDE) are based on flawed reasoning. The
maintenance of the distinctions at the centre of both of the contested mechanisms, it is
claimed here, is assured because with them a practitioner who withdraws treatment or
provides pain relief whilst foreseeing death as a possible but unintended consequence
of that provision is saved from culpability if a death should result.
It must be reiterated that the MSB does not seek to imply a moral or legal imperative
in making practitioners who rely on the DDE or perform passive euthanasia
criminally liable.324 It points out only that the current methods of exonerating the well
meaning practitioner in such a circumstance are illogical because they are based on
principles which are highly flawed, and cites reform to the law as the most viable
method of correcting this problem.325
This chapter seeks to show how the courts deploy the principle of autonomy based on
the precepts it proclaims as discredited. It begins with a broad discussion of English
and American case law concerning consent and capacity, the prerequisites of making
an autonomous choice (made by the patient himself or by the person who has been
granted LPA under the Mental Capacity Act (2005) where the patient has lost
competence).326 After the current law is set out, it will be argued that the courts in
See section 1 of chapter 1 of this work for an explanation of the MSB’s reasoning regarding sparing
practitioners culpability in circumstances where ‘passive’ euthanasia or the DDE would be relied upon.
325
See chapter 7 of this work for a thorough discussion of all of the major options for affecting reform
to the law.
326
The words ‘competence’, ‘competent’ and capacity are commonly understood to denote different
concepts. ‘Competence’ and ‘competent’ describe the state of being possessed of the ‘capacity’ to
make informed choices, where ‘capacity’ itself is what a person possessed of ‘competence’ has. This
chapter will use these words interchangeably, and will specify clearly when an individual meaning is
needed.
324
85
England and Wales habitually respect the competent patient’s autonomy when
requests to withdraw treatment are made, but do not do so in cases where the
requested assistance is ‘active’. This difference in approach, apparent whether or not
the patient is competent, is questionable under the MSB’s reasoning. It appears, in
light of chapter 1’s claim that the active/passive distinction is a misnomer, that the
courts are acting arbitrarily in respecting certain patients’ autonomy while
disregarding or overriding others.327 It will be concluded that, because of the
aforesaid arbitrariness, the law should be reformed to allow a competent patient the
ability to decide the manner of his or her passing. The courts, in allowing autonomy
to be exercised in the ‘passive’ circumstance but not the ‘active’ one, perpetuate the
illogicality evinced by the MSB.
3.1 Capacity, competence, choice, consent
The concepts of choice and competence are invariably bound together in principle. In
order to choose, one must be competent; if one is competent one can choose. Stauch,
Wheat and Tingle point out the essential elements of valid consent to treatment as
follows:
‘(a) the patient must have sufficient understanding, variously
described as mental capacity or mental competence, to make the
decision;
(b) the patient must consent to (or refuse) the treatment of his own
free will, with no duress or undue influence; and,
(c) the patient must have been given sufficient information about the
proposed treatment.’328
The latter points are equally as important as the first in determining capacity. An
extensive review of them is outside the scope of this section, as it is focussed on
defining competence in terms of the patient’s ability to understand information, not
the content of that information329 or the absence of duress.330 The aim here is to
327
See section 1.4.1 of chapter 1 of this work for a discussion of why the MSB claims the act/omission
distinction in cases concerning active and passive euthanasia is incorrectly made. Section 3.4.1 of this
chapter outlines the limits of the MSB’s applicability to omissions.
328
Stauch M, Tingle J and Wheat K, Text, Cases & Materials on Medical Law (3rd edn London:
Routledge-Cavendish 2006) at pg. 115.
329
For a full discussion of this aspect of determining capacity see: Freeman v. Home Office [1984] 1
All ER 1036; Thor v. Superior Court 5 Cal 4th 725 (1993); Kennedy I, (1994) ‘Commentary on Thor v.
86
explore the courts’ approach to defining consent in refusal cases. Even with the
guidance provided by case law and the Law Commission’s Consultation Paper on
Mental Incapacity,331 the assessment of capacity is far from straightforward in
practice. It is by its very nature a subjective assessment made by one person, who
judges the ‘cognitively not directly accessible’332 mental state of another. In the
medical context it will fall primarily to doctors, at the point of treatment, to make the
assessment. The law provides assistance for this, but how effective that assistance is
in practice is debateable.
The Law Commission provided three possible alternative approaches to determining
capacity; the ‘status’, ‘outcome’ and ‘functional’ approaches.333 Criticisms of these
approaches were wide ranging. The ‘status’ view was felt to be oversimplified, as it
delineated between the competent and the incompetent by virtue of age. A child
would therefore be seen as incompetent, even if by rights he is Gillick competent.334
The ‘outcome’ view on the other hand was derided as overly paternalistic. The Law
Commission described the approach as follows:
‘An assessor of capacity using the ‘outcome’ method focuses on the
final content of an individual’s decision. Any decision which is
inconsistent with conventional values, or with which the assessor
disagrees, may be classified as incompetent...’335
To adopt such an approach would mean that the patient’s consent would only be
required when a doctor did not recommend a type of treatment, but described a
number of alternatives to a patient inviting him to decide which to choose. In any
situation where there was only one choice of treatment, a patient who refused it would
be deemed to lack capacity, and the treatment would go ahead on the ground that it
was in his best interests.
Superior Court’ Medical Law Review 224; Kaimowitz v. Michigan Department of Mental Health 42
USLW 2063 (1973); Culiver C M and Gert B, Philosophy in Medicine (New York: Oxford University
Press 1982) and Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, CA.
330
Chatterton v. Gerson [1981] QB 432, QBD; Canterbury v. Spence 464 F 2d 772 (1972); Sidaway v.
Board of Governors of the Bethlem Royal Hospital and the Maudsey Hospital and Others [1985] 1 AC
871; Grubb A (ed), Principles of Medical Law (2nd edn Oxford: Oxford University Press 2004); Keown
J, (1989) ‘The ashes of AIDS and the phoenix of informed consent’ 52 Medical Law Review 790.
331
Law Com No. 231 (1995) Mental Incapacity.
332
Stauch M, Tingle J and Wheat K, (2006) op. cit., at pg. 119.
333
Law Com No. 231 op. cit., para. 34.
334
Gillick v. West Norfolk & Wisbech AHA [1986] AC 112.
335
Law Com No. 231 op. cit., para. 34.
87
The Law Commission therefore recommended the ‘functional’ approach. Here the
assessor asks whether an individual is able, at the time when a particular decision has
to be made, to understand its nature and effects. This approach is reflected in the
Walton Report336 and the Mental Capacity Act (2005),337 both of which define
competence in terms of the ability to understand and use information to make
decisions regarding medical treatment. The courts have also adopted similar reasoning
in key cases on capacity and consent to treatment. In Re T (Adult: Refusal of
Treatment) Lord Donaldson MR made it clear from the beginning of his judgement
that the competent patient’s right to consent to or refuse to consent to treatment is an
absolute one. He stated that:
‘An adult patient who, like Miss T, suffers from no mental
incapacity has an absolute right to choose whether to consent to
medical treatment, to refuse it or to choose one rather than another of
the treatments being offered.’338
Later, he went on to note:
‘…every adult has the right and capacity to decide whether he would
accept medical treatment, even if a refusal might risk permanent
injury to his health or even lead to premature death, and regardless of
whether the reasons for the refusal were rational or irrational,
unknown or even non-existent…’339
The competent patient is therefore allowed to make his own decision about the
treatment he or she wishes to refuse, regardless of his reasoning. The same principle
was reiterated in Re C,340 a case which has already been mentioned briefly in section
2.2 of chapter 2 of this work. The facts of the case are as follows.
C, a 68 year old patient suffering from paranoid schizophrenia, developed gangrene in
his foot during his confinement in a secure hospital while serving a 7 year term of
imprisonment. He was removed to a general hospital, where the consultant surgeon
336
Walton Committee (1994), Report of the Select Committee on Medical Ethics (London: HMSO).
Mental Capacity Act (2005) sections 2 and 3.
338
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 at 653.
339
ibid., at 650.
340
Re C(Adult Refusal of Medical Treatment) [1994] 1 WLR 290; [1994] All ER 819.
337
88
diagnosed that he was likely to die imminently if the leg was not amputated below the
knee. An application was made on C’s behalf to the court for an injunction restraining
the hospital from carrying out an amputation without his express written consent. On
behalf of the hospital it was alleged that C’s capacity to give a definitive decision had
been impaired by his illness and that he had failed to appreciate the risk of death if the
operation was not performed.
In concluding that C possessed the requisite capacity to refuse treatment the High
Court stated ‘…Although his general capacity is impaired by schizophrenia, it has not
been established that he does not sufficiently understand the nature, purpose and
effects of the treatment he refuses.’341 Thorpe J explains how this right is approached
by the court:
‘…the ultimate conclusion should be reached by weighing in the
scales the preservation of life against the autonomy of the patient. If
the patient’s capacity is reduced, the lighter autonomy weighs.’342
On this principle it is no leap of logic to make the suggestion that in cases sharing
similar facts, the completely competent patient’s decisions would weigh all the more
heavily against the steps taken to preserve his life. As such, were he to refuse life
sustaining treatment, there would be little the doctors caring for him could do to
impose it upon him barring proving his incapacity to make such decisions in court.
The case of Re C is helpful in this regard also because it provides numerous suggested
tests for determining capacity.
Dr Eastman, one of C’s physicians, analysed the decision-making process and split it
up into 3 stages; (1) comprehending and retaining treatment information, (2) believing
it and (3) weighing it in the balance and arriving at a choice. This approximation was
built upon in the case of Re MB343 by Butler-Sloss LJ. She noted:
‘A mentally competent patient has an absolute right to refuse to
consent to medical treatment for any reason, rational or irrational, or
341
ibid., at 825.
ibid., at 822.
343
Re MB (Medical Treatment) [1997] 2 FLR 426.
342
89
for no reason at all, even where that decision may lead to his or her
own death.’344
In this case a 23 year old woman was admitted to hospital when 40 weeks pregnant.
Her foetus was in the breech position and because vaginal delivery would pose a
serious risk of death or injury to the foetus, she agreed to a Caesarean operation to
deliver it. However, because of a needle phobia, she panicked and, at the last moment,
withdrew her consent. The High Court granted a declaration that it would be lawful to
carry out the operation because, on the evidence, the patient was suffering from a
temporary impairment of her mental functioning and was, therefore, not competent.
This decision was upheld in the CA where Butler-Sloss LJ made a number of
conclusions on the ‘capacity to decide’. Those appropriate to the current discussion
are quoted below:
‘(1) Every person is presumed to have the capacity to consent to or
to refuse medical treatment unless and until that presumption is
rebutted...
(4) A person lacks capacity if some impairment or disturbance of
mental functioning renders the person unable to make a decision
whether to consent to or to refuse treatment. That inability to make a
decision will occur when:
(a) the patient is unable to comprehend and retain the information
which is material to the decision, especially as to the likely
consequences of having or not having the treatment in question;
(b) the patient is unable to use the information and weigh it in the
balance as part of the process of arriving at the decision. If, as
Thorpe J observed in Re C…a compulsive disorder or phobia from
which the patient suffers stifles belief in the information presented to
her, then the decision may not be a true one…
(5) The ‘temporary factors’ mentioned by Lord Donaldson MR in Re
T (confusion, shock, pain or the effects of drugs) may completely
erode capacity but those concerned must be satisfied that such
factors are operating to such a degree that the ability to decide is
absent.
(6) Another such influence may be panic induced by fear. Again,
careful scrutiny of the evidence is necessary because fear of an
operation may be a rational reason for refusal to undergo it. Fear
may also, however, paralyse the will and thus destroy the capacity to
make a decision.’345
344
ibid., at 432. See also Sidaway v Board of Governors of the Bethlem Royal Hospital and the
Maudsley Hospital [1985] AC 871, per Lord Templeman at 904-905; Lord Donaldson MR in Re T
(Adult: Refusal of Treatment) [1993] Fam. 95.
345
Re MB (Medical Treatment) [1997] EWCA Civ 136 at 30. The quotation maintains the numbering
used in Butler-Sloss LJ’s ruling for reasons of clarity.
90
While these observations provide a comprehensive legalistic framework for
determining capacity, the concepts relied on in jurisprudence – ‘understanding’,
‘retention’ and ‘ability to weigh’ treatment information in a ‘balance’ – are not based
on medical literature, and have a fluid character to them. It may be the case that this
fluidity lends flexibility to complex concepts and situations, but it is equally likely
that it engenders arbitrariness in the decision-making process, with different
practitioners relying on their own understanding of what the components of capacity
are.
The next section builds on section 3.1 by exploring how the courts in England and
Wales assess capacity in cases where the patient is competent and refusing further
treatment. This discussion and those immediately following it will form the basis
upon which the claim in section 3.5, that the courts’ respect for requests for the
cessation of treatment and/or the refusal of further treatment, contrasts starkly with
cases where active means of ending life are requested, will be made.
3.2 The competent patient in England and Wales
It must be noted from the outset that the MSB recognises that there are situations
where the concepts of refusing further treatment and requesting the withdrawal of
treatment can be differentiated. The former is most often seen as a pure omission of
treatment; pure in the sense that the patient simply says ‘stop treatment A’ and the
physician accedes to that request. This kind of omission occurs when, for example, a
course of medication is stopped. The physician simply does not do what he was doing
before, giving the next dose of medication.
The ‘ceasing treatment’ situation can be contrasted with that where a patient requests
that a type of treatment is withdrawn e.g. where a respirator is relied upon but
unwanted and the patient requests that his doctor withdraw the tubes connecting him
to it. It is more likely than not that this kind of ‘omission’ will result in the patient’s
91
death, and also that the physician involved will resist it more readily than the ‘ceasing
medication’ example. This approach was displayed in the case of Ms B.346
The claimant, who was 41 years of age, suffered a haemorrhage of the spinal column
in her neck in 1999. She was admitted to the respondent hospital and a cavernoma
was diagnosed, a condition caused by the malformation of blood vessels in the spinal
cord. When she was transferred to another hospital, she was informed by doctors that
there was a possibility of a further bleed, or surgical intervention, which would result
in severe disability. On the basis of that advice the claimant executed a living will
dated the 4th of September 1999, in which she expressed her wish for treatment to be
withdrawn if she suffered a life-threatening condition, permanent mental impairment
or permanent unconsciousness.
Although the claimant recovered sufficiently to work, her condition deteriorated in
2001. She was readmitted to hospital where she suffered an intramedullary cervical
spine cavernoma, as a result of which she became tetrapelgic and suffered complete
paralysis from the neck down. She was subsequently transferred to an Intensive Care
Unit and was put on a ventilator. She was informed by a consultant anaesthetist that
the living will she had made was not specific enough to authorise the withdrawal of
ventilation.
After neurological surgery to remove the cavernous haematoma, the claimant was
able to move her head and to articulate words. She gave formal instructions to the
respondent through her solicitors that she wished artificial ventilation to be removed.
Two consultant psychiatrists at the respondent hospital concluded that she did not
have the capacity to make a decision in respect of the withdrawal of treatment.
Numerous re-assessments were undertaken, none of which provided a firm conclusion
as to her mental capacity. Indeed, contrary to the first assessment the claimant was
declared competent after a re-assessment on the 8th of August 2001. She was offered a
referral to a weaning centre where, over a period of time, assistance from a ventilator
would be reduced allowing her body to become used to breathing again. However, the
claimant refused to be put on the programme.
346
Ms B v. An NHS Trust Hospital [2002] EWHC Fam 429.
92
She applied to the court seeking a Declaration that the hospital had been treating her
unlawfully since the 8th of August 2001. The issue before the court was whether she
had the mental capacity to choose whether to accept or refuse medical treatment in
circumstances in which her refusal would almost inevitably lead to her death, and
whether she had capacity from August 2001. Ruling in Ms B’s favour Butler-Sloss P
stated:
‘...the right of a competent patient to request the cessation of
treatment had to prevail over the natural desire of the medical
profession to try to keep her alive…’347
In coming to this decision she noted that ‘Her (Ms B’s) mental competence was
commensurate with the gravity of the decision she might wish to make’348 and
reiterated the fundamental principle that:
‘If...the patient, having been given the relevant information and
offered the available options chooses to refuse, that decision has to
be respected by the courts. Considerations of the best interests of the
patient are irrelevant.’349
This clear respect for the patient’s right to choose regarding her end of life care and
its withdrawal are reflections on the decisions taken in Re T, Re C and Re MB and
make up the main body of case law on consent in England and Wales. However the
cases discussed so far have been based on requests for treatment to be withheld or
withdrawn. Respect for competence does not seem to transfer over to cases where the
crux is clearly based on a request for ‘active’ assistance in dying. The cases of Annie
Lindsell350 and Dianne Pretty351 exemplify this distinction, while that of Leslie
Burke352 provides a point of comparison regarding requests for the continuation of
specific treatments.
347
Re B (Adult: Refusal of Medical Treatment) [2002] 2 FCR 1 para. 27.
ibid., at para. 95.
349
ibid., at para. 100.
350
http://news.bbc.co.uk/1/hi/health/background_briefings/euthanasia/332464.stm.
October 25th 2010 at 11:01am).
351
R (on the application of Pretty) v. DPP [2001] UKHL 61; [2001] 3 WLR 1598.
352
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273.
348
(accessed
on
93
Lindsell and Pretty both suffered from MND, much as the patient in Re AK (Medical
Treatment: Consent)353 did. AK concerned a patient who indicated by blinking that he
wanted his ventilator turned off two weeks after he lost the ability to communicate
completely. The court’s decision was firmly based on the competent patient’s right to
refuse medical treatment and Hughes J, quoting Lord Goff in the Bland judgement,
confirmed that ceasing treatment was a lawful omission to continue with procedures
to which the patient did not consent.354
Unlike the AK case however, both Mrs Lindsell and Mrs Pretty asked unequivocally
for assurances to be given that if they received active assistance in suicide, their
abettors would not be punished. Lindsell went to the High Court for a ruling that her
doctor could lawfully administer diamorphine to ease her mental and physical
suffering, even if this shortened her life. She dropped her case when the judge, the
solicitors appointed by the Official Solicitor and the Attorney General assured her
that the DDE applied to mental distress and physical pain, even if this shortened her
life.355
Mrs Pretty, by contrast, took her case to the European Court of Human Rights
(ECtHR) after her request for a reprieve from culpability for her husband should he
assist her suicide, failed in the English Courts. A fuller discussion of the Pretty case
will take place in chapter 4. For now it is necessary only to mention that the ECtHR
refused to acknowledge that the denial of clemency by the DPP infringed Articles 2,
3, 8, 9 and 14 of the European Convention on Human Rights. Unlike Mrs Lindsell,
she could not be availed of the DDE as her request for assistance in dying was made
to her husband, not a medical practitioner who could use the doctrine should he need
it.
The case of R (Burke) v. General Medical Council356 is a further contrast to Lindsell
and Pretty. Mr. Burke went to court because he is suffering from a progressive
degenerative disease, Spino-cerebellar ataxia, which will eventually lead to loss of
353
Re AK (Medical Treatment: Consent) [2001] 1 FLR 129.
ibid., at 135. This approach was upheld in the cases of St George’s Healthcare NHS Trust v. S
[1999] Fam 26 and, Re W (Adult: Refusal of Treatment) [2002] EWHC Fam 901.
355
http://news.bbc.co.uk/1/hi/health/background_briefings/euthanasia/332464.stm (accessed on 13th
June 2010 at 15.06pm).
356
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273.
354
94
speech and movement and he will require treatment by way of artificial nutrition and
hydration to keep him alive.
Given his expressed wish to fight his disease until the end of his natural life, he was
concerned that his physicians, once he lost capacity, would withdraw the ANH and
allow him to die on the basis of an approximation of his best interests. He sought to
clarify when, once started, the treatment could lawfully be withdrawn, if it could be at
all. To this end he argued that existing guidance issued by the General Medical
Council (GMC) was unlawful in so far as it failed to protect the rights of a patient
expressing an advance directive to carry on life prolonging treatment.357
He feared that when he became unable to communicate, although he would likely still
be conscious of what was happening to him, artificial feeding would be withdrawn.
Naturally enough, he found such a prospect altogether horrifying. Accordingly, Mr.
Burke wanted to be sure that doctors would not, contrary to his wishes, be able to
withdraw feeding.
Mr. Burke relied on principles of Common Law and on Articles 2 and 3 of the
European Convention on Human Rights dealing respectively with the ‘right to life’,
and the ‘prohibition against inhumane and degrading treatment’. In his judgment
Munby J emphasised four issues he encountered in the disputed set of Guidelines that
he felt required amendment. These were:
1) The need to emphasise the right of the competent patient to
require, as opposed to refuse, treatment.
2) To make it clear that a doctor who had assumed responsibility for
a patient’s care was under a duty to continue providing treatment,
even if he or she was unwilling to do so, until he had found
another doctor to assume responsibility for the patient’s care,
3) To acknowledge ‘intolerability’ as being the touchstone for the
patient’s best interests, when considering withholding or
withdrawing treatment from him or her.
4) To make clear the legal requirement to obtain prior judicial
sanction for the withdrawal of artificial feeding in cases where
357
Since the Burke case new guidelines have been issued by the GMC on end of life care. The new
guidance, entitled ‘Treatment and care towards the end of life: good practice in decision making’ was
released on 1st July 2010. It is accessible at the following address: http://www.gmcuk.org/guidance/ethical_guidance/6858.asp.
95
there was disagreement about capacity, best interests, the
patient’s condition and prognosis and/or the applicability of an
advance directive.
His conclusions were reversed unanimously by the CA, which emphasised that the
patient was amply protected by the existing Common Law, and that nothing in the
GMC’s Guidance should be read as detracting from this. Lord Phillips MR delivered
the judgment of the court:
‘So far as ANH is concerned, there is no need to look far for the duty
to provide this. Once the patient is accepted into hospital, the
medical staff come under a positive duty at Common Law to care for
the patient…A fundamental aspect of this positive duty of care is a
duty to take such steps as are reasonable to keep the patient alive.’358
Mr. Burke was therefore entitled to receive all of the treatments offered to him by the
hospital he went to. This duty, according to Lord Phillips, extended to the provision
of ANH when it was necessary to keep the patient alive but would not, on the same
token, ‘…override the competent patient’s wish not to receive ANH.’359 Mr. Burke
could therefore refuse the ANH should he wish to, on the understanding that he be
competent to make such a decision. This ratio supports those of the cases mentioned
in the preceding sections insofar as the competent patient has every right to refuse
treatment, even life sustaining treatment, should he or she wish to. Lord Phillips then
went on:
‘Where the competent patient makes it plain that he or she wishes to
be kept alive by ANH, this will not be the source of the duty to
provide it. The patient’s wish will merely underscore that duty.’360
Thus the courts recognise that when life involves an extreme degree of pain,
discomfort or indignity to a patient who is sentient but not competent, and who has
manifested no wish to be kept alive, these circumstances may absolve the doctors of
358
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 32.
ibid., at 32.
360
ibid., at 32.
359
96
their positive duty to keep the patient alive. Also, it is accepted that there may be no
duty to keep alive a patient in a persistent vegetative state.361 However:
‘No such difficulty arises...in the situation that has caused Mr. Burke
concern…(where the patient) makes it plain that he wants to be kept
alive (irrespective of pain, suffering or indignity)…No authority
lends the slightest countenance to the suggestion that the duty on the
doctors to take reasonable steps to keep the patient alive in such
circumstances may not persist.’362
In concluding, Phillips MR made it clear that Munby J’s observations pertaining to
the illegality of paragraphs 13,363 16,364 32,365 and 42366 of the GMC’s Guidance were
unfounded. He noted that while 13 and 16 are general principles, and while they do
not state explicitly that a doctor cannot withdraw ANH from a patient who does not
wish it to be withdrawn, that ‘…that this is their (the sections’) inference.’367 The
same was held to be true of sections 32 and 42. They suggest:
‘…that the wishes of the patient should be respected unless this is
‘clinically inappropriate’ and….administering treatment that is
necessary to keep a patient alive cannot be described as clinically
inappropriate.’368
361
Airedale NHS Trust v. Bland [1993] AC 789; [1993] 1 All ER 821.
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 34.
363
‘Adult competent patients have the right to decide how much weight to attach to the benefits,
burdens, risks, and the overall acceptability of any treatment. They have the right to refuse treatment
even where refusal may result in harm to themselves or in their own death, and doctors are legally
bound to respect their decision. Adult patients who have the capacity to make their own decision can
express their wishes about future treatment in an advance statement.’
364
‘Applying these principles may result in different decisions in each case, since patients' assessments
of the likely benefits and burdens or risks, and what weight or priority to give to these, will differ
according to patients' different values, beliefs and priorities. Doctors must take account of patients'
preferences when providing treatment. However, where a patient wishes to have a treatment that - in
the doctor's considered view - is not clinically indicated, there is no ethical or legal obligation on the
doctor to provide it. Where requested, patients' right to a second opinion should be respected.’
365
‘If you are the consultant or general practitioner in charge of a patient's care, it is your responsibility
to make the decision about whether to withhold or withdraw a life-prolonging treatment, taking account
of the views of the patient or those close to the patient as set out in paragraphs 41-48 and 53-57.
Exceptionally, in an emergency where the senior clinician cannot be contacted in time, if you are an
appropriately experienced junior hospital doctor or deputising general practitioner you may take
responsibility for making the decision, but it must be discussed with the senior clinician as soon as
possible.’
366
‘You should bear in mind that you are bound to respect an adult patient's competently made refusal
of treatment even where complying with the decision will lead to the patient's death. If a specific
treatment is requested which, in your considered view is clinically inappropriate, you are not legally or
ethically bound to provide it. However, you should give the patient a clear explanation of the reasons
for your view, and respect their request to have a second opinion.’
367
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 64.
368
ibid., at 64.
362
97
As such, it was held that Mr. Burke’s fears were felt to have been adequately allayed
by the GMC’s Guidance, and his appeal was dismissed. This is a deceptive
conclusion to make however, given that Burke was concerned that, as his condition
and treatment progressed, his physicians would come to the conclusion that
prolonging his life was no longer reasonable, or that doing so would become
‘clinically inappropriate’.369 The court appeared to simply restate the status quo, that
treatment could not be demanded, instead of actually answering Burke’s concerns.
In an interview undertaken as part of this work ‘Doctor 2’ expressed a similar opinion
regarding a patient’s rights as regards demanding specific treatments:
‘I’m a doctor. I’m trained at the expense of the tax payer, I’m
employed at the expense of the tax payer so I’ve got a particular set
of duties which I’ve voluntarily taken on. To provide health care.
But that is not a specific duty to provide a specific treatment that is a
duty to provide what’s best and appropriate. What I don’t think
that’s describing is a right on the part of a patient, a person, to say
this is the treatment I want. I don’t think there is anything in the
theoretical opinions on autonomy and the respect for autonomy that
says that means I can tell you what I want. It’s a right to noninterference. And that’s the difference I think between saying no to
treatment and saying this is what I demand.’370
It is therefore clear that while a patient has every right to say ‘yes please’ or ‘no thank
you’ to an offered treatment, he cannot by the same token say ‘give me treatment
A’.371
3.2.1 Burning Burke’s Bridge?
It might be questioned whether a different ratio could be read into the Burke
judgment. At the time of Munby J’s and Lord Phillips MR’s judgments, Mr. Burke
did not require ANH. He feared that in the future, when he would require it, it might
369
ibid., at 64.
Interview with ‘Doctor 2’ by Edwards. J conducted on 15 th April 2009.
371
The case of Glass v. United Kingdom (Application No. 61827/00) (2) comes to the same conclusion
as the Burke case.
370
98
be taken away as a result of his losing competence and his doctors then deciding that
continued treatment was not in his best interests.
There is a possible, though improbable point of conjecture raised on a slightly
different interpretation of Mr. Burke’s case. It could be argued on the facts that the
central issue espoused by the ratio in the case (that one may not demand treatment but
may refuse it) was improperly formulated given that Mr. Burke had not explicitly
demanded anything at all. He simply desired that a future status quo be preserved. As
Lord Phillips MR rightly noted:
‘So far as ANH is concerned, there is no need to look far for the duty
to provide this. Once the patient is accepted into hospital, the
medical staff come under a positive duty at Common Law to care for
the patient…A fundamental aspect of this positive duty of care is a
duty to take such steps as are reasonable to keep the patient alive.’372
As such Mr. Burke would receive the treatment as of right once he consented to it.
His doctors would choose the most effective treatment for him to receive, as per their
duty of care, and he would receive it as all patients do, by virtue of the fact that he is a
patient who needs it and has been offered it. There is no element of demanding that
specific treatment present. It could be argued that this thought exercise is simply one
of the same kind of semantic sophistry criticised in chapter 1 of this work: that
instead of saying that Mr. Burke demanded a specific treatment, he asked for a
specific treatment not to be taken away and that, in effect is a non-point given that
both formulations of the ratio achieve the same result i.e. that Mr. Burke demanded
his treatment.
It is also questionable whether the MSB would change this outcome. By applying it to
these facts one could conclude that the act/omission distinction complained of is nonexistent based on the explanations in chapter 1. As a result of this non-existence the
court should be willing to either accept both forms of Burke’s request or deny both,
instead of maintaining the non-distinction and perpetuating the double standard the
MSB purports to display in cases concerning ‘passive’ euthanasia. This is an
uncomfortable conclusion to come to, however, as it is not the nature of the act or
372
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 32.
99
omission itself that is under scrutiny, but the nature of the request precipitating that
act or omission. As such, it would be a safer conclusion to draw for this section that
Burke makes a clear case for one to be able to consent to the withdrawal of treatment,
but not to be able to demand a specific form.
The coming section adds to this chapter’s discussion of competence by focusing on
the American courts, their appreciation of competency and the right of the competent
patient to refuse treatment.
3.3 The competent patient in America
In much the same way the English courts in Re T, Re C and Re MB show personal
autonomy to be a central theme running through cases concerning competent patients,
the American courts in Satz,373 Farrell,374 Vacco v. Quill375 and numerous others,
place autonomy at the crux of their reasoning.
The case of Satz concerned a patient who was ventilator dependent and suffering
from MND. He had on numerous occasions tried to disconnect himself from the
respirator, but had been physically restrained by hospital staff. The Florida Supreme
Court made a decidedly contradictory judgement. On the one hand it agreed that the
right to privacy of a competent terminally ill person in Mr Satz’s position took
precedence over numerous State interests – one of which was the prevention of
suicide. On the other, however, it asserted unequivocally that, despite his numerous
attempts at disconnecting the ventilator keeping him alive, he had no intention to die.
Price is of the opinion that ‘...the courts typically adopt a narrow construction of
intention in this context, equating it with desire, yet seemingly then deny the selfevident truth.’376 He later asserts that this denial is based on the ‘dubious’ DDE and
concludes, as the MSB does, that applying it to circumstances like those facing Mr
Satz is ill-advised. The usual distinction the doctrine is based on is twisted minutely
to distinguish instead between desiring death for its own sake and intending to avoid
373
Satz v. Perlmutter, 362 So. 2d 160 (Fla. 4th DCA 1978).
In the Matter of Kathleen Farrell, 529 A 2d 404 (1987).
375
Vacco v. Quill (521 U.S. 793; S. Ct. 2293; 1997 U.S. LEXIS 4038; 138 L. Ed. 2d 834).
376
Price D P T, (1996) ‘Assisted suicide and refusing medical treatment: linguistics, morals and legal
contortions’ 4 Medical Law Review 370.
374
100
continued existence in an unacceptable condition, knowing death is the consequence
of the decision. However, this distinction leads to treating almost all ‘rational selfkillings’377 as non-suicides because it is invariably the case that people, like Mr Satz,
only chose death to escape a more undesirable fate. It is therefore misleading, because
self-killings in such circumstances are commonly perceived as instances of suicide.
Like the Satz case, that of Farrell has at its centre the principle of respect for the
competent informed patient’s autonomy. The court noted that there would be no
liability, civil or criminal, for any person who withdrew life sustaining treatment at
the request of an informed and competent terminally ill patient. This statement and
the principle behind it were echoed and extended in the case of Bouvia378where,
unlike Ms Farrell, the patient was not terminally ill.
Elizabeth Bouvia, a 28 year old quadriplegic woman with cerebral palsy and crippling
arthritis, who required others to feed her, refused to allow further food to be
administered to her. The court of first instance denied Ms Bouvia's request that she
not be force-fed, stating that her prognosis, a further 15-20 years of life if she
received proper care, justified the state's interest in preserving her life. The court said
that to rule otherwise would be tantamount to aiding and abetting suicide, since Ms
Bouvia's motive for refusing treatment was to die. Ms Bouvia immediately appealed
the trial court decision.
The appellate court acknowledged that a competent adult has the right, in the exercise
of control over his or her own body, to determine whether and to what extent to
submit to medical treatment.379 It also held that a competent adult has a basic and
fundamental right to refuse any medical treatment, even if it may save or prolong his
or her life.380 The right was held not only to extend to ‘terminal’ patients, but to those
like Ms Bouvia who did not have such a prognosis. It was further asserted that the
‘patients interests and desires…(are) the key ingredients of the decision-making
377
ibid.
Bouvia v. Superior Court 179 Cal App 3d 1127 (1986) USA.
379
ibid., at 1137; Cobbs v. Grant, 8 Cal. 3d 229, 242 (1972).
380
Barber v. Superior Court, 147 Cal. App.3d 1006 (1983); Re C (Adult Refusal of Medical Treatment)
[1994] 1 WLR 290; [1994] All ER 819; Re T (adult: refusal of medical treatment) [1992] 4 All ER
649.
378
101
process…’381 The court recognised that the right to refuse treatment is based upon the
patient being competent to make that choice and to understand the consequences of
the refusal of care.
The hospital staff, opposing Bouvia’s decision, argued that the state’s interests should
prevail over the right to refuse treatment. Traditionally viable state interests include:
(1)
(2)
(3)
(4)
preserving life,
preventing suicide,
protecting innocent third parties, and
maintaining the ethical standards of the medical profession, including
supporting the right of physicians to effectively render necessary and
appropriate medical services.
The court ruled however that while these interests were important and valid, they
could not overcome Ms Bouvia’s right to refuse treatment. It was felt that the court of
first instance had erred in deciding that, just because Ms Bouvia could live an
additional 15 to 20 years with sufficient care, the state’s interest in preserving her life
for that period prevailed over her individual right to autonomy. It was emphasised that
the length of the life ahead of Ms Bouvia did not correlate to the quality of it during
that time. Indeed considering those possible additional years was erroneous without
considering their quality alongside their number. Thus the court deferred to Ms
Bouvia’s wishes regarding how her life was to end and affirmed her right to have her
naso-gastric tube removed.
Following Bouvia is the case of McKay v. Bergstedt.382 The appellant here, like Ms
Bouvia before him, had been paraplegic for a number of years, was not terminally ill
and was competent. The court confirmed that the right to refuse treatment was not
absolute, and in granting the patient’s request for the withdrawal of his respirator,
balanced that right against five state interests,383 his constitutional liberty interest and
the Common Law right of self determination. Springer J, dissenting, was deeply
381
ibid., at 1019.
McKay v. Bergstedt (1990) 801 P 2d 617 (Nevada Supreme Court) at 633.
383
In McKay v. Bergstedt (1990) the court recognised a fifth state interest – ‘encouraging the charitable
and humane care of those whose lives may be artificially extended under conditions which have the
prospect of providing at least a modicum of quality living’.
382
102
critical of what he considered a ‘killing act’384 which knowingly caused a human
being’s instant death. His judgement and others like it make the importance of
intention and causation in treatment refusal cases obvious, and later cases, Vacco v.
Quill385 and Washington v. Glucksberg386 to name but two, reaffirm this
importance.387 The principle underlying these decisions i.e. respect for patient
autonomy under the caveat of competence, does not diminish entirely when that
competence is taken away.
The next selection of cases displays the continuing trend towards the respect of
patient choice, even when the patient is incompetent and that choice is expressed by
the patient’s relatives or by the person who has been granted LPA under the Mental
Capacity Act (2005).
3.4 The incompetent patient in English and American law
As the preceding sections have shown, where a patient is competent, both English and
American law is constructed to allow him to consent to and withhold consent from
any treatment that has been offered. He may not however, as the Burke case makes
clear, demand that specific kinds of treatment be provided indefinitely. The law
concerning incompetent patients is little different, but for the use of the best interests
principle in England and Wales, and a substituted judgement approach in the United
States.
3.4.1 Best interests and the English cases
The once purely case law based concept of best interests is now detailed in section
1(5) of the Mental Capacity Act (2005). This section states that ‘...an act done, or a
384
McKay v. Bergstedt (1990) 801 P 2d 617 (Nevada Supreme Court).
Vacco v. Quill (521 U.S. 793; S. Ct. 2293; 1997 U.S. LEXIS 4038; 138 L. Ed. 2d 834).
386
Washington v. Glucksberg, 521 U.S. 702 (1997).
387
In the appeal judgements in both Vacco v. Quill (521 U.S. 793; S. Ct. 2293; 1997 U.S. LEXIS 4038;
138 L. Ed. 2d 834) and Washington v. Glucksberg, 521 U.S. 702 (1997), the judges saw no distinction
between withdrawing treatment and assisting suicide as, in both scenarios, the patient’s death was
intended. (See: Quill v Vacco 80 F. 3d 716; 1996 U. S. App. LEXIS 6216, and, Compassion in Dying v
Washington 79 F. 3d 790; 1996 U. S. App. LEXIS 3944). Indeed Reinhardt J in the Compassion case
explicitly rejected the ‘illusory line’ between omission and commission as a ‘distinction without a
difference’ in section V.A.1.2a. Both the Quill and Washington v. Glucksberg rulings were reversed by
the Supreme Court.
385
103
decision made under this Act for or on behalf of a person who lacks capacity must be
made in his best interests...’388 while sections 5389 and 6(6) through 6(7)390 outline
guidance for the application of the test in cases concerning the end of life. The
principle exists so that in situations where a patient is rendered incompetent by an
illness or injury, his doctors may determine which courses of treatment to provide and
which to withhold based on an evaluation of his best interests. Perhaps the most
detailed exposition of the principle is found in the case of Airedale NHS Trust v.
Bland.391
The patient in Bland was a victim of the Hillsborough stadium disaster. He received
acute brain damage as a result of being crushed and trampled, and descended into a
persistent vegetative state from which he would never recover. His doctors, in
agreement with his parents, applied to the court for a declaration to the effect that:
1) they might lawfully discontinue all life-sustaining treatment and
medical support measures, including ventilation, nutrition and
hydration by artificial means,
2) any subsequent treatment given should be for the sole purpose of
enabling him to end his life in dignity and free from pain and
suffering,
3) if death should then occur, its cause should be attributed to the
natural and other causes of his present state,
4) and that none of those concerned should, as a result, be subject to
any criminal or civil liability.
388
Metal Capacity Act (2005) section 1(5).
5(1) If a person (“D”) does an act in connection with the care or treatment of another person (“P”),
the act is one to which this section applies if— (a) before doing the act, D takes reasonable steps to
establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D
reasonably believes— (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P’s best
interests for the act to be done. (2) D does not incur any liability in relation to the act that he would not
have incurred if P— (a) had had capacity to consent in relation to the matter, and (b) had consented to
D’s doing the act. (3) Nothing in this section excludes a person’s civil liability for loss or damage, or
his criminal liability, resulting from his negligence in doing the act. (4) Nothing in this section affects
the operation of sections 24 to 26 (advance decisions to refuse treatment).
390
6(6) Section 5 does not authorise a person to do an act which conflicts with a decision made, within
the scope of his authority and in accordance with this Part, by— (a) a donee of a lasting power of
attorney granted by P, or (b) a deputy appointed for P by the court. 6(7) But nothing in subsection (6)
stops a person— (a) providing life-sustaining treatment, or (b) doing any act which he reasonably
believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects
any relevant issue is sought from the court.
391
Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 821.
389
104
Although Lord Mustill expressed unease over classifying the steps taken to withdraw
treatment from Bland as ‘omissions’, the requisite order was granted and treatment
was withdrawn. In coming to this decision Lord Keith noted:
‘...The fundamental question...(is) whether continuance of the
present regime of treatment and care...would confer any benefit on
Bland. It has been argued for the respondents...that his best interests
favour discontinuance. I feel some doubt about this way of putting
the matter...’392
Lord Keith’s doubt arose from his knowledge of the precedent surrounding best
interests cases. Re J (A Minor) (Wardship: Medical Treatment)393 was decided on the
basis of the perceived quality of life of the minor patient. The Court of Appeal (CA)
held that it would be lawful to withhold life-saving treatment from a very young child
in circumstances where the child’s life, if saved, would be racked by pain and agony.
The problem faced by Lord Keith and the HL in Bland was that the patient was
insensate. As such, making a value judgement as to his best interests was more
difficult because he had no appreciation of his condition that treatment might make
better, or that the lack of treatment might make worse.
Similar issues were confronted in the case of NHS Trust A v. M, NHS Trust B v. H.394
Mrs M and Mrs H were two patients who had been in PVS, like Bland, for three
years, and nine months, respectively. The applicant hospital trusts, with the support of
the patients’ families, applied for Declarations to the effect that, notwithstanding the
Human Rights Act (1998) and its incumbent right to life, it would be lawful to
discontinue artificial hydration and nutrition. Butler-Sloss P, in granting the
Declarations made the following observation:
‘If a decision to cease treatment in the best interests of the patient is
to be characterised as intentional deprivation of life, in view of the
absolute nature of the prohibition on intentional killing...there would
be a duty in every case to take steps to keep a terminally ill patient
alive by all means possible, and continue those steps
indefinitely...such an interpretation...cannot be correct...’395
392
ibid., at 858.
Re J (A Minor) (Wardship: Medical Treatment) (1990) 6 BMLR 25.
394
NHS Trust A v. M, NHS Trust B v. H [2001] Fam 348, Fam Div.
395
ibid., at para 29.
393
105
Practicality and an appreciation of the problems caused by overly burdensome
treatment are both clearly shown in this preliminary justification. Butler-Sloss P was,
as Lord Keith was in the Bland case, keenly aware of the need to weigh the benefits
and burdens of the treatment under discussion to the patient. She went on to say:
‘...the intention in withdrawing artificial nutrition and hydration in
PVS cases is to hasten death...the phrase ‘deprivation of life’ must
import a deliberate act, as opposed to an omission, by someone
acting on behalf of the state, which results in death...Such a decision
based on clinical judgement is an omission to act...the death...is the
result of the illness or injury from which he suffered and that cannot
be described as a deprivation.’396
There are two issues which require analysis here, the first of which necessitates a brief
reference to the MSB. Since chapter 1, sections 1.2 and 1.4 define and discuss the
MSB, as do sections 2.3 through 2.3.2 of chapter 2, a thorough exposition is
unnecessary here. It suffices to point out that Butler-Sloss P was adamant in her
conviction that even though ‘the intention of withdrawing (treatment)...is to hasten
death...’397 such a withdrawal in the present case would not qualify as a ‘deprivation
of life...which results in death...’398 The MSB, for the reasons discussed in earlier
sections, contests this claim by relabeling ‘withdrawal’ as an action – one in this case
which would be ‘...a deliberate act, as opposed to an omission, by someone acting on
behalf of the state, which results in death.’ The first point of analysis then is simply
this observation – the MSB contests the distinction between action and inaction in
cases like A v. M and B v. H.399
The second issue is linked to the first, and is brought to light when Butler-Sloss P
notes: ‘...the death...is the result of the illness or injury from which (the patient)
suffered...’400 It is common practice in cases where treatment is withdrawn for the
courts to proclaim, and for physicians to assert, that the cause of death was the
396
ibid.,
ibid.,
398
ibid.,
399
ibid.
400
ibid.,
397
at para 30.
at para 30.
at para 30.
at para 30.
106
underlying illness or injury, not the effect of the withdrawal itself. This, like the first
issue (above) is contested by the MSB.
It is important to concede from the outset that in cases of ‘pure omission’, it is
difficult, if not impossible, for the MSB to cogently maintain its stance regarding the
cause of death. That said, in circumstances like those faced in A v. M and B v. H401 the
argument may be advanced that, had the withdrawal of treatment not taken place, the
patients would in all likelihood still be alive now. How then can Butler-Sloss P
maintain that it is not the withdrawal of treatment that precipitates the patients’
deaths, if, without that interference, death would not have occurred? These questions
notwithstanding, the case of A v. M and B v. H402 solidifies the precedent set in Bland,
and makes it clear that the outcome of that case did not contravene the European
Convention on Human Rights (ECHR).
Another pair of cases equally influential in the discussion of best interests are, In the
matter of a Ward of Court403 and W NHS Trust v. KH.404 Ward of Court concerned a
22 year old woman who suffered brain damage from three cardiac-arrests during
surgery. She was diagnosed as being ‘borderline’405 PVS and the court decreed that
the withdrawal of artificial nutrition and hydration was lawful. In coming to this
decision, as occurred in both the Bland and A v. M and B v. H406 judgements,
reference was made to the patient’s best interests and the classification of artificial
hydration and nutrition as a type of treatment (per Bland) was affirmed, as was the
right of an incompetent patient to refuse treatment. As the later case of A v. M and B
v. H407 restated, the majority held that the cause of death in this instance would be the
patient’s underlying illness, not the lack of nutrition precipitated by the withdrawal of
treatment and Hamilton CJ, in the Ward of Court case, went as far as to assert:
‘...without the benefit of the nourishment provided by the treatment...she would die
within a short period, and in this regard, she must be terminally ill.’408
401
ibid.
ibid.
403
Ward of Court (In the matter of a) [1995] 2 ILRM 401.
404
W NHS Healthcare Trust v. KH [2004] WL 2458658.
405
Cusack D A, et al (2000) ‘“Near PVS”: A new medico-legal syndrome?’ 40 (2) Medicine, Science
and the Law 133.
406
NHS Trust A v. M [2001] 2 FLR 367; NHS Trust B v. H [2001] 2 FLR 501.
407
ibid.
408
Ward of Court (In the matter of a) [1995] 2 ILRM 401 at 127.
402
107
If Hamilton CJ’s opinion was taken out of context it would appear that every living
human being on the planet is terminally ill, as they cannot survive without the
provision of nutrition. This is of course not what was implied in Ward of Court, but
the level of disbelief one would be required to suspend in making such a sweeping
statement is comparable. Indeed it is arguable that being in a PVS is not a terminal
illness at all. Characterised most predominantly by a finite life expectancy, a terminal
illness will inevitably cause death fairly soon. Existence in a PVS however can be
maintained for many years if the patient’s basic needs are met. In deeming the patient
in Ward of Court ‘terminally ill’,409 Hamilton CJ seemed to overlook the primary and
proximate causes of her eventual death – or at least looked to excuse the withdrawal
of treatment by not addressing the issue. Mason and Laurie took this line of thinking
when they commented:
‘...no matter how euphemistically worded it is, the patient was killed
because the tube was removed...the proximate cause of her death
must...be the result of starvation because, otherwise, there was
nothing to cause the death.’410
W NHS Healthcare Trust v. KH411 was decided on similar grounds as Ward of Court,
though here the patient was not in a PVS. The court had to consider withdrawing
artificial hydration and nutrition when the family of a patient who had her PEG tube
reinstated, appealed against that reinstatement. They felt that her prior expressed
wishes were tantamount to a living will, and that she would not have wished to persist
in the condition she was in when the case was brought to court had she the choice.
Brooke LJ however did not share this outlook. He held that firstly, the prior expressed
wishes of the patient when she was competent were not ‘of the quality to constitute an
advance directive’ and secondly that her expressed wishes did not cover the
circumstances which would have involved dying over a protracted number of weeks
from starvation. The withdrawal was therefore denied.
409
Ibid., at 428.
Mason J K and Laurie G T, (1996) ‘The management of the Persistent Vegetative State in the
British Isles’ 4 The Jur Rev 263.
411
W NHS Healthcare Trust v. KH [2004] WL 2458658.
410
108
Unlike the decision in the A v. M and B v. H412 cases (above) the cause of the patient’s
death in W v. KH was, as Brooke LJ’s ruling shows, felt to be starvation-induced.
Looking back at the cases discussed in this section and those in section 3.3 it appears
that where a competent or incompetent patient refuses treatment, the court decides
that his cause of death is his underlying illness or injury. The cases of Burke, A v. M
and B v. H,413 Ward of Court, Bland and the American case of Vacco v. Quill make
this trend clear, Rehnquist J in the latter noting:
‘...when a patient refuses life-sustaining medical treatment, he dies
from an underlying fatal disease or pathology; but if he ingests lethal
medication prescribed by a physician, he is killed by that
medication.’414
Of all those cases discussed so far, only the W v. KH judgement references the
possibility of starvation, not an underlying condition, as being the cause of death. It
could be argued that the fact that KH was not insensate, as Mr Burke was not (though
KH was incompetent where Burke was not), lead to the decision that she would face
protracted suffering in reaching her end where a patient in a PVS would not. In Burke
however it was clearly noted by Lord Philips that it was the disease that would
eventually shorten the patient’s life, not the withdrawal of artificial hydration and
nutrition. It is open to question whether this distinction is a further incidence of moral
distancing, like those the MSB proclaims necessitate the maintenance of the
acts/omissions distinction and the DDE.
The concordance of English and American law (but for the KH judgement) reaffirms
the currently accepted legal consensus on the refusal of treatment. When the patient
refuses it himself he dies as a result of an underlying illness, even in situations where
it is quite plain that if the withdrawal did not take place, he would survive for a
considerable period.
The way in which incompetent patients are dealt with in the US differs for practical
purposes from how they are dealt with in English law. Instead of the Bland best
412
NHS Trust A v. M [2001] 2 FLR 367; NHS Trust B v. H [2001] 2 FLR 501.
ibid.
414
Vacco v. Quill (521 U.S. 793; S. Ct. 2293; 1997 U.S. LEXIS 4038; 138 L. Ed. 2d 834).
413
109
interests standard, a substituted judgement approach is adopted – critically, one which
was dismissed in Bland by Lord Goff:
‘I wish however to refer at this stage to the approach adopted in most
American courts under which the court seeks, in a case in which the
patient is incapacitated from expressing any view on the question
whether life-prolonging treatment should be withheld in the relevant
circumstances...the substituted judgement test...usually involves a
detailed inquiry into the patient’s views and preferences...in PVS
cases...the surrogate decision maker has to implement as far as
possible the decision which the incompetent patient would make if
he was competent...I do not consider that any such test forms part of
English law in relation to incompetent adults, on whose behalf
nobody has power to give consent to medical treatment...’415
3.4.2 American law, the substituted judgement test and incompetent patients
Much as cases mooted in English courts follow a certain formula, the American courts
employ certain principles in all cases concerning the treatment of incompetent
patients. The starting point is usually confirmation of the patient’s right to selfdetermination; a right that subsumes the right to refuse treatment. The cases of Lane v.
Candura,416 Hamish417 and Boyd418 clearly display this penchant, the Lane case
providing the following statement: ‘The law protects (a person’s) right to make her
own decision to accept or reject treatment, whether or not that decision was unwise.’
These rights are not lost when a patient becomes incompetent, as the cases of
Cruzan,419 Brophy420 and Quinlan421 have shown. The case of Hamish, extrapolating
on the Lane judgment, made it clear that the doctrine of informed consent and the
right to bodily integrity extended to the incompetent patient, and in Boyd it was held
that not only the previously noted rights, but all of the rights possessed by the
competent patient are possessed by incompetent patients as well. The application of
the substituted judgement test to cases like these will be explored in section 3.4.2a.
415
Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 872.
Lane v. Candura 6 Mass App Ct 377, 383, 376, NE 2d 1232 (1978) at 383.
417
Hamish v. Children’s Hospital Medical Centre, 387, Mass, 154, 439 NE 2d 240 (1982).
418
Boyd v. Registrars of Voters of Belchertown, 334 NE 2d 629 (1975).
419
Cruzan by Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990).
420
Patricia E. Brophy v. New England Sinai Hospital, Inc. No. N-4152 Supreme Judicial Court of
Massachusetts 398 Mass. 417; 497 N.E.2d 626; 1986 Mass. LEXIS 1499.
421
Re Quinlan 70 N.J. 10, 355 A.2d 647, 1976.
416
110
While these principles are relatively easy to apply to a patient who was once
competent, the status of never-have-been-competent patients and the suitability of the
substituted judgement doctrine for them have been hotly debated.422 The cases of
Superintendent of Belchertown State School v. Saikewicz423 and Guardianship of Jane
Doe424 will be discussed in section 3.4.2b to highlight how the courts applied the
substituted judgement test to them, irrespective of the fact that neither patient had ever
possessed the competence to make judgements for themselves.
3.4.2a Dealing with the once competent but now incompetent patient
The seminal case of Quinlan is likely the best documented in the body of American
case law on incompetent patients and the right to refuse consent to treatment. Karen
Ann Quinlan was 21 when she fell into a coma after taking a cocktail of alcohol and
drugs at a party in 1975. She subsequently fell into a persistent vegetative state and
was described by a neurologist, Dr Fred Plum, as no longer having any cognitive
function but retained the capacity to maintain the vegetative parts of neurological
function. She was unaware of anyone or anything around her, yet did not, according
to her doctor, meet the Harvard criteria for brain death. As such he was unable to
accede to her father’s request to terminate all life sustaining treatments, including the
use of a ventilator, to allow her to die.
Mr. Quinlan, Karen’s father, approached the court seeking an order of guardianship
over his daughter to gain the power to authorise the desired discontinuance, yet his
petition was denied at first instance. He appealed to the Supreme Court of New
Jersey,425 requesting that the treatment be withdrawn under the U.S Constitution’s
First Amendment,426 but again his petition was denied. The court also considered the
See for example, Annas J, (1978) ‘Law and the Life Sciences: The Incompetent's Right to Die: The
Case of Joseph Saikewicz’, The Hastings Center Report, Vol. 8, No. 1, at pgs. 21-23; Ramsey P, (1978)
‘The Saikewicz Precedent: What’s Good for an Incompetent Patient’ 8 (6) The Hastings Center Report
36.
423
Superintendent of Belchertown State School v. Saikewicz. Supreme Judicial Court of Massachusetts,
Hampshire, 373 Mass. 728, 370 N.E.2d 417 (1977).
424
Guardianship of Jane Doe (411 Mass. 512; 583 N.E. 2d 1263; 1992 Mass. LEXIS 10).
425
Re Quinlan 70 N.J. 10, 355 A.2d 647, 1976.
426
The text of the 1st Amendment reads as follows: ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,
422
111
applicability of the Eighth Amendment,427 but found that it only applied to protection
from excessive punishment in criminal cases. Ms Quinlan's cruel and unusual
circumstances did not result from excessive punishment inflicted by the law or state,
but from an accident of fate and nature. However, the court felt that an individual’s
right to privacy was ‘...broad enough to encompass a patient’s decision to decline
medical treatment under certain circumstances.’ The cases of Griswold v.
Connecticut428 and Roe v. Wade429 were affirmed, and the court further presumed that
the right to privacy extended to situations like Miss Quinlan’s, where the withdrawal
of life sustaining medical care was countenanced.
‘If a putative decision by Karen to permit this non-cognitive
vegetative existence to terminate by natural forces is regarded as a
valuable incident of her right to privacy, as we believe it to be, then
it should not be discarded solely on the basis that her condition
prevents her conscious exercise of the choice...If (the conclusion of
the incompetent patient’s family)...is in the affirmative this decision
should be accepted by a society the overwhelming majority of which
would, we think, in similar circumstances, exercise such choice in
the same way for themselves or for those closest to them. It is for
this reason that we determine that Karen’s right to privacy may be
asserted on her behalf, in this respect, by her guardian and her family
under the particular circumstances presented by this record.’430
Based on these cases the court ruled in favour of Miss Quinlan, and noted that on
balance:
‘We think that the State's interest…weakens and the individual's
right to privacy grows as the degree of bodily invasion increases and
the prognosis dims. Ultimately there comes a point at which the
individual's rights overcome the State's interest.’431
It was also stated that:
or of the press; or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.’ http://caselaw.lp.findlaw.com/data/constitution/amendment01/ (accessed on 4 th
October 2010 at 14.53pm).
427
The text of the 8th Amendment reads as follows: ‘Excessive bail shall not be required, nor excessive
fines
imposed,
nor
cruel
and
unusual
punishments
inflicted.’
http://caselaw.lp.findlaw.com/data/constitution/amendment08/ (accessed on 4 th October 2010 at
14.59pm).
428
Griswold v. Connecticut 381 US 479, 1965.
429
Roe v. Wade 410 US 113, 1973.
430
Re Quinlan 70 N.J. 10, 355 A.2d 647, 1976 at 42.
431
ibid., at 41.
112
‘We have no doubt … that if Karen were herself miraculously lucid
for an interval (not altering the existing prognosis of the condition to
which she would soon return) and perceptive of her irreversible
condition, she could effectively decide upon discontinuance of the
life-support apparatus, even if it meant the prospect of natural
death.’432
As such, even in a case concerning an obviously incompetent patient, the courts
deferred to Miss Quinlan’s perceived wishes and allowed treatment to be withdrawn.
Unexpectedly her breathing continued even after her respirator was removed and she
died in 1985 after contracting numerous infections.
The same principles that guided the Quinlan case were exercised in that of Brophy.433
The question brought before the Massachusetts Supreme Court was whether an
incompetent patient in a PVS, which Brophy himself was, could refuse consent to the
use of artificial hydration and nutrition through a surrogate decision-maker or proxy.
While it was found, in line with previous precedent, that he could refuse consent, the
court did not rule that the hospital where Mr Brophy was cared for had to desist from
providing the unwanted interventions. It is questionable therefore exactly how far a
refusal of consent in Brophy’s circumstances will weigh against a refusal by the
patient’s medical team to comply with his wish.
In a similar vein, the Cruzan434 case involved the possible withdrawal of treatment
from Miss Cruzan, who was in a PVS and therefore unable to express her wishes as to
her continued care. At first instance the case was lost when the Supreme Court of
Missouri held that because there was no clear and convincing evidence of Miss
Cruzan’s desire to have life-sustaining treatment withdrawn under the circumstances
she was in, her parents lacked authority to effectuate such a request. The court
reasoned that whilst there was a right to refuse treatment embodied in the Common
Law doctrine of informed consent, it expressed scepticism about the application of
that doctrine in the circumstances of this case. It also declined to read a broad right to
privacy into the State Constitution which would support the right of a person to refuse
medical treatment in every circumstance and expressed doubt as to whether such a
432
ibid., at 39.
Patricia E. Brophy v. New England Sinai Hospital, Inc. No. N-4152 Supreme Judicial Court of
Massachusetts 398 Mass. 417; 497 N.E.2d 626; 1986 Mass. LEXIS 1499.
434
Cruzan by Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990).
433
113
right existed under the United States Constitution. It rejected the argument that Ms
Cruzan’s parents were entitled to order the termination of her medical treatment,
concluding that, ‘…no person can assume the choice for an incompetent in the
absence of...clear and convincing, inherently reliable evidence (as to the incompetent
patient’s wishes)…’435
The case was then appealed to the US Supreme Court. In a 5-4 decision the Court
affirmed the ruling of the Missouri Supreme Court, stating that while individuals
enjoy the right to refuse medical treatment under the Due Process Clause of the
Fourth Amendment,436 incompetent persons were not permitted to exercise such
rights. It was concluded that the State of Missouri’s actions designed to preserve Ms
Cruzan’s life had been constitutional, especially in the light of lacking evidence that
she would have wanted treatment withdrawn.
The result of the Cruzan judgement was a reaffirmation of the Court’s and individual
States’ interests in preserving life, even in respect of patients in a PVS. Questions
pertaining to the scope of the recognised liberty interest in refusing treatment and
whether it subsumes such a right with respect to PAS have been raised and mooted.
The majority of commentators as yet feel the Supreme Court is reluctant to
‘constitutionalise’ such a diverse and contested area of law and policy, and that in
such cases its inclination is to defer to the states’ judgements, as evidenced by Cruzan
itself.437
As the Quinlan, Brophy and Cruzan cases have made clear, when evidence of a
patient’s wishes is forthcoming, the substituted judgment test works without
encountering a great deal of difficulty. Contested accounts of a patient’s thoughts or
wishes may cause factual problems and require settling, but the test itself is sound and
435
ibid., at 269.
The text of the 4th Amendment reads as follows: ‘The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.’
http://www.usconstitution.net/const.html#Am4 (accessed on 4 th October 2010 at 15.15pm).
437
See, Rie M A, (1992) ‘Practicing Medicine, Fiduciary Trust Privacy, and Public Moral Interloping
After Cruzan’ 17 (6) Journal of Medicine and Philosophy 647; Annas G J, (1991) ‘The Long Dying of
Nancy Cruzan.’ 19 (1-2) Journal of Law, Medicine and Ethics 52; Meisel A, (1992) ‘A Retrospective
on Cruzan’ 20 (4) Journal of Law, Medicine and Ethics 340.
436
114
workable. Whether or not it is equally so when the person in question has never been
competent is the subject of section 3.4.2b.
3.4.2b Dealing with the never-has-been-competent patient
Superintendent of Belchertown State School v. Saikewicz438 is perhaps the most
contentious example of the American court’s appreciation of incompetence and
substituted judgement. The patient was a profoundly mentally retarded man who had
lived all of his life in the care of various institutions. He was diagnosed with an acute
form of leukaemia, and was faced with the choice to either attempt extensive
chemotherapy for a possibility of slight but never complete remission, or receiving
palliative care only. Because of his disability, Mr Saikewicz was unable to appreciate
his situation, weigh the pros and cons of undergoing the likely excruciating therapy,
or make an informed choice. The court therefore was faced with assessing the wishes
of a patient who had never been competent enough to articulate them himself. It was
noted:
‘The decision in cases such as this should be that which would be
made by the incompetent person, if that patient was competent, but
taking into account the present and future competency of the
individual as one of the factors which would necessarily enter into
the decision-making process of the competent person.’439
Lists of reasons for and against going ahead with treatment were drawn up to aid this
process. Those in favour were firstly, the fact that most competent people in the
patient’s position would elect to have chemotherapy, and secondly, the chance at a
longer life should treatment be administered. Those against on the other hand were
more numerous – Saikewicz’s age, the probable side effects of treatment, the low
chance of producing remission, the certainty that the treatment would cause
immediate suffering, the fact that he would, by virtue of his incapacity, be unable to
cooperate with the treatment and finally the fact that his quality of life, even if the
treatment brought about remission, would be comparatively poor. Weighing these
438
Superintendent of Belchertown State School v. Saikewicz. Supreme Judicial Court of Massachusetts,
Hampshire, 373 Mass. 728, 370 N.E.2d 417 (1977).
439
ibid., at 431.
115
issues in the balance the court decided that an aggressive chemotherapy regimen
would be unbeneficial to Saikewicz, and the patient later died.
The influence of the Saikewicz case is considered negative, with much of the criticism
being levied at the court’s liberal interpretation of subjectivity. Annas notes:
‘...that equity required that a mechanism exist to permit incompetent
patients the same right to refuse treatment that competent patients
have "because the value of human dignity extends to both." Any
such decision must be based solely on the "best interests" of the
incompetent patient.’440
Ramsey too is critical of the court’s treatment of Saikewicz’s competence, noting that
it ‘...braintwistingly allows the incompetent lucidly to take account of his
incompetence in exercising an absent capacity to refuse treatment.’441 This seemingly
backward state of affairs came about through the ascription of mechanisms suitable to
competent (or previously competent) patients to a man who had never been competent
or communicative, let alone able to convey his opinion on refusing treatment.
Nolan J in the case of Guardianship of Jane Doe442 was equally scathing of the
Saikewicz decision. Jane Doe was, when the Supreme Court heard her case, in a PVS
and had been severely mentally handicapped all her life, much like Mr Saikewicz had
been. The majority, as well as confirming that both competent and incompetent
patients had the right to refuse treatment, held that Doe’s decision, had she been
competent to make it, would have been to have the treatment sustaining her
withdrawn.
Nolan J’s dissent concerned the lack of evidence as to the patient’s wishes regarding
the manner of her death. He said ‘...there is absolutely no basis on which to conclude
that Doe would choose to die by starvation and dehydration if she were competent.’443
As was posited in the Cruzan case, noted above, ‘…no person can assume the choice
Annas G J, (1978) ‘Law and the Life Sciences: The Incompetent's Right to Die: The Case of Joseph
Saikewicz’, 8(1) Hastings Center Report 21.
441
Ramsey P, (1978) ‘The Saikewicz Precedent: What’s Good for an Incompetent Patient’ 8 (6)
Hastings Center Report 36 at pg. 38.
442
Guardianship of Jane Doe (411 Mass. 512; 583 N.E. 2d 1263; 1992 Mass. LEXIS 10).
443
ibid., at 526.
440
116
for an incompetent in the absence of...clear and convincing, inherently reliable
evidence (as to the incompetent patient’s wishes)…’444 The judgements in Saikewicz
and Doe run exactly counter to this assertion, the judges in both cases taking it upon
themselves to substitute their own judgement for that which neither patient had ever
possessed. As a consequence:
‘...the...courts, composed as they are of competent persons...(were
able to) impute their subjective situated judgement to incompetents
whose will and wishes are unknown to them, and unknowable...’445
In making this argument Ramsey does not express disagreement with the use of the
substituted judgement principle in cases where incompetent persons are involved, and
the MSB too recognises its utility. However the courts in Doe and Saikewicz, by
ascribing the interests of a competent person(s) to the patients in question, stepped on
questionable logical ground. Instead of trying to fit their respective circumstances into
the mould left by cases where a once competent patient is presently incompetent,446 it
would have been more appropriate to conclusively distinguish between the rights and
interests of the competent (or previously competent as was the case in Quinlan) and
the never-have-been-competent person.
As the preceding sections have shown, there is marked judicial respect for the
competent patient’s wishes regarding the omission of treatment. Yet, coupled with
this is a palpable disdain for acceding to requests either for active assistance in ending
life, or for specific treatments, no matter their purpose. Section 3.5 will expand on
this issue and, as well as considering certain reasons for this respect, will show how,
through the MSB, it perpetuates the arbitrariness noted in section 3.
3.5 Exploring respect for autonomy
Certain truths can be drawn from the discussion in sections 3.1-3.3 on the boundaries
of the courts’ respect for a patient’s exercise of his or her personal autonomy. The
cases of Re T, Re C and Re MB make it clear that competence is a requisite of
444
Cruzan by Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990) at 269.
Ramsey P, (1978) op. cit., at pg. 37.
446
Re Quinlan 70 N.J. 10, 355 A.2d 647, 1976.
445
117
decision-making. A competent patient is entitled, as long as he remains competent, to
make choices as to how his treatment is to progress from the options his doctor
provides for him. It is also the case that he retains the right to refuse any offered
treatment if he does not want it, and to withdraw his consent at any time to receiving
further treatment, even if that decision will shorten his life appreciably. 447 To this
extent the courts, in refraining from overriding the competent patient’s decision,
respect his judgement as to the efficacy of his treatment and the foreseen effects of its
withdrawal and allow him to exercise his autonomy in making his choice.
This respect ends however when a patient, as the case of Burke illustrates, requests
specific treatment as opposed to accepting or refusing treatment that is offered. This
is the boundary this section aims to investigate and push. As was explored in section
3.2.1, Burke’s facts and the ratio in the case cannot comfortably be stretched to
accommodate the MSB. The theory can be applied here however in order to expose
and evaluate the boundary, one which ‘Doctor 2’, a participant in the empirical
portion of the research undertaken in this work referred to as the difference between
‘No thank you and please give’.448
According to both the law and medical practice, and as ‘Doctor 2’ rightly pointed out,
a patient cannot request active assistance in ending his life, whether he is competent
or by having his once expressed wishes made apparent by the person who has been
granted Lasting Power of Attorney (LPA) under the Mental Capacity Act (2005).449
This assistance cannot be lawfully offered or given, but a patient can request that his
or her treatment be withdrawn. Indeed, should the patient be incompetent his LPA
can make that request in his stead. Thus they can say ‘no thank you’ but not ‘please
give’; they can refuse treatment and their physicians can omit to provide it, but they
cannot ask for a specific kind of treatment or assistance and expect their physician to
provide active steps to assist them.
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 at 650.
Interview with ‘Doctor 2’ by Edwards. J conducted on 15 th April 2009.
449
References to 'the patient's LPA' or 'LPA' refer to the person who, under section 9 of the Mental
Capacity Act (2005) has been granted a Lasting Power of Attorney so that they can make decisions in
the patient's stead.
447
448
118
Why though is this the case? According to the MSB both the means and the ends of
the contested practices, the giving of active assistance (‘please give’) or the
withdrawal or omission of treatment (‘no thank you’), are equivalent.450 Section 3.5.1
will postulate a pair of reasons for the disparity, before section 3.5.2 reintroduces the
MSB and uses it to allege that respecting a competent patient’s request for the
withdrawal of treatment, but not doing so when some kind of action is required to
fulfil the request, causes arbitrariness.
3.5.1 Possible reasons for the respect
There are numerous reasons why the courts may, when a patient says ‘please give’,
find in favour of the opposition. After the Burke451 case it may be felt too contrary to
legal precedent to allow a similar case to be resolved differently. The reticence may
imply judicial recognition for the limited resources available on the NHS, and to the
unfeasibility of a situation where every patient in England and Wales, as of right,
could demand a particular treatment at a particular time. Allowing this would bring
the already struggling health service to a standstill and would cost an unfeasible
amount of money to support. These issues however are not those with which this
section is concerned. Rather, it is the impact of the act/omission distinction and the
court’s respect for patient autonomy on issues concerning physicians personally that
this section focuses on.
Section 2.2 of chapter 2 of this work briefly touches upon the question of why the
courts chose to respect the requests of certain patients but not others, and cites the
‘psychological wellbeing of the doctor’ as intrinsically relevant to the maintenance of
the DDE.452 Double effect, chapter 2 alleges, allows physicians to provide Soma for
See section 1.4.1 of chapter 1 of this work on ‘Rachels’ Equivalence Thesis’. Rachels’ work
underpins much of the MSB’s reasoning regarding acts and omissions being one and the same in most
circumstances. Section 1.4.1 also discusses the uncomfortable fit ‘pure omissions’ have within the
MSB’s reasoning.
451
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273.
452
Also see section 6.6 of chapter 6 of this work for a discussion of the possible psychological
assistance the DDE and ‘passive’ euthanasia give practitioners who come across the need for either in
their practice.
450
119
their consciences453 or psychologically distance themselves from the results of their
actions,454 and the same argument is applicable here with reference to the ‘no thank
you’ ‘please give’ issue. ‘Doctor 4’ makes direct reference to this point:
“...it’s more of a psychological thing. Do we feel more
psychologically responsible if we, or the nurse we’ve instructed...had
our hand on the end of the needle? Perhaps we do...”455
In Doctor 4’s opinion then, it would be more troubling to her to act in response to a
‘please give’ from a patient than it would be withdrawing a course of treatment in
response to a ‘no thank you’. This issue will be taken up in detail in chapter 6 section
6.6 of this work, rendering a thorough exploration of it at present unnecessary. A
brief look at findings indicating a negative effect on physicians’ mental health
occasioned by assisting deaths is appropriate however, and sets the tone for chapter
6’s discussion.
Doctor Kenneth Stevens, Vice-President and one of the founders of Physicians for
Compassionate Care, authored a damning report on the psychological effects of
physician-assisted suicide and euthanasia on participating physicians from The
Netherlands, the United States and Oregon.456 The following quotations span the
breadth of these jurisdictions and are representative of the overall findings of the
study:
“Many physicians who have practiced euthanasia (in The
Netherlands) mentioned that they would be most reluctant to do so
again.”457
“(Question from Baroness Finlay): The first time you performed
euthanasia, how did you feel about it as a clinician? (Responses from
Recall from section 2.2 the discussion on Huxley’s use of the drug Soma to symbolise the
incomparability of happiness and truth. Huxley A, Brave New World (London: HarperCollins
Publishers 1994).
454
This distance is allegedly achieved by distinguishing between an intended consequence and one
which is merely foreseen.
455
Interview with ‘Doctor 4’ by Edwards. J conducted on 3 rd September 2009.
456
Stevens K R, (2006) ‘Emotional and Psychological Effects of Physician-Assisted Suicide and
Euthanasia On Participating Physicians’ 73(3) Linacre Quarterly 203.
457
van der Maas P J, van Delden J J M, Pijnenborg L, Looman C W N, (1991) ‘Euthanasia and other
medical decisions concerning the end of life’ 338 The Lancet 669.
453
120
Drs van Coevorden and Mensingh van Charente): Awful. It is not a
normal medical treatment. You are never used to it.”458
“But my thoughts are about the fact that I know that is it a very
difficult thing as a physician...I wonder if I have the necessary
emotional peace to continue to participate.”459
“That afternoon...I wrote the prescription for the 90 secobarbital. I
hesitated at the signature and stared out the window...I tried to
imagine deciding to die...Whenever I tried, I felt a sadness much
more profound than what I saw in her (the doctor’s patient)...I slept
badly.”460
While they may make no direct references to the action/omission distinction, and
therefore may not represent the feelings of the participants on that issue, inferences as
to the psychological effect of participating in end-of-life decisions of this sort may
still be gleaned from the quotations. Each of the examples exhibits some hint of the
physician being involved in an active manner in the procurement of a death, either by
actually performing active euthanasia or by writing out a lethal prescription. As such,
while the physicians’ feelings regarding the ‘no thank you’ scenario are unknown, it
is safe to infer that active assistance affected those involved in a negative way.
The courts, in refusing to respect the request of a competent patient for such
assistance, appear to be protecting the physicians involved in his care from the
possible negative effects of going through with the assistance. Quite how much this
practice would impinge upon the patient’s autonomous choice in pursuing his death is
difficult to say, but it is undeniable that he is not the only autonomous actor involved
in a case on assisted dying. His physicians are equally autonomous and are well
within their rights to refuse to render the desired assistance if they choose to.461
Perhaps then, to protect the autonomy (and, arguably the mental health) of physicians
who are disinclined to assist suicide or perform euthanasia, the courts take a
Utilitarian stance in dealing with cases where a patient is saying ‘please give’. Gillon,
writing on the Millsian understanding of autonomy notes, ‘...to maximise overall
human welfare, respect for the autonomy of others (is) required in so far as such
458
Stevens K R, (2006) op.cit., at pgs. 204-205.
ibid., at pg. 207.
460
ibid., at pg. 208.
461
Section 5.3.2 of chapter 5 and 6.1 of chapter 6 of this work echo this sentiment.
459
121
respect (does) not harm others...’462 Because asking for assistance in dying could be
argued to impinge upon the physician’s autonomy (he would have to act to assist the
patient), the courts withhold their respect for the patient’s autonomy when such a
request is made.463
Callahan draws attention to this issue with reference to the difference between legal
suicide, which is a personal, autonomous and self-regarding act, and illegal AS or
euthanasia, which require the involvement or assistance of a third party.464 This
distinction is crucial, argues Callahan, because it turns what in suicide is a purely
private act to one which has ramifications for the public at large. While the MSB does
not discount the distinction Callahan makes between the practices, it has a more
conservative estimate on the public impact assisted suicide has than is evidenced in
Callahan’s work. It could be argued that, since a suicidee is a member of the public,
both issues, suicide and assisted suicide, affect the general public similarly. In both
cases, but for the assistor’s presence, there is a death which was desired by he who
died465 and in both it is the suicidee’s closest relations, familial or otherwise, who are
most affected by the death.
Callahan however is speaking in terms of assisted suicide having a direct effect on
another member of the public, the assistor, and this effect cannot be denied. On the
issue of third-party involvement Otlowski notes:
‘It must be conceded that the involvement of third parties in suicides
changes the necessary character of the acts undertaken. To deny such
would be to deny an obvious and incontestable truth. However,
differentiating the two courses of conduct does not give credence to
one being legal and the other not. The most relevant consideration is
the patient’s request for the assistance he or she wants. If seeking out
assistance in dying is an exercise in patient autonomy and selfdetermination, this choice ought to be respected.’466
462
Gillon R, Philosophical Medical Ethics (Chichester: John Wiley & Sons 1999) at pg. 63.
ibid., at pg. 63.
464
Callahan D, (1989) ‘Can We Return Death to Disease?’ 19 (1) Hastings Center Report 4-6.
465
While this statement does not mention instances of coercion in the procurement of suicides or
assisted suicides, this work recognises that both can and have occurred.
466
Otlowski M, Voluntary Euthanasia and the Common Law (Oxford: Clarendon Press 1997) at pg.
195.
463
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While the MSB agrees with Otlowski’s observations for the most part, it would add to
them, based on the same Utilitarian grounds on which Gillon writes, the need to
recognise that the physician’s autonomy is as important as the patient’s. That is not to
say that one cannot assist a suicide or perform euthanasia autonomously. Physicians
are just as able to make an autonomous choice regarding a proposed course of action
as their patients are. The request for assistance does not bind the physician inexorably
to procuring the end result and, as was mentioned above, he is able to refuse his aid as
of right.467
3.5.2 Respect and the MSB
The preceding sections have made it clear that, in certain circumstances, for certain
reasons, the courts are predisposed to respect a competent patient’s choices regarding
the continuation or cessation of his treatment. However, while competence may be
the starting point in determining how a case is dealt with, this section asserts that the
type of request made by the patient is equally, if not more influential than the
presence or absence of competence. This disinclination facilitates the distancing
noted by the MSB in section 1 of chapter 1 of this work, through which practitioners
remove themselves from the idea of actively procuring the consequences of the
patient’s request.468
The assertion that the type of request is more influential than the patient’s
competence is backed up primarily by the case of Re C.469 Section 2.2 of the
preceding chapter questioned how C, a man whose competence was affected but not
destroyed by his mental illness, was able to refuse his consent to further treatment,
where a patient like Ms B, unaffected by such an illness, could not have her consent
to her ventilator being withdrawn respected. It was concluded in section 2.2 that it
was the nature of the actions required of the physicians in fulfilling the requests
which differentiated them. C’s refusal of treatment was argued to be ‘a great deal
467
It is acknowledged here that physicians may feel pressured into assisting suicide or performing
euthanasia against their will. That said, the fact that they retain the ability to refuse any request made of
them remains, as does their right to do so. See, Re T (adult: refusal of medical treatment) [1992] 4 All
ER 649.
468
See section 1 of chapter 1 of this work for a thorough explanation of the MSB precepts.
469
Re C (Adult Refusal of Medical Treatment) [1994] 1 WLR 290; [1994] All ER 819. Also see
section 3.1 of this chapter.
123
more comfortable for the conscientious physician’470 to effect than a request like that
Ms B made would be. This is because in fulfilling the latter, the physician’s actions
could be seen as directly precipitating the patient’s death,471 where the former only
concerned ceasing an unwanted intervention.
Further evidence of the court’s favouring a questionably competent patient’s refusal
of consent to treatment is found in the case of Re JT (Adult: Refusal of Medical
Treatment).472 Here a patient with mental difficulties, including behavioural
disturbances and learning impairment, refused her consent to receiving renal dialysis.
Despite this, she was found to be competent under the guidelines set out in Re C
473
and her refusal was upheld.
On the facts it is clear that this case, unlike Re C, concerns withholding consent to a
treatment that had not yet begun.474 It is questionable though, if Ms JT had already
been receiving dialysis, like C had been receiving antibiotics, and wanted the
treatment discontinued, whether the courts would defer to her wishes as they did in
the instant case. Doctor 2, when asked to consider the limits of a patient’s
autonomous choice regarding the withdrawal of treatment commented:
‘…What I don’t think that’s (the phrase ‘autonomy’) describing is a
right on the part of a patient, a person, to say this is the treatment I
want. I don’t think there is anything in the theoretical opinions on
autonomy and the respect for autonomy that says it means I can tell
you what I want. It’s a right to non-interference...(emphasis
added).’475
The right of non-interference is maintained in both law and policy and is the basis for
much of the law of consent this chapter has touched upon. However, by taking an
example of a currently accepted ‘non-interference’ or omission to treat, say, the
470
Section 2.2 of chapter 2 of this work.
This was the opinion of ‘doctor C’, one of Ms B’s physicians. Her opinions and their impact on the
case are discussed in section 4.5.1 of chapter 4 of this work.
472
Re JT(Adult: Refusal of Medical Treatment) [1998] 1 FLR 48.
473
Re C (Adult Refusal of Medical Treatment) [1994] 1 WLR 290; [1994] All ER 819. See section 3.1
of chapter 3 of this work.
474
This is an instance of what this work terms a pure omission, one which the MSB’s precepts on
equivalence cannot adequately explain.
475
Interview with ‘Doctor 2’ by Edwards. J conducted on 15 th April 2009. Also see sections 3.2 and
3.2.1 for a discussion of the Burke case.
471
124
withdrawal of ANH from Anthony Bland, and applying the MSB, it can be seen that
the cogency of the argument falters. It falters because non-interference, in cases
where treatment has already been instituted and is being withdrawn because the
patient or his LPA has decided that continuing it would not be prudent, necessitates
interference to effect the desired withdrawal i.e. the physical withdrawal of the
feeding tubes from Anthony.
This already curious state of affairs is made all the more so when the nature of Ms
B’s request is looked at more closely. While it could not be argued that simply
stopping C’s antibiotics was anything more than a pure omission of treatment, Ms B’s
predicament necessitated an intervention by the staff caring for her to disconnect her
from the ventilator keeping her alive. The fact that this intervention painted the
withdrawal in an active light made her physicians uneasy about carrying it out,
irrespective of the fact that precedent, specifically the case of Bland,476 labels the
withdrawal of life sustaining treatment as an omission. Farsides and Dunlop explain
this unease:
‘...patients cannot use the claim of competence to demand that we
should end their life...The interests of the person are trumped...by
societal concerns about deliberate killing, or by an individual’s
moral reluctance to end a life.’477
The MSB however, alleges equivalence between the ends and means of both the
‘action’478 in Ms B’s case and the ‘omission’ in Bland’s, and contends that both cases
should have reached the same conclusion – that the withdrawal of treatment from
each patient was either a lawful omission, as it was in Bland, or ‘active’ and therefore
of questionable legality, as it was in Re B.479 Since Bland’s case was decided in
favour of his parents and physicians who favoured withdrawing treatment, Ms B
476
Airedale NHS Trust v. Bland [1993] 1 All ER 821.
Farsides B and Dunlop R J, (2001) ‘Measuring quality of life: Is there such a thing as a life not
worth living?’ 322 The British Medical Journal 1481.
478
See section 1.3.1 of chapter 1 of this work for a discussion on the definition of ‘action’, and section
1.4.1 of the same chapter on Rachels’ ‘Equivalence Thesis’ and how the MSB builds on it in making its
claims.
479
Re B (Adult: Refusal of Medical Treatment) [2002] 2 FCR 1. Questions as to the propriety of
withdrawing treatment from Ms B were raised by ‘doctor C’, one of the clinicians caring for her. It
must be emphasised that it was in the point of view of the medical team caring for her, not the court,
that the withdrawal of the ventilator would be active. See section 4.5.1 of this chapter for a discussion
of this issue.
477
125
should have been able to access her chosen course of action just as readily, especially
since she was requesting same thing – that treatment be withdrawn to allow her to
die.480 Allowing one request but refusing the other is, on this interpretation, illogical.
This discussion will be taken up again in section 4.3 of chapter 4 of this work, which
points out how, in cases where a putative omission is requested to assist dying, the
courts allow patients to value their own lives as opposed to imposing upon them the
overriding sanctity of life doctrine they habitually use in cases concerning actions.
3.6 Conclusion
In conclusion, this chapter has endeavoured to show that the current law perpetuates
an inconsistency between cases where a patient requests, or has requested, ‘passive
assistance’ by way of withdrawing treatment to end his or her life, and those where
‘active assistance’ is requested. This inconsistency sees competent patients like Ms B
refused assistance,481 even if that assistance is seen, through precedent, as an
omission,482 yet allows claimants like C and Ms JT, whose competence is suspect, to
refuse treatment altogether. This difference in how patients are treated in terms of
having their autonomous requests allowed by the courts is groundless, alleges the
MSB, because the acts that the law seeks to distinguish, active assistance and passive
assistance, are equivalent.483 Therefore, respecting a patient’s autonomy in a situation
like that in the Bland case, but not doing so where Ms B’s circumstances are
concerned, on the basis of the aforementioned non-distinction perpetuates groundless
arbitrariness.
There are further reasons espoused by critics of the ‘pro-euthanasia’ or ‘pro-choice’
lobby, over and above the patient’s autonomy and why reform should not be
undertaken. To make the case for reform being neither morally abhorrent nor legally
impractical, these criticisms must be explored, weighed against the reasoning of the
‘pro’ lobby and ultimately set aside. Such is the function of chapters 5 and 6. Chapter
480
See section 1.4.1 of chapter 1.
Recall from note 478 that it was the medical care team, not the court, that refused to assist Ms B
because they felt doing so would be tantamount to killing her.
482
See section 3.5.2 on how the ‘omission’ in the case of Bland, and that in the case of Ms B were
distinguished.
483
See section 1.4.1 of chapter 1 of this work.
481
126
5 explores the legal arguments posed for and against reform and chapter 6 the moral
ones. Chapter 4 forms the basis of these arguments through a discussion of the value
and sanctity of life. It presents the MSB’s understanding of how these central aspects
of this area of law work, and suggests that the courts, in respecting autonomy in the
manner discussed in sections 3.1 through 3.3 display a skewed appreciation of life’s
true value.
127
Chapter 4
Choice: life’s sanctity and worth484
4. Introduction
This chapter is devoted to discussing life, its value, the questions raised by claims that
life is ‘sacred’, and to making a number of interrelated arguments based on the
concept of choice. In maintaining that the unbiased protection of autonomy should be
seen as the cornerstone of judicial reasoning where competent patients are concerned,
this chapter makes two interrelated claims.
The first builds upon the discussion of competence in section 4.1 of this chapter and
section 3.1 of chapter 3 by claiming that once the capacity to choose is proven, the
patient in cases concerning euthanasia and AS makes an autonomous choice to pursue
his desired end after (and indeed during) a personal assessment of his life’s value.
The value of life, this argument asserts, is estimated in two ways: objectively by
society at large and subjectively or personally by the patient. The objective valuation
often involves invocations of life’s ‘sanctity’ and inviolability while the subjective
one may feature both or neither. It will be argued that, in cases involving a competent
patient it is the latter that should be respected as opposed to the former, which if
imposed upon that patient, disregards his autonomously reached conclusions on the
value of his life.
The second claim concerns the competing values of life and personal autonomy. As
section 3.1 of chapter 3 of this work noted, at law the exercise of autonomous choice
is invariably bound up in the concept of competence. To be able to exercise the power
to choose one must be competent to do so. This ability is presumed by the courts until
it is disproven, as the cases of Schloendorff v. Society of New York Hospitals485 and
Re T (adult: refusal of medical treatment)486 make clear. If the presumption of
The words ‘value’ and ‘worth’ are used interchangeably in this work unless it is specifically stated
otherwise.
485
Schloendorff v. Society of New York Hospitals (1914) 211 N.Y. 125, 105 N.E. 92 (1914).
486
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649.
484
128
capacity remains unchallenged, no treatment may be begun without the patient’s
specific consent. Indeed so great is the courts’ respect for the competent patient’s
autonomy, that this includes life sustaining treatment,487 and remains true of the
withdrawal of such treatment even when that withdrawal will cause the patient’s
death.488
The same is not true however of requests for what physicians and the courts perceive
to be active interventions, despite the fact that the result of such interventions will be
the same as that occasioned by a withdrawal. As section 3.5.2 of the preceding
chapter noted, the moral step back (MSB) disputes this difference in approach, and
alleges that it is a product of the act/omission distinction – a distinction which chapter
1 section 1.4.1 of this work aimed to prove indefensible with reference to Rachels’
Equivalence Thesis.489 In light of this alleged equivalence, it is posited here that the
respect shown for patient autonomy in allowing requests for the withdrawal of
treatment, should likewise be shown in cases where a putative action is required. If it
is not, the autonomy of the competent patient is being groundlessly impinged upon.
Framed in terms of primary and secondary ‘goods’490 and with reference to the
MSB’s reasoning, the argument will dispute the conclusion that the value of life
always outweighs that of respecting autonomy in cases where a competent patient
chooses to pursue assisted dying. Before these claims are explored however, it is
prudent to briefly revisit the concept of competence, and to discuss the numerous
ways in which the value of life is estimated.
4.1 Choice and the need for competence
As sections 3.1 and 3.3 of the preceding chapter and section 4, above, have shown,
one must be possessed of competence to be able to make an autonomous choice about
anything at all. The competent patient, in exercising his ability to choose, makes his
decision in the light of numerous interrelated factors, as well as a personal belief
487
Ms B v. An NHS Hospital Trust [2002] EWHC 429 (Fam).
ibid.
489
Rachels J, (1975) ‘Active and passive euthanasia’ 292 New England Journal of Medicine 78;
Rachels J, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press 1985).
490
Paterson C, Assisted suicide and euthanasia: a natural law ethics approach (Aldershot: Ashgate
2008).
488
129
about his quality of life. If he believes that, on balance, the quality of his life
outweighs its ‘sanctity’, he may consider refusing treatment preferable to continued
burdensome attempts at prolonging his life. As Farsides and Dunlop have noted
however, a patient cannot use the fact that he is competent to demand that his
physicians end his life.491 It appears therefore that the patient’s personal valuation of
his life can effectively be nullified by the reluctance of his physician and society to
accept that he feels that his life is of limited value.492
Often, the root of the above noted concerns is the sanctity of life. The concept of
sanctity has roots in both Eastern and Western theology and moral philosophy and
proclaims that life is somehow sacrosanct, sacred and inviolable simply because it
exists. The stringency of this claim can be contrasted between the Eastern Jain
tradition and Western Christianity, the former believing that every life is sacred, the
latter that every human life is. Regardless of its origins however it is agreed between
both traditions that life is invariably sacred and should be treated with the utmost
reverence, and this claim is not disputed here. Indeed the MSB recognises and lauds
the idea that human life has innate worth, because of the good that can come from
living life, the enjoyment living brings, the cacophony of experiences life can yield
and so on. The numerous ways that worth can be estimated are explored in the coming
section, and provide a background against which the MSB’s claims will be made.
4.2 Various ways of valuing life
While discussing the character of the criminal law Lord Devlin observed that:
‘...there are certain...moral principles which society requires to be
observed...the breach of them is an offence, not merely against the
person who is injured but against society as a whole.’493
Farsides B and Dunlop R J, (2001) ‘Measuring quality of life: Is there such a thing as a life not
worth living?’ 322 The British Medical Journal 1481. Also see section 3.5.2 of chapter 3 of this work.
492
Section 3.5.2 of chapter 3 of this work makes a similar argument in relation to how the courts
distinguish between cases where a patient requests what is in effect an active intervention that will
shorten his life, as opposed to the situation where he withdraws his consent for a particular treatment
and that treatment is omitted.
493
Devlin P, The Enforcement of Morals (Oxford: Oxford University Press 1965).
491
130
The most pervasive of these principles is the sanctity of life. Sanctity is one of a pair
of overarching principles which form the building blocks for discussing the value of
life: the quality of life and the sanctity of life. According to the former approach,
life’s worth is dictated by its quality. Quality can be estimated by both the person in
question and society at large. This estimation is influenced by innumerate factors and
depends heavily on one’s personal beliefs and opinions. Sanctity of life on the other
hand is less a mechanism for quantifying value and more a belief that life’s value is
immeasurable.
The understanding one has of sanctity depends, much as the appreciation of the
quality of life does, on one’s belief system. In discussing sanctity Herring draws
attention to the concept of ‘vitalism’494 and distinguishes between it and the belief that
life is possessed of innate sanctity.
‘Vitalism...holds that human life is an absolute moral value. It is
never justifiable to kill a person...(The) sanctity of life holds that
human life is a fundamental basic good. It states that a person should
not be intentionally killed, be that through an act or an omission.’495
Keown is of a similar opinion regarding vitalism’s distinction from the sanctity of life
principle. In his work ‘Restoring moral and intellectual shape to the law after Bland’
he writes:
‘Although life is a basic good it is not an absolute good, a good to
which all other basic goods must be sacrificed in order to ensure its
preservation. The sanctity of life doctrine is not vitalistic. The core
of the doctrine is the principle of prohibiting intentional killing, not
an injunction requiring the preservation of life at all costs.’496
The claim that life is simply too valuable to be ascribed material worth is a staple of
vitalism’s proponents, but, claims the MSB, is a questionable one to make. There are
numerous examples of mechanisms which apply value to life, Paterson’s work being a
notable example. Paterson writes at length about how life is a primary good and how,
Herring understands ‘vitalism’ as the belief that life is immutably sacred and should therefore never
be taken under any circumstances. Herring J, Medical Law and Ethics (Oxford: Oxford University
Press 2006) at pg. 438.
495
ibid., at pg. 439.
496
Keown J, (1997) ‘Restoring moral and intellectual shape to the law after Bland’ 113 Law Quarterly
Review 481.
494
131
in so being, its worth is added to and pursued through various secondary goods.
Primary goods, to Paterson, are those things which are good in and of themselves.
Life is the most obvious example, while health, knowledge, truth and contemplation,
practical reasoning, family, friendship, work, play and beauty497 make up various
others. Secondary goods on the other hand enable the pursuit of primary goods.
Capital for example, material goods and power, pleasure, avoiding pain and
autonomy498 are all secondary goods in Paterson’s mind. ‘Together, (primary and
secondary goods) constitute the irreducible ingredients of a humanly fulfilling life’499
and it is this fulfilment which ascribes life its value.500
Numerical approximations of life’s worth are also possible. There is already in use a
statistical device known as a Quality Adjusted Life Year or ‘QALY’, which plots life’s
worth against its quality and works on the assumption that ‘…a person would prefer a
shorter healthier life to a longer period of survival in a state of severe discomfort and
disability.’501 Harris quotes Alan Williams, creator of the QALY:
‘The essence of a QALY is that it takes a year of healthy life to be
worth 1, but regards a year of unhealthy life as worth less than 1. Its
precise value is lower the worse the quality of life is. If being dead is
worth 0, it is, in principle, possible for a QALY to be negative, i.e.
for the quality of someone’s life to be judged worse than being dead.
The general idea is that a beneficial healthcare activity is one which
generates a positive amount of QALYs, and that an efficient health
care activity is one which the cost per QALY is low, and a low
priority activity is one where the cost-per-QALY is high...’502
Applying the QALY to a scenario assists understanding. Jackson503 presents the
following situation: treatment X gives patient A 5 further years of life, and treatment
Y gives patient B 1 more year. Both treatments cost £5000. Because treatment X will
497
Paterson C, (2008) op. cit.,
Raz J, The Morality of Freedom (Oxford: Clarendon Press 1986); Rasmussen D B and Den Uyl D J,
Liberty and Nature An Aristotelian Defence of Liberal Order (La Salle, Illinois: Open Court 1991) both
feel that autonomy is a primary good. This will be discussed at length in section 4.4.
499
Paterson C, (2008) op. cit., at pg. 50.
500
Section 4.4 of this chapter details the MSB’s argument that both life and autonomy are primary
goods.
501
Harris J, (1987) ‘QALYfying the value of life’ 13 Journal of Medical Ethics 117 at pg. 118.
502
ibid., at pg. 119.
503
Jackson E, Medical Law: Texts, Cases and Materials (2nd edn Oxford: Oxford University Press
2010) at pgs. 45-47.
498
132
provide patient A with a greater amount of (quality adjusted) ‘life years’ it is taken to
be more cost effective than treatment Y, which has a lesser life years yield. Michael
Rawlins and Andrew Dillon, the chair and CEO of the National Institute for Health
and Clinical Excellence (NICE) respectively, expand on this outcome by bringing the
age of the patient into consideration.504 They give the example of treatment for
osteoporosis, the cost of which is slashed by almost two thirds from £32.936 per life
year for patients aged 50, to £12.191 per life year for patients over 70. ‘...This occurs’
explains Harris ‘because older patients have a greater risk of complications from
osteoporosis and thus benefit more.’505
The QALY’s function is therefore to generate the maximum amount of life years
possible at the lowest cost. It indicates which of the numerous available treatments for
a particular patient is most cost-effective and has the most positive effect for him in
terms of adding more life years to his life. The fact that patient A’s quality of life may
be better than patient B’s after receiving the treatment is inconsequential if A’s
number of life years is increased less by the treatment than B’s would be.506
For all its efficacy in statistical terms, the QALY has been subject to rigorous
criticism.507 Farsides and Dunlop question whether one can value a life as less than
‘0’, as is possible with the QALY, and therefore dictate which lives are worth living
and which are not. Their thesis concludes that such a negative valuation is ‘not very
useful’ except in situations where it can be used to ‘...support a decision not to treat a
patient and so...prevent a life from being prolonged or saved...’508 The MSB, while
acknowledging this possibility as accurate, asserts that it is not the place of a
statistical model to dictate, in individual cases, the worth of a human life. It will be
argued in section 4.3 of this chapter that it is for each individual person, or for a
504
http://www.nice.org.uk/media/2C3/31/CCReportOnQALYsAndSeverity.pdf (accessed on February
12th 2011) at 13.22pm.
505
Harris J, (2005) ‘NICE Discrimination’ 31 Journal of Medical Ethics 683.
506
Harris J, (1995) ‘Double Jeopardy and the Veil of Ignorance – A Reply’ 21 Journal of Medical
Ethics 151.
507
Billingham L J, Abrams K R and Jones D R, (1999) ‘Methods of analysis of quality-of-life and
survival data in health technology assessment’ 3 Health Technology Assessment 55; Spiegelhalter D J,
Gore S M, Fitzpatrick R, Fletcher A E, Jones D R and Cox D R, (1992) ‘Quality of life measures in
health care. III: resource allocation’ 305 The British Medical Journal 1205; Kaplan R M, ‘Profile
versus utility based measures of outcome for clinical trials’ in: Staquet M J, Hays R D and Fayers P M
(eds), Quality of life assessment in clinical trials: methods and practice (Oxford: Oxford University
Press, 1998) at pgs. 69-92.
508
Farsides B and Dunlop J, op. cit., at pg. 1483.
133
person who has been granted Lasting Power of Attorney (LPA) under the Mental
Capacity Act (2005)509 in the case of a person who has lost capacity, to value his or
her own life personally.
Further to this critique, the QALY’s emphasis on the production of life years has been
subject to debate. Because of this emphasis it has been argued that, as a system for
allocating treatments in the most cost-effective manner, it is inherently discriminatory
to certain groups of people. Harris names the elderly and the disabled as being
particularly at risk because, while their quality of life may be improved by treatment,
they are less likely to have an increased number of ‘life years’ than a healthy younger
person may.510 Given that increasing the number of ‘life years’ is the main aim of the
QALY, it is logical to conclude that people with a diminished ability to have more
years added onto their life span may be overlooked when treatments are being
weighed for cost-effectiveness.
Mullen and Spurgeon believe that QALYs, as well as being possibly discriminatory in
terms of age and disability, are inconsistent with the principle that people with equal
health needs should have equal access to appropriate medical treatment. Rather,
maximising QALYs means that people with an equal need for treatment will not be
treated equally given the discrepancies between the number of life years each person
has. In line with what Harris points out (above) Mullen and Spurgeon feel that those
people with more available QALYs will be allocated treatment, while those who have
less may not.511
It is also arguable that the QALY scale may discourage innovations in treatment. 512
New treatments, when they are first introduced, are often extremely expensive. This
cost decreases as the technology becomes commonplace and all of the necessary
additional training for practitioners in the treatment’s use is completed. Established
and currently cheaper treatments may be favoured by the QALY because of their cost509
Mental Capacity Act (2005) section 9. References to 'the patient's LPA' or 'LPA' refer to the person
who, under section 9 of the Mental Capacity Act (2005) has been granted a Lasting Power of Attorney
so that they can make decisions in the patient's stead.
510
Harris J, (1987) op. cit.
511
Mullen P and Spurgeon P, Priority Setting and the Public (Abingdon: Radcliffe Medical Press
2000).
512
Jackson E, (2010) op. cit., at pgs. 45-47.
134
effectiveness, irrespective of the possible long term cost-savings from adopting the
new treatment.
Perhaps the most pertinent critique of the QALY when it is discussed in the context of
the value of life is that which comes from its reliance on objectively and accurately
predicting the anticipated length and quality of a person’s life. It is questionable
whether a statistical measure can quantify such a notoriously unreliable quantity, and
speculating about the future quality of a person’s life is equally uncertain. Take for
example Doctor 2’s recollection of a conversation with Baroness Warnock:
‘…she said I will not (change my mind about how I wish to die).
And the thing that I couldn’t help but say, and I made an apology for
saying it…”You’re utterly convinced of that. So were the last 20
people who said it. But they DID! You may be the exception. You’re
probably the brightest of them.” But interestingly she said something
else in another conversation. When I was 35 I wouldn’t have thought
that living at 85, half blind and half deaf would be acceptable. Now I
find it’s not so bad. So, there’s some change in her mind. Clearly I
don’t say that for a moment in criticism. The only logical and
reasonable position is to be prepared to change your mind in light of
changing circumstances (emphasis added).’513
It is difficult to reconcile the QALY’s professed accuracy with the obvious variability
in the quotation. Cookson points this out with reference to the fact that what gives life
value differs greatly from person to person,514 an argument that the MSB reiterates in
section 4.3. It is quite clear that the quality of life is not purely dictated by economic
viability and its remaining length. Taken in isolation the QALY is therefore too crude
to capture all of the variables that feed into estimating the quality of life accurately.515
This conclusion does not mean that the economic ‘value’ of life is useless.
Economists have been calculating the worth of human lives for as long as their
profession has existed, using measures such as lifetime earnings to weigh up the costs
and benefits of things such as:
Interview with ‘Doctor 2’ by Edwards. J conducted on 15 th April 2009.
Cookson R, McDaid D and Maynard A, (2001) ‘Wrong SIGN, NICE Mess: Is National Guidance
Distorting Allocation of Resources?’ 323 The British Medical Journal 743.
515
Jackson E, (2010) op. cit., at pgs. 45-47.
513
514
135
‘…public programs, such as the control and eradication of disease,
highway construction, accident control, education, vocational
rehabilitation, welfare, housing, and flood control…’516
Indeed according to Rice and Cooper ‘…the valuation of human lives is a basic
requirement for the proper calculation of the benefits to be derived.’517
Monetary value however is not the only measure of life’s worth. Scholars like
Singer,518 Doyal,519 Harris520 and Rachels521 quantify life’s value ‘instrumentally’,522
and note that life may ‘not be worth living’ if it becomes too great an encumbrance
upon he/she who must live through it. In their minds it is the ability to perceive and
gain enjoyment from life, however that enjoyment is gained, which gives life its
value. Others, as the brief look at sanctity in this section has shown, explain life’s
worth with reference to God and intrinsic value.523 On this logic one’s ‘immortal
soul’ is not one’s own to do with as one wishes.524 Life, they maintain, has some kind
of inherent value525 and is therefore, by virtue of simply being ‘life’, endowed with
the utmost importance.
The value of life is not measured, it is opined here, by considerations of the length of
life lived against the length of life left to be lived. No matter the duration of one’s
natural life, it is invariably venerated for the simple fact that it is life. Yet the fact
remains that both society as a whole and individual persons value their lives and the
lives of others to differing degrees and make choices based on those evaluations. This
presents the question of how value should be attributed to life. It is agreed, as was
Rice D P and Cooper B S, (1982), ‘The Economic Value of Human Life’ 57 (11) American Journal
of Public Health 1954 at pg. 1954
517
ibid., at pg. 1954
518
Singer P, Practical Ethics (2nd edn, Cambridge: Cambridge University Press 1993).
519
Doyal L, (2006) ‘Dignity in dying should include the legalisation of non-voluntary euthanasia’,
1Clinical Ethics 65.
520
Harris J, The Value of Life (London: Routledge & Kegan Paul 1985).
521
Rachels J, (1975) ‘Active and passive euthanasia’ 292 New England Journal of Medicine 78;
Rachels J, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press 1985).
522
Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: RoutledgeCavendish 2007).
523
ibid., pgs. 9-31.
524
Kuhse H, The Sanctity of Life Doctrine in Medicine: A Critique (Oxford: Clarendon Press 1987) at
pg. 18.
525
For further discussion see: Huxtable R, (2007) op.cit.; Kuhse H, The Sanctity of Life Doctrine in
Medicine: A Critique (Oxford: Clarendon Press 1987); Young R, Medically Assisted Death
(Cambridge: Cambridge University Press 2007); Brazier M, (1992) op. cit., and McMahan J, The
Ethics of Killing: Problems at the Margins of Life (New York: Oxford University Press 2002).
516
136
noted above, that life has SOME value. Indeed life is a universal good.526 While we
are in possession of it we can experience things, contribute to others’ lives and live
our own. The chapter will now move on to discuss how value is attributed to life, by
whom and why.
Broadly speaking there are three schools of thought on the matter; those who believe
life is ‘intrinsically valuable’, those who feel it is ‘instrumentally valuable’ and those
who feel that we, as human beings, should be able to choose the value of our lives.
The coming sections endeavour to give a grounding in each of these schools, before
section 4.3 situates the MSB within that framework.
4.2.1 Life’s intrinsic value – religion and sanctity
Theologically speaking, the intrinsic value of life is expressed by the perception that
we as human beings have gone through some kind of ‘ensoulment’527 and are
therefore endowed with a life that is sacred. This belief is known as the ‘traditional
ethic’,528 and it underlies most of the arguments against euthanasia, and a number of
those in favour of it.529
Most historians of Western morals agree that the rise of Judaism and Christianity
began what is now often referred to as the ethic regarding the ‘sacredness’ of human
life. Set within the theological context, the particulars of sanctity can be broadly
summarised in two points:
1. The notion of sanctity explains why certain reasons for killing
human beings are considered wrong, while others are not. The core
of the principle establishes the requirement that one ought never
intentionally kill an innocent, either by an ‘act’ or by an ‘omission’.
2. The distinctive dignity of human beings belongs to them simply by
virtue of being human. In Gormally’s words ‘…the necessary
rational abilities are acquired in virtue of an underlying or radical
capacity, given with our nature as human beings, for developing
526
Paterson C, (2008) op. cit.
Young R, (2007) op. cit., at pg. 66
528
Keown J, Euthanasia, Ethics and Public Policy (Cambridge: Cambridge University Press 2002) at
pg. 232.
529
Kuhse H, (1987) op. cit.
527
137
precisely such abilities.’530 As a result it belongs to all human beings
equally.
The modern law on homicide reflects the sanctity these precepts imbue life with quite
obviously by making illegal the intentional ‘…killing of a human being, in being,
under the Queen’s peace’.531 There is a pair of obvious caveats within this general
prohibition, the former reflected in the theological understanding of sanctity, the latter
not. The first is the requirement that the being be ‘human’ in the biological sense, and
the second is that the human must be ‘in being’ in that it can maintain its existence
independently from its mother.532
The point at which one achieves ‘Humanhood’ is measured differently by different
people and different branches of theological thought. While it is agreed between
theologians that it is the soul that vests a person, or prospective person, with God’s
image, the moment when one is ‘ensouled’ is subject for debate. The present Roman
Catholic belief is that human life begins at the moment of conception,533 but this has
not always been the case. Aquinas, perhaps the most well-known Christian scholar,
postulated the concept of ‘delayed hominisation’,534 which was affirmed as truth by
the 1312 Council of Vienne.535 This view contends that while life in the biological
sense begins at conception, human life in the sense of an ‘ensouled’ life begins after
530
http://www.linacre.org/elderly.html (accessed on June 13th 2011 at 13.14pm).
3 Co Inst 47.
532
This requirement raises questions regarding the personhood or Humanhood of newborns who are
maintained with life support after birth. However in-depth discussion of this debate is beyond the scope
of this thesis. For further discussion see Rachels J, The End of Life: Euthanasia and Morality (Oxford:
Oxford University Press 1985) chapters 1, 2, 4 and 5.
533
Heaney S, ‘Aquinas and the Presence of the Human Rational Soul’ 56 (1) The Thomist, reprinted in
Heaney S (ed), Abortion: A New Generation of Catholic Responses (Braintree, Massachusetts: Pope
John Center, 1992).
534
See for example, Ashley B, ‘A Critique of the Theory of Delayed Hominisation’, in McCarthy D G
and Moraczewski A S (eds), An Ethical Evaluation of Fetal Experimentation (St Louis: Pope John
XXIII Center, 1976); Ashley B, ‘Delayed Hominisation: A Catholic Theological Perspective’, in Smith
R E (ed), The Interaction of Catholic Bioethics and Secular Society (Dallas: Proceedings of the XIth
Bishops’ Workshop, 1992); Ashley B and Moraczewski A, ‘Is the Biological Subject of Human Rights
Present from Conception?’ in Cataldo P and Moraczewski A (eds), The Fetal Tissue Issue: Medical
and Ethical Aspects (Braintree, Massachusetts.: Pope John Center, 1994); Ashley B and Moraczewski
A (2001), ‘Cloning, Aquinas, and the Embryonic Person’, 1 National Catholic Bioethics Quarterly
189; Connery J, Abortion: The Development of the Catholic Perspective (Chicago Loyola UP, 1977);
Dombrowski D and Delete R, A Brief Liberal, Catholic Defense of Abortion (Urbana: University of
Illinois Press, 2000); Donceel J, (1967) ‘Abortion: Mediate v. Immediate Animation’, 5 Continuum 167
and; Donceel J, (1970) ‘Immediate Animation and Delayed Hominisation’, 31 Theological Studies 75.
535
Flinn F K and Melton J G, Encyclopaedia of Catholicism (Facts On File Inc 2006) at pg. 4.
531
138
birth; after 40 days in the case of boys, and after 60 for girls.536 Kuhse further
describes this quality:
‘Considered as immortal beings, destined for the extremes of
happiness or of misery, and united to one another by a special
community of redemption, the first and most manifest duty of the
Christian man was to look upon his fellow men as sacred beings and
from this notion grew up the eminently Christian idea of the sanctity
of human life…it was one of the most important services of
Christianity that besides quickening greatly our benevolent
affections it definitely and dogmatically asserted the sinfulness of all
destruction of human life as a matter of amusement, or of simple
convenience, and thereby formed a new standard higher than any
which then existed in the world…It was produced by the Christian
doctrine of the inestimable value of each immortal soul.’537
On this logic our ‘immortal souls’ are not our own to do with as we please. Because
of this, the ‘noble protecting human life ideal’538 stands even in the face of
debilitating disease, of babies that are hopelessly deformed and will never grow into
adults and of providing assistance to those who are dying and request help to end their
lives.
The MSB, in a similar vein to Young,539 argues that the religion-based540 concept of
sanctity affords life neither absolute, overriding,541 infinite nor intrinsic value. This
inference is based on concrete legal examples rather than esoteric concepts, and finds
its genesis in the fact that it is legally permissible to end life in certain ways and in
certain circumstances. Lawful self defence is the most obvious example. The case of
Owino542 holds that so long as the force used by the person defending himself is
reasonable and proportionate to the threat he faces he will not be guilty of an offence
should his attacker come to harm. By providing this mechanism the courts seek to
vindicate the innocent ‘defender’s’ actions in wounding his attacker. As a
536
Brock D W, Life and Death: philosophical essays in biomedical ethics (Cambridge: Cambridge
University Press 1993).
537
Kuhse H, (1987) op. cit., at pg. 17
538
Rachels J, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press 1985)
chapter 2.
539
Young R, (2007) op. cit., chapter 5.
540
The MSB is based upon secular, non-religious reasoning.
541
The overriding value of human life is the basis for the MSB’s argument in section 4.5 and will be
discussed there.
542
R v. Owino (1996) 2 Cr App R 128.
139
consequence it is impliedly recognised that the defender’s life, in life and death
situations where his attacker dies as a result of his proportionate defence of his
person, is more worthy of protection than the attacker’s.543
This is likely because, as Kuhse points out, innocent life, that of the ‘defender’ in the
self defence example, is seen to be deserving of protection where non-innocent, guilty
life is less so.544 Indeed, Leverick and Uniacke545 go so far as to postulate that the
attacker, ‘...by virtue of her conduct in becoming an unjust immediate threat to the
life of another...’546 forfeits her right to life entirely. While the MSB finds such
sweeping conclusions difficult to justify, especially with respect to the asymmetry of
the right to life between attacker and defender, it is safe to conclude that the worth of
a ‘guilty’ life is not commensurate with that of an ‘innocent’ one. One need only look
at the United States’ preservation of the death penalty for the worth of the latter to be
apparent. It is clear then that life’s value is neither infinite nor absolute. It can change
to reflect guilt or innocence, can be given a value in terms of QALY’s547 and, as will
be argued in section 4.3, can be valued subjectively by the person who possesses the
life in question as well as by society as a whole.
Moving on, the issue raised by both Young and the MSB regarding life lacking an
intrinsic value must be clarified. The idea of intrinsic value comes in two main forms
– that life is intrinsically valuable because people are ‘ensouled’ and created in God’s
image; and that which states life is valuable because with it comes a kind of dignity.
It is this secular notion of intrinsic worth that the MSB, along with Dupré’s article on
human dignity in European law,548 takes to be accurate, and it is this that section
4.2.1a will now discuss.
543
The range of literature on this topic is massive, and a thorough discussion of it is outside the scope
of this PhD. However, the following works are informative on the value of ‘guilty’ lives: Leverick F,
Killing in self defence (Oxford: Oxford University Press 2006); Uniacke S, Permissible Killing: The SelfDefence Justification of Homicide (Cambridge: Cambridge University Press 1994) and Kadish S H,
(1976) ‘Respect for Life and Regard for Rights in the Criminal Law’ 64(4) California Law Review 871
at pg. 882.
544
Kuhse H, (1987) op. cit.
545
Uniacke S, (1994) op. cit.
546
Leverick F, (2006) op. cit., at pg. 45.
547
Harris J, (1987) op. cit.
548
Dupré C, (2006) ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed
Opportunity?’ 6 European Human Rights Law Review 678. Discussed further in chapter 6 section 6.3
of this work.
140
4.2.1a Life’s intrinsic value – secular sanctity
While it may be the case that religious reasoning underpins many of the law’s edicts
regarding how human life is treated as inviolable, it does not give an exhaustive
account of life’s sanctity. In modern Western societies ‘sanctity’ and ‘sacredness’ and
their religious connotations have been transformed into secularised doctrines of equal
dignity for all citizens.549 These doctrines are the basis for what is often termed the
‘politics of universalism’,550 which insist upon equal basic rights and entitlements for
all citizens.
The Linacre Centre, in its Submission to the Select Committee of the House of Lords
on Medical Ethics, makes a similar argument in relation to life’s importance and the
inherent dignity of human beings with reference to the provision of justice. In this
work commentators like Dworkin and Warnock are taken to task for their espoused
belief that certain lives are more valuable than others. It is argued that such a premise,
‘…is a direct attack on the principle of the basic equality-in-dignity of human beings
(and) is radically subversive of justice’551 because it requires people to possess
‘…presently exercisable abilities in order to be counted subjects of justice, and
specifically to be counted among those entitled not to be killed intentionally without
just reason’.552 Such abilities are required if one is to find value and pleasure in what
one undertakes, or to have a life for which one is responsible and able to make
something out of; abilities which, according to Dworkin553 and Warnock,554 are
necessary for life to be of value to he or she who has it. On such logic, the Linacre
Centre argues, those lacking competence to make assessments of the quality of their
lives would be in danger of arbitrary euthanasia. The recognition of the inherent
dignity of human life is therefore paramount in upholding justice.
549
See
for
example
the
Universal
Declaration
of
Human
Rights.
http://www.un.org/Overview/rights.html (accessed on November 5th 2010 at 12.17pm).
550
See Young R, (2007) op. cit., and, Dworkin R, Life’s Dominion: An argument about abortion,
euthanasia and individual freedom (New York: Alfred. A. Knopf. 1993).
551
The Linacre Centre, Submission to the Select Committee of the House of Lords on Medical Ethics
(June, 1993) at para. 1.1.3(ii).
552
ibid., at para. 1.1.4.
553
Dworkin R, Life’s Dominion: An argument about abortion, euthanasia and individual freedom
(New York: Alfred. A. Knopf. 1993).
554
Warnock M, The Uses of Philosophy (Oxford: Blackwell Publishers 1992) at pg.2223
141
Central to both the Linacre Centre’s argument and to the idea of human dignity as a
whole is the concept of ‘life’, for the former is a quality of the latter. In the purely
biological sense ‘…“life”…like “zinc” and “entropy”…is an intrinsically neutral
descriptive term’.555 However, in the opinions of numerous scholars there is more to
life than the purely biological processes which allow the body to function.556 Apart
from them, though obviously facilitated by them and the consciousness they allow, is
a ‘personal’ life and it is this component of life as a whole to which dignity and
dignity’s inherent value is attributed.557 Rachels558 recognises this distinction and
posits that only lives that can be lived559 are ‘sacred’, or possessed of dignity, and
Aiken shares this opinion:
‘Life is not simply a matter of being alive in some purely biological
or biophysical sense of the term. Something can be alive or capable
of life in (this) sense yet not be (full of life or lively).’560
The MSB, while recognising that the value of individual human lives may vary, both
in subjective terms personal to the patient and in objective terms to the people valuing
the patient’s life, does not suppose that people who are not possessed of ‘presently
exercisable abilities’561 are of less value than people who do possess such capabilities.
It will be argued in section 4.3 that value accrues based on the patient’s appreciation
of what gives his life value, not on an objective list of capabilities which may or may
not be present in the patient. This is a decidedly more ‘instrumental’ or perceptionbased ethic than that espoused by the intrinsic value school of thought, and it is to
instrumentalism that this chapter now turns.
Aiken H D ‘Life and the Right to Life’ in Hilton B, Callahan D, Harris M, Condliffe P, and
Berkeley B, (eds) Ethical issues in human genetics: genetic counselling and the use of genetic
knowledge (New York: Plenum Press 1973) at pgs. 173-83.
556
See, Dworkin R, (1993) op. cit.,; Gormally L (ed), Euthanasia, Clinical Practice and the Law, (The
Linacre Centre 1994), and, Rachels J, (1985) op. cit.
557
The MSB in section 4.3 notes that all lives, when looked at objectively by society, are possessed of
sanctity, purely because they are what they are. However, it is also argued that the value of an
individual’s ‘personal life’ in the sense that Rachels and Aiken understand it, can only be rightly
estimated by the person himself.
558
Rachels J, (1985) op. cit., chapter 2.
559
The terms ‘zoe’ and ‘bios’ were used by the Greeks to distinguish between biological life and life as
lived respectively. This distinction is emphasised by James Rachels and William Ruddick in “Lives and
Liberty” in Christman J, (ed), The Inner Citadel: Essays on Individual Autonomy (New York: Oxford
University Press 1989).
560
Aiken H D, op. cit., at pgs. 173-83.
561
Gormally L, op. cit., at pg. 1983
555
142
4.2.2 Life’s Instrumental value
Those who subscribe to the ‘Instrumental Value’ school of thought, scholars like
Fletcher,562 Singer,563 Doyal,564 Harris565 and Rachels,566 believe that life does not in
and of itself justify its own continuation. Some kind of justification over and above
the intrinsic school’s reliance on inviolability as of right is required before a life is
deemed to have value enough for it to be worth saving if threatened, and that
justification comes from the capacity to ‘live’ one’s life. ‘Living’, to an
instrumentalist, involves the ability to find enjoyment and engagement with the
world, however slight and in whatever form, and to be able to autonomously pursue
more of that enjoyment.
Fletcher describes this requirement in terms of the need for a level of self awareness
commensurate with having what he calls a ‘personal life’, as opposed to a merely
‘human life’.567 All human beings, by virtue of simply being human, are possessed of
a ‘human life’, but only those who can live their lives are possessed of value. To live
one’s life, in Fletcher’s terms, is to express ‘Humanhood’, and this is characterised by
‘minimal intelligence, self-awareness, self control and mentation’.568 The loss of or
inability to express these characteristics vitiates the ‘elemental reverence’569
otherwise shown for life, and can justify its termination if the circumstances are
severe enough.
On this logic, a patient in a PVS who lacks any presently exercisable capacity to
engage with and draw enjoyment from his life might be a candidate for euthanasia, as
might a severely congenitally disabled neonate, or a person suffering intractably as a
562
Fletcher J, Humanhood: Essays in Biomedical Ethics (Buffalo, New York: Prometheus Books
1979).
563
Singer P, Practical Ethics (2nd edn Cambridge: Cambridge University Press 1993).
564
Doyal L, (2006) ‘Dignity in dying should include the legalisation of non-voluntary euthanasia’ 1
Clinical Ethics 65.
565
Harris J, (1985) op. cit.
566
Rachels J, (1975) op. cit.,; Rachels. J, (1985) op. cit.
567
Fletcher J, (1979) op. cit., at pg. 11.
568
Fletcher J, ibid., at pg. 85. Also see, Robitscher J ‘The Problems in prolongation of Life’ in
Biomedical Ethics and the Law (New York: Plenham Press 1976) at pg. 438
569
Kuhse H, The Sanctity of Life Doctrine in Medicine: A Critique (Oxford: Clarendon Press 1987)
quoting Georgina Harkness at pg. 16.
143
result of a terminal illness. Clearly, on its strictest understanding the Instrumental
Value school could be said to be permissive of the use of euthanasia in all cases
concerning ‘non-person persons’.570
The precise definition of a ‘non-person person’ depends on whose opinion is sought
on the matter. Fletcher for example would likely feel that a person without the ability
to exercise cognisance would fall into the ‘non-person’ category.571 Rachels may
expound the belief that someone who is unable to live his life due to incapacity
should be thus categorised.572 The MSB however is wary of speaking in these terms,
for they imply that certain human beings are less worthy of protection, or more likely
to be seen as part of a demographic who are suitable for having treatment withheld
than others. Beauchamp and Childress573 are of a similar opinion on this matter, and
express staunch opposition to any blanket policy which denies treatment to the
seriously ill, regardless of the intricacies of ‘personhood’. They are also firm in their
opposition to certain conditions, Downs Syndrome for example, being indicative of
non-treatment and emphasise that any decisions must be made in the patient’s best
interests and the MSB agrees with this view.574
Despite their support for non-voluntary euthanasia, Singer575 and Doyal576 stress that
the roles and opinions of the parents and loved ones of incompetent patients with
regard to decisions about euthanasia can never be precluded. Quality of life thinking,
warns Singer,577 cannot be used to justify involuntary euthanasia, because in that case
we cannot be sure if our judgement of the patient’s quality of life is accurate, or any
better in fact, than their own.
Williams G, ‘Euthanasia Legalisation: A rejoinder to the non-religious objections’, in Downing A B
(ed), Euthanasia and the Right to Death: The Case for Voluntary Euthanasia (London: Peter Owen
1969) at pgs. 134-147; Bliss M R, (1990) ‘Resources, the family and voluntary euthanasia’, 40 The
British Journal of General Practice 117. By the same token, some argue that euthanasia could be
practiced to relieve the relatives of the patient from the turmoil of having to witness their loved one’s
decline.
571
Robitscher J, ‘The Problems in prolongation of Life’ in Biomedical Ethics and the Law (New York:
Plenham Press 1976) at pg. 438.
572
Rachels J, (1985) op. cit.
573
Beauchamp T F and Childress J F, Principles of Biomedical Ethics (Oxford: Oxford University
Press 5th edn 2001) While falling short of condoning non-voluntary euthanasia, they also claim that it
can, at certain times, be ‘better not to treat an incompetent patient.’
574
Huxtable R, (2007) op. cit., pg. 17; Beauchamp T F and Childress J F, ibid., pgs. 138-139.
575
Singer P, (1993) op. cit., at pgs. 182-183.
576
Doyal L, (2006) op. cit.
577
Singer P, (1993) op. cit., at pgs. 200-201.
570
144
The MSB supports Singer’s belief in the danger of using instrumentalism to support
involuntary euthanasia. The imposition of objective estimations of life’s value on
patients incapable of making such estimations personally brings with it real
possibilities of mistakes being made on the grounds of best interests. Unlike the
comparatively restrictive view taken by Singer and Doyal, the MSB claims the use of
non-voluntary euthanasia to be equally troubling with regard to instrumentalism. It is
as much an imposition of objective approximations of life’s value upon another to
apply them to a person who has not been consulted as it is to apply them to one who
cannot comprehend them.
4.2.3 Choosing Life’s value
The idea that life’s value is self determined is an attractive one. Autonomy and
autonomous choice, notes McLean, ‘…have become the central and dominant
biomedical ethics principle(s) of the modern era, and (are) routinely protected by law
whenever possible.’578 Scholars like Brock,579 Doyal,580 Singer,581 Harris582 and
Biggs583 hold autonomy and its preservation as the backbone of their philosophy. As
Dworkin explains, ‘Making someone die in a way that others approve, but he believes
a horrifying contradiction of his life is a devastating, odious form of tyranny.’584
At law the protection of one’s autonomy only appears to reach to a certain point.585 If
one chooses to refuse life sustaining treatment, provided one is proved competent to
choose, that choice is respected. Yet when the exercise of one’s autonomy impinges
upon another’s, for example by asking one’s physician to assist in one’s suicide, such
578
Mclean S A M, Assisted Dying: reflections on the need for law reform (Abingdon: RoutledgeCavendish 2007) at pg. 31
579
Brock D W, Life and Death: philosophical essays in biomedical ethics (Cambridge: Cambridge
University Press 1993).
580
Doyal L, (2006) op. cit.
581
Singer P, (1993) op. cit.
582
Harris J, (1985) op. cit.
583
Biggs H, ‘I don’t want to be a burden! A feminist reflects on woman’s experiences of death and
dying’, in Sheldon S, Thompson M (eds) Feminist Perspectives on Health Care Law (London:
Cavendish 1998) at pgs. 279-295.
584
Dworkin R, (1993) op. cit., at pg. 217.
585
See sections 3.5 and 3.5.2 of chapter 3 of this work, and section 4.4 of this chapter for further
discussion on this issue.
145
help cannot be compelled of the person asked. Scope therefore is the argument’s main
flaw.
Those who oppose the argument in favour of allowing autonomous choices regarding
death maintain that the right of the patient to make the choice to die must be
counterbalanced against the interests of society as a whole and, more specifically,
patients with the same condition as he who chooses death. It is feared that if a patient
with, for example, multiple sclerosis makes the choice to have his or her life ended,
this choice will in some way stigmatise those sufferers who do not wish to die. There
are also concerns with balancing the right to choose to die with the rights of patients
who do not want to die, and who may be pressurised into saying they do.
Now that the various theses regarding the estimation of life’s value have been
explored, discussion can move onto this chapter’s first claim: that the value of life can
be estimated both objectively and subjectively.
4.3 Claim One: How the MSB values life
Unerringly, as was highlighted in sections 4.2 through 4.2.3 of this chapter, life has
SOME value no matter one’s philosophical or theological bent. The MSB takes from
each of the above schools of thought in stating its own position; the idea of life
having some kind of intrinsic value; experience-based value from the instrumentalist
point of view and that of autonomy from the arguments for personal choice.
It should be noted however that only select aspects of these points of view are
subscribed to. It is not the case that the MSB, in advocating life’s experiences as a
partial measure of value, goes on to posit that certain lives are worth more than
others. All human lives are of equal intrinsic value when looked at objectively,
simply because they exist and facilitate living.586 Rather, it is the value of those
experiences from the point of view of the person who goes through them which grants
life its worth. These events need not be grand to the objective observer, but to the
See Aiken H D ‘Life and the Right to Life’ in Hilton B, Callahan D, Harris M, Condliffe P, and
Berkeley B, (eds) Ethical issues in human genetics: genetic counselling and the use of genetic
knowledge (New York: Plenum Press 1973) at pgs. 173-83; Rachels J, The End of Life: Euthanasia and
Morality (Oxford: Oxford University Press 1985).
586
146
person who experiences them their value, and life’s value given that it is through life
that they are experienced at all, would be clear.
The same way a person can judge for himself the value of his life, so too can he
recognise when that life, in his eyes, has diminished in value. The value of life, in this
way, can be estimated in an instrumentally valuable subjective manner –
instrumentally valuable because it is the content of the life in question that is thought
to give that life value, and subjective because it is valued by the person, personally.
Describing the idea of subjective value in terms of ‘personal’ worth, Dworkin notes:
‘We treat a person’s life as subjectively valuable when we measure its value to him in
terms of how much he wants to be alive or how much being alive is good for him.’587
On Dworkin’s understanding, the ‘personal’ value of life and the ‘subjective’ value of
life are interchangeable, yet his definition seems to involve both objective and
subjective attributions of value: ‘when WE measure its value to HIM’. The MSB’s
understanding differs from Dworkin’s in this way. The value of life, this section
argues, is indeed personal. It is measured by the person whose worth is in question
and while ‘we’, the objective observers may well be able to attribute a value to his
life, it is not the objective estimation which gives that individual life its value. It is the
subjective view of the person concerned which affords life its worth, and this
estimation is one which should trump the idea that all life is inviolable when a person
decides to forfeit his.
The understanding that life may be valued both objectively and subjectively is not
unique to the MSB by any means. The courts, it is argued here, habitually allow
people to value their own lives, thus taking the subjective value as representative of
that person’s true worth, so long as they are not requesting active assistance in dying.
The cases of Re T588 and Re C589 support this conclusion, while the case of Bland590
shows that even an incompetent person can have his life’s value estimated as being
low enough to warrant the withdrawal of treatment. In such cases, the value of life is
impliedly less than the value of protecting the patient’s autonomy, expressed by the
587
Dworkin R, (1993) op. cit., at pgs. 71-73.
Re T (adult: refusal of medical treatment [1992] 4 All ER 649.
589
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; [1994] 1 All ER 819.
590
Airedale NHS Trust v. Bland [1993] 1 All ER 821.
588
147
patient himself or by the person who has been granted LPA under the Mental
Capacity Act (2005).
Where active assistance is requested or required however, such as it was in the case of
Dianne Pretty,591 the sanctity of life and questions of competence are routinely
invoked to explain why such assistance is denied. The courts therefore impose an
objective value upon the life of the person in question, one which is routinely
espoused by proponents of the sanctity of life as being overriding and ultimately
inestimable due to its magnitude. The implication here is that the quality of the
required assistance affects the perceived value of protecting the patient’s autonomy.
Quite apart from the situations of patients like C and T, the courts in cases where
active assistance is requested appear to value the patient’s life more highly than they
do the protection of his autonomy.
It is argued here that, by respecting the choice of a person seeking an omission of
treatment and denying it to one who seeks active assistance, the courts perpetuate a
dangerous double standard concerning respect for autonomous choices, especially
when the MSB’s refutation of the act/omission distinction is considered. Since the
ends and means of both acts and omissions are arguably equivalent, the respective
values of life and autonomy should likewise be the same, irrespective of the type of
assistance the patient needs.
This supposition encounters a problem from its inception however given that there is
staunch opposition, from Paterson most vocally, to the idea that the value of a
person’s autonomy can override that of his life in the way the MSB claims it can.
Section 4.4 is dedicated to exploring this conundrum, and on making a case for the
exercise of autonomy being of comparable value to that of one’s life.
4.4 Claim Two: Autonomy as a Primary good?
Disputing life’s ‘overriding’ value requires examining Paterson’s concept of the
‘goods’ of human life more closely than section 4.2 allowed. Recall that, ‘Primary
591
R. (on the application of Pretty) v. DPP [2001] UKHL 61; [2001] 3 WLR 1598.
148
goods...unlike secondary goods, are the purposes or goals in life that ultimately
inform and shape the content of all worthwhile human action.’592 They are taken to be
intrinsically valuable, that is valuable because they simply are what they are.
Secondary goods by contrast ‘...are goods that are not capable of being grasped as
fully intelligible ends of action to be pursued quite for their own sake.’593
Of ‘secondary goods’ Paterson feels it is counter-intuitive to say that: ‘...we can truly
value such preconditions (autonomy specifically; all ‘secondary goods’ in general) as
having intrinsic non-derivative value when we divorce them from the very content
and actions they enable.’594 He goes on to question:
‘Why is a person’s autonomy to be regarded as intrinsically good
when he or she uses that preconditional autonomy to gravely injure a
person or execute a profoundly self-destructive choice? If autonomy
is equally present in the making of worthwhile choice and the making
of profoundly harmful and destructive choices, then we are right to
question the claim that autonomy, valued just for its own sake, is a
primary good of persons.’595
This explains why the person in question would be stopped in his attempts to seek
medically assisted death. The value of his life, the intrinsically valuable primary
good, outweighs, in Paterson’s view, the protection of his autonomy, a secondary
good. If this is indeed an accurate description, the MSB, in claiming that autonomous
choice should, in cases concerning active assistance in dying, outweigh the sanctity to
life, is treading on tenuous ground.
On the face of it the relegation of autonomy to a facilitative role in the ‘goods’ sense
is commonsense. It is through the exercise of autonomy that people are able to make
decisions, weigh circumstances and apply their knowledge to them. Indeed, even the
omission of engagement with one’s surroundings, if one is fully competent, can be
seen as an exercise of autonomy – one’s autonomous choice not to interact. None of
592
Paterson C, Assisted suicide and euthanasia: a natural law ethics approach (Aldershot: Ashgate
2008) at pg. 55.
593
ibid., at pg. 55.
594
ibid., at pg. 58.
595
ibid., at pg. 58.
149
these facts unseat Paterson’s assertions regarding autonomy not being anything more
than a facilitator.
It is questionable, however, precisely what the phrase ‘autonomy’ refers to in
Paterson’s thesis. The MSB breaks the concept down into two forms; ‘autonomy’ in
and of itself, the attribute people who are mentally competent are possessed of, and
the ‘exercise of autonomy’, the putting to use of possessed autonomy. Each of these
forms is valued by the MSB in isolation from the possible consequences a person who
possesses and uses his autonomy may bring about through that exercise. Paterson on
the other hand assigns autonomy its status as a secondary ‘good’ on precisely that
basis. He comments: ‘The goodness of an autonomous choice or action will,
crucially, hinge on the pursuit of the objective to which autonomy is directed.’ Also,
recall his words from the above quotation:
‘...If autonomy is equally present in the making of worthwhile choice
and the making of profoundly harmful and destructive choices...we
are right to question the claim that autonomy, valued just for its own
sake, is a primary good of persons (emphasis added).’596
It appears that the potential for negative consequences being occasioned through an
autonomous choice, through the ‘exercise of autonomy’ as the MSB understands it,
impacts its status in Paterson’s mind. He also appears to refer to autonomy and its
exercise interchangeably, speaking of valuing autonomy for its own sake (above), yet
later noting: ‘...autonomy...facilitates and supports our pursuit of worthwhile
objectives.’597
This penchant for valuing autonomy with reference to possible consequences does not
sit well with the MSB’s understanding of the concept, nor does it make clear sense in
Paterson’s own work. He argues cogently on the one hand for the exercise of
autonomy being ascribed the status of a secondary good, but does not do the same for
autonomy itself. Perhaps the omission is a purposeful one, indicating that, unlike the
MSB, Paterson’s thesis does not take autonomy to have a dual meaning. This is an
596
597
ibid., at pg. 58.
ibid., at pg. 59.
150
uncomfortable conclusion however, given that he discusses the concept and utilises,
even if it is done unconsciously, both of the meanings recognised here.
The clearest conclusion ascertainable from Paterson’s work is that he feels that
autonomy, taking both of the meanings ascribed to it by the MSB, is a secondary
good and is therefore instrumentally valuable as a facilitative agent, not intrinsically
valuable in and of itself. The MSB agrees with this conclusion up to a point. It is
conceded that the possession of autonomy facilitates the pursuit of life’s greater,
primary ‘goods’. However, the exercise of autonomy is not equivalent to the
possession of it – a distinction, as noted above, that Paterson seems not to make.
Without the will and ability to exercise one’s autonomy there would be no way for a
person to act according to his thoughts and wishes in pursuing his aims in life, in
much the way Anthony Bland was unable to given his injuries. It is so intrinsically
important to one’s experience of the human condition that labelling it otherwise
makes little sense. It is also the case that one could not, logically, be said to possess
autonomy and not exercise it. Even if one does nothing, one autonomously decides to
do nothing. Thus, the MSB claims that the exercise of autonomy is a primary good,
and its possession is a facilitative or secondary good. Life, therefore, while it is still a
primary good, cannot simply override the exercise of autonomy when they come into
conflict, as it can under Paterson’s understanding.
This conclusion would be understandably unsteady if it was divorced entirely from
legal precedent. However, as the discussion in section 4.3 noted, the courts already
appear to ascribe differing values to life and autonomy depending on whether a
competent person is seeking active or passive assistance in dying. By allowing a
person to exercise his autonomy in deciding on a passive course of action that he
knows will end in his death, the court implies that the value of that person’s
autonomy outweighs that of his life. Such was the conclusion in the Bland case,
where the ‘...all-powerful interest of patient autonomy’598 was cited as reason enough
Airedale N.H.S. Trust v. Bland [1993] A.C. 789 at 892. The court, in using the phrase ‘all-powerful
interest of patient autonomy’ was not implying that there are no circumstances where the right to
autonomy could be overridden. It was acknowledging the right of the competent patient to refuse any
unwanted treatment, while restating the prohibition on requesting active assistance in dying.
598
151
to allow Bland’s physicians to withdraw all of the treatments keeping him alive. This
in turn implies that both life and the exercise of autonomy are primary goods.
Consequently their status cannot be relied upon to distinguish between cases where
treatment is refused or omitted and those where it is administered. This conclusion
supports the main supposition of the MSB, that the distinction between acts and
omissions is made on erroneous grounds, because it evidences further inconsistency.
If both life and autonomy are primary goods, there should be consistent reasoning,
outside of the act/omission distinction, as to why one is preferred over the other in
certain circumstances but not others.
4.5 Conclusion
The above discussion aims to make the case for autonomy and personal choice being
the backbone upon which end-of-life decision making should be based. Indeed it is,
so long as the person in question is refusing treatment, not requesting it. The MSB
recognises the innate ‘sacredness’ or ‘goodness’ or ‘sanctity’ of life. It recognises that
as an objective entity, society, quite apart from the person in question, may believe
that that sanctity affords life with infinite worth. That being so, it is proposed that that
‘sanctity’ exists quite apart from life’s value and should therefore not, as it often is,
be the basis upon which estimations of worth are based. In other words, one can
recognise the innate goodness of life as a whole, yet decide that one’s own has
diminished in value to such a degree that one wishes to end it.
If this construction of life’s value is taken as accurate, it is not prejudiced to note that
certain lives can, subjectively, be seen as less valuable than others. It is not the life in
and of itself that is less valuable than those of the rest of human kind; that is not a
judgement people other than the person in question can make. It is that person’s own
experience of living through that life, in his own mind, that affords his life its
subjective value. Rachels provides an example which makes the process of
subjectively valuing one’s life clearer.
‘If something is positively valuable because it contains certain
elements, and those elements are removed and not replaced by
152
anything equally valuable, then that thing is made less valuable as a
result.’599
As a measure of one’s subjective value, this construction works well. Revisiting ‘A’
and ‘B’ from section 1.1 of chapter 1 will assist understanding. This time they are
both patients suffering from motor-neurone disease. A does not feel his increasing
infirmity diminishes his experience of life. He was never one for sport or travelling
and is, but for his worry about his illness, happy to live his life until his natural death.
B however feels that his illness has robbed him of a great deal. He was a very active
man, enjoyed travelling and feels, now that his disease is progressing, as A’s is, that
his life has lost ‘certain elements…and (knows that) those elements…’ will not be
replaced. Neither man entertains thoughts of PAS or euthanasia, but B, whose
infirmity is equal to A’s, feels that his life is less valuable than it once was. His
decision, and the MSB as a whole, makes no assumption that the lives of patients
with motor-neurone disease are less valuable than others in the objective sense. It is
simply B’s personal opinion that his life has diminished in value.
Why then, to bring the chapter to a close, should a patient’s estimation of his life’s
worth and possible later decisions regarding the end of his life, trump society’s
objective belief that all life is inestimably valuable? It has been argued throughout
this chapter, and through chapter 1, that the courts already allow patients to value
their own lives in cases where passive means are utilised in effecting the desired end.
This fact, when taken in conjunction with the MSB’s understanding of Paterson’s
precepts, produces arbitrary results when contrasted with the courts’ denial of active
assistance to those who desire it, because both practices are seen as equal in their ends
and means. A patient’s estimation of his life’s worth should therefore trump society’s
proclamations of sanctity because the courts already allow him to value his own life.
This conclusion alone however cannot be taken as an adequate reason to reform the
law on assisted dying. There is a cacophony of legal and moral arguments made both
in favour of and against reform. Presently, chapter 5 will explore the arguments for
and against reforming the law from a legal perspective.
599
Rachels J, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press 1985) at pg.
65.
153
Chapter 5
Legal reasons for and against reforming the law
5. Introduction
This chapter’s goal is to draw conclusions as to the efficacy of reforming the law on
euthanasia and physician assisted suicide (PAS) from a legal perspective. Assisted
suicide by the non-medical practitioner is not tackled separately from PAS because
the quality of the acts in question is so similar as to make separate discussions
unwieldy and overly repetitious. Where context demands mentioning non-physician
assisted suicide, the following abbreviation will be employed: ‘AS’.
Five of the most encompassing legal arguments in favour of reform will form the
basis of the first half of the chapter. The first is concerned with the fact that currently
available Common Law defences are ineffective when applied to physicians who have
assisted a patient’s death through either active euthanasia or PAS. The second moves
on from this to discuss the proposition that formalising current legal mechanisms for
dealing with such cases may be an appropriate means of regulation, and the third
brings to light the current discrepancies evidenced between legal practices and
accepted ones.
The fourth and fifth arguments in favour of reform are marginally more esoteric than
the first three. The fourth focuses on the legality of suicide and the concurrent
illegality of PAS, and the fifth concerns the impact of the case of Purdy v. DPP600 on
the law on assisted dying. As to that regarding suicide, a case will be made that the
distinguishing features between PAS and suicide; the effect PAS is perceived to have
on the public at large; the involvement of a third party and the impact this has on both
the assistor’s and suicidee’s autonomy, do not present adequate reasons to maintain
the former’s illegality. That is not to imply that the MSB supports legalising AS
outright. The argument simply points out that the negative effects cited above do not
600
R (on the application of Purdy) (Appellant) v. Director of Public Prosecutions (Respondent) [2009]
UKHL 45.
154
present a compelling enough argument to negate the possibility of reforming the law
at all.
The fifth and final argument states that the House of Lords (HL) has made the need
for reform explicitly clear by ordering the promulgation of the Policy for Prosecutors
in Respect of Cases of Encouraging or Assisting Suicide (2010) in the upshot of the
Purdy601 judgement.
After these arguments in favour of reform have been explored, the chapter moves on
to focus on two of the most prominent arguments against it. The first will be that there
are at present less contentious ways of having one’s life shortened legally than
through active euthanasia and PAS. These alternatives are in fact part of common
medical practice, and render legislative intervention to reform the law pointless.
The second is the slippery slope argument, arguably the main source of opposition to
changing the law. This argument is so prominent a rebuke to the pro-reform lobby
that the remainder of the chapter will be devoted to discussing and evaluating it. The
numerous subsidiary, or non-slope, arguments in opposition to reform will be tackled
in chapter 6 as they, unlike the slippery slope, are not strictly legalistic in nature.
‘Slope’ based arguments have direct legal relevance as they imply that a liberalisation
of the law on voluntary euthanasia will, amongst other things, inevitably lead to at
least legal toleration of non-voluntary and involuntary euthanasia.
5.1 Current defences are ineffective
While it is true that there is a panoply of Common Law and statutory defences
available in the English criminal law, it is difficult to countenance that any of them
are truly applicable to cases involving euthanasia or PAS. Many of them, self defence
and intoxication, automatism and insanity, are so far off the mark that they do not
warrant extensive contemplation as a reason NOT to reform the law. Others, necessity
for example, are arguably more pertinent, but still lack specific relevance to cases
where a patient asks for assistance in dying to make them applicable in their current
601
ibid.
155
form602 and the same is true of the defences under the Homicide Act (1957). These,
while closer to the issues being dealt with, are also arguably inapplicable.
Take diminished responsibility (DR) for example.603 While it is certainly true that
doctors, like the rest of the population can suffer from mental problems which could
fall under the scope of this defence, claiming to have been labouring under such an
impairment for the moment one provided one’s patient with euthanasia or PAS is a
tenuous claim to make. DR is favoured by defence counsel in ‘mercy killing’ cases
because it allows them to allege that the stress and anguish caused by the defendant’s
situation drove them into depression and that this depression resulted in the fatal
act.604
It is argued here however that this reliance on mental abnormality precludes
practitioners from the defence’s ambit. The doctor patient relationship, whilst close, is
not comparable to that between family members. Consequently it would be very
difficult for a doctor to allege that his patient’s condition drove him into a state of
depression and that that state of depression precipitated his actions. Furthermore the
doctrine of double effect, discussed at length in chapter 2 of this work, is applicable in
cases of alleged euthanasia. Thus recourse to diminished responsibility would be
unnecessary.
The Homicide Act’s section 3 defence of Provocation is arguably as irrelevant in
cases of PAS and euthanasia605 as that in section 2. Williams notes this in her article
‘Provocation and Killing with Compassion’ which focuses on the defence’s
application to cases of mercy killing. She defines the concept in this way:
602
The possibility of necessity being used as a doctors defence in cases where assistance in dying has
been asked for by a patient will be explored in section 7.1.3 of chapter 7.
603
Section 2 of the Homicide Act (1957), as amended by the Coroners and Justice Act (2009) section
52(1), requires that: ‘(1) A person (“D”) who kills or is a party to the killing of another is not to be
convicted of murder if D was suffering from an abnormality of mental functioning which— (a) arose
from a recognised medical condition, (b) substantially impaired D’s ability to do one or more of the
things mentioned in subsection (1A), and (c) provides an explanation for D’s acts and omissions in
doing or being a party to the killing. (1A) Those things are— (a) to understand the nature of D’s
conduct; (b) to form a rational judgment; (c) to exercise self-control. (1B) For the purposes of
subsection (1)(c), an abnormality of mental functioning provides an explanation for D’s conduct if it
causes, or is a significant contributory factor in causing, D to carry out that conduct.’
604
As recognised in the case of Seers, depression is seen by the courts as an ‘abnormality of mind’ for
the purposes of section 2. Seers (1984) 79 Cr App R 261.
605
The Coroners and Justice Act (2009) amends the law on Provocation in sections 54 and 55,
replacing the section 3 defence with one concerning ‘loss of control’.
156
‘... ‘mercy killing’ refers to the act of procuring the death of a person
who has an incurable or intractably painful disease, by a family
member or friend for reasons of mercy or compassion. It does not
apply to professionals...’606
While it is conceded here that there may be parallels between the types of stress both
familial mercy killers and practitioners face in caring for the dying, it would be
unwise to extend the defence of loss of control to either.607 Much as is the case with
diminished responsibility, it would be problematic for defence counsel to allege that a
practitioner-defendant was so affected by the circumstances in which he found
himself that he was provoked into taking his patient’s life.
This difficulty is added to by the need for the provoking act to cause the ‘snap’ of self
control.608 While this work recognises that it is possible for a protracted period of
stress and torment to cause a defendant to react in the heat of the moment,609 it is less
comfortable to claim that a trained medical practitioner would suddenly snap after
repeated requests for assistance from a patient. The possible feelings of isolation
carers nursing ill relatives at home may feel is much less likely to affect doctors in the
institutionalised setting of the hospital ward, where the support and guidance of
colleagues is routinely sought. It is therefore felt that the defence of loss of control is
irrelevant in the circumstances faced by practitioners in euthanasia and PAS cases. It
relies on a sudden loss of self control, not one’s accession to a patient’s repeated
requests for assistance. Equally inapplicable is section 4 (participation in a suicide
pact) for there simply is no pact to participate in.
If those defences are set aside, there are no others even moderately applicable to cases
involving PAS and euthanasia. This fact supports the case for reform, especially in the
light of the moral step back’s (MSB) dismissal of the distinctions relied on to separate
permitted passive euthanasia from illegal active euthanasia and the doctrine of double
Williams G, (2001) ‘Provocation and Killing with Compassion’ 65 Journal of Criminal Law 149.
Williams’ work does not imply parity between the stress experienced by lay carers and practitioners
in caring for the dying.
608
See Wilson W, Criminal Law Doctrine and Theory (Longman: London 1998) at pg. 390; Smith
(Morgan James) [2000] 3 WLR 654 at 711, per Lord Millett.
609
See for example the cases of R v Thornton (No 2) (1996) 2 All ER 1023; R v Charlton (2003)
EWCA Crim 415; R v. Ahluwalia (1992) 4 AER 889 and R v. Humphreys [1995] 4 All ER 1008 at
1013, CA.
606
607
157
effect. Without those constructs and without reform there is no other recourse at law
but to deem the practitioners relying on them as guilty of their patients’ murders. A
possible avenue for effecting that reform would be to formalise the practices currently
performed lawfully. This option is the topic of section 5.2.
5.2 Formalise current practices
As chapter 1 demonstrated, the MSB claims that the current law is framed in such a
way as to allow ‘active’ steps to be taken in ending the lives of patients, under the
guise of ‘only’ omitting to treat or withdrawing treatment. So, the practices debated
and dismissed as dangerous by the BMA610 and by the general consensus of the
medical profession are arguably already going on, and they are going on without
official safeguards being in place. Proponents of reform, Otlowski611 perhaps most
prominently, argue on two fronts. Firstly, that regulation is needed in light of the fact
that the disputed practices occur without it, and secondly that there are discrepancies
between legal theory and practice that need to be bridged in order to retain the
cohesion that should be maintained between them.
5.2.1 Regulation
In their 1994 study, Ward and Tate612 distributed 424 questionnaires to medical
practitioners on the subject of attitudes towards requests for euthanasia. 312 of these
questionnaires were returned. The evidence collected showed that, of the 124
practitioners who had answered ‘yes’ to whether they had been asked for help in
ending a life, 119 complied. 38 of those 119 did so ‘actively’. Similar evidence can be
adduced from other jurisdictions showing that anywhere between 23% to 32% of
610
http://www.bma.org.uk/images/Euthanasia%20&%20PVS%20%20ARM%20discussion%20paper_t
cm41-146697.pdf (accessed on July 4th 2010 at 16:34pm); ‘The BMA Report on Euthanasia and the
Case Against Legalization’ in, Gormally L (ed), Euthanasia, Clinical Practice and the Law, (The
Linacre Centre 1994).
611
Otlowski M, Voluntary Euthanasia and the Common Law (Oxford: Clarendon Press 1997) at pg.
207.
612
Ward B J and Tate P A, (1994) ‘Attitudes among NHS doctors to requests for euthanasia’ 308 BMJ
1332.
158
those who responded, when asked if they had taken active steps to end a patient’s life,
did so affirmatively.613
Clearly, as Otlowski points out, ‘…euthanasia has been performed by a…number of
doctors.’614 Though it is true that the mere fact that the law is being broken is not an
adequate catalyst for legal change,615 there are inherent difficulties within the system
which calls for its re-evaluation. If active euthanasia is being performed, it must be
done covertly to assuage the risk of legal sanctions. This truth is evinced in the case of
R v. Cox616 (the doctor relying on double effect having administered a lethal dose of
potassium chloride to his patient) where the jury relied on an evidential technicality
regarding the exact cause of the patient’s death to save Dr Cox from a murder
conviction. The illegality of euthanasia and the resultant need for actions to be taken
covertly if they are taken at all, results in little opportunity for consultation between
colleagues, or regulation.617
It has also been noted by Verhoef and Kinsella618 that even when fellow doctors
become aware of their colleagues’ involvement in the practice, they are likely to
maintain secrecy and not report them to the legal authorities. Decisions are most
likely made on the participating physician’s own conscience and his or her
willingness to run the risks of being caught and prosecuted.619 If one takes this value
judgement in the light of the paternalistic nature of the medical profession, it may
result in a situation where euthanasia is being performed by a doctor on the basis of
what he or she believes to be the patient’s best interests; a step along the proverbial
Kuhse H and Singer P, (1988) ‘Doctors’ Practices and Attitudes Regarding Voluntary Euthanasia’
148 Medical Journal of Australia 623, at pg. 624: 29% of those who responded to the questionnaires
had actively assisted a patient to die. Baume P and O’Malley E, (1994) ‘Euthanasia: Attitudes and
Practices of Medical Practitioners’ 161 (2) Medical Journal of Australia 137 at pg. 140. This study,
which utilised the same questionnaire as that by Kuhse and Singer, received a 28% positive response to
the question regarding assistance in dying.
614
Otlowski M, (1997) op. cit., at pg. 207.
615
Grisez G and Boyle J M, Life and Death with Liberty and Justice: A Contribution to the Euthanasia
Debate (Notre Dame: University of Notre Dame Press 1979) at pgs. 214-250.
616
R v. Cox (1992) 12 BMLR 38.
617
Grisez G and Boyle J M, (1979) op. cit., at pg. 146.
618
Verhoef M and Kinsella T, (1993) ‘Alberta Euthanasia Survey: 2 Physician’s Opinions About the
Acceptance of Euthanasia as a Medical Act and the Reporting of Such Practices’ 148 (11) Canadian
Medical Association Journal 1929 at pgs. 1931, 1932.
619
Quill T E et al, (1992) ‘Care of the Hopelessly Ill: Proposed Criteria for Physician Assisted Suicide’
327 New England Journal of Medicine 1380 at pg. 1383.
613
159
slippery slope towards non-voluntary and involuntary euthanasia.620 This is clearly
diametrically opposed to the idea of self-determination and the requirement of
voluntariness in the practice of euthanasia.
As noted above, the essence of the proponents’ argument is that since the practice
occurs already, it is preferable to have it regulated by legislation and practiced openly
in order that it can be effectively regulated.621 Reform would also promote an open
discussion of the topic. It would provide physicians who do seek to assist patients in
ending their lives with a lawful avenue to do so, removing the need for secrecy and
covert unregulated actions which have a greater propensity for inciting abuse than
their regulated counterparts.
5.2.2 Discrepancies between ‘legal’ practices and ‘accepted’ practices
Furthermore it is claimed that irrespective of the evidence that some doctors have
performed euthanasia,622 it is highly unlikely in view of the precedent surrounding
such cases that prosecution would follow, and that even if it did it would be highly
unlikely that the doctor would be found guilty. This precedent has been borne out
through numerous cases,623 mostly focused on the doctrine of double effect, the only
conviction being that of Dr Cox624 for his part in the death of his patient Lillian
Boyes. From this premise Somerville625 argues that the practice is tolerated by the law
despite its perceived illegality – hence the discrepancy between what appears to be
accepted practice and the same actions being considered illegal.
As the Cox626 case shows however, there is no guarantee that prosecution will not
follow should a case be taken to court. In fact the nature of the current legal position
See for example the findings of Stevens C and Hassan R, (1994) ‘Management of Death, Dying and
Euthanasia: Attitudes and Practices of Medical Practitioners in South Australia’ 20 Journal of Medical
Ethics 41.
621
Otlowski M, (1997) op. cit., at pg. 208; Levisohn A, (1961) ‘Voluntary Mercy Deaths’ 8 Journal of
Forensic Medicine 57 at pg. 69: Institute of Medical Ethics, Discussion Paper ‘Assisted Death’ (1993)
336 The Lancet 610, at pg. 611.
622
Otlowski M, (1997) ibid.
623
See for example: R v. Adams [1957] Crim. L.R. 365 and R v. Moor [2000] Crim. L.R. 31.
624
R v. Cox (1992) 12 BMLR 38.
625
Somerville M, (1993) ‘The Song of Death: The Lyrics of Euthanasia’ 9 Journal of Contemporary
Health Law & Policy 41 at pgs. 42-43.
626
R v. Cox (1992) 12 BMLR 38.
620
160
invites, as Otlowski puts it ‘...capricious and arbitrary results.’627 Consequently it is
felt by proponents to be unsatisfactory that doctors acting in good faith are exposed to
the risk of prosecution. They therefore argue that it is in the best interests of both
physicians and their patients that the law is changed to promote clarity.
Despite the seeming cogency of the arguments in favour of clarifying the law in this
area, arguments have also been made in opposition to legislating to overcome the
disparity.628 Some commentators, the Archbishop of Westminster included,629 are
wary of the negative impact such reform could have on the macro or societal level,
and this has been cited as reason enough to err away from the idea. In his recent
article ‘The notion of a right to a ‘good death’ undermines society’, published in the
Telegraph, the Archbishop takes exception to the idea that ‘…we have an absolute
moral entitlement to have whatever kind of death we choose.’630 He blames this
burgeoning philosophy on what he sees as the degradation of societal values,
‘…including the decline of the family as the core unit, the rise of
anti-social behaviour, the pursuit of profit at all cost and the
increasing intolerance of non-materialist, philosophical or ethical
views.’631
He also fears that, ‘Once life is reduced to the status of a product, the logical step is to
see its creation and disposal in terms of quality control’.
However, while the argument is a valid one with respect to the need to guard against
involuntary and non-voluntary euthanasia, the fact that human beings are autonomous
creatures capable of making choices as to how they wish to live, and ultimately how
they wish to die, appears to have been glossed over in the text. The same is true of the
fact that the law at present, by permitting personal self-regarding suicide,632 allows a
627
Otlowski. M, (1997) op. cit., at pg. 209.
Somerville M, (1993) op. cit., at pgs. 42-43.
629
http://www.telegraph.co.uk/comment/personal-view/5845658/The-notion-of-a-right-to-a-gooddeath-undermines-society.html (accessed on 17th July 2009 at 11:54am).
630
ibid.
631
ibid.
632
Callahan D, (1989) ‘Can We Return Death to Disease?’ 19 (1) Hastings Center Report 4-6. Section
3.5.1 of chapter 3 of this thesis explores Callahan’s reasoning, as does section 5.3.2 of the present
chapter. The limits of this permissive approach have also been discussed in sections 3.5.1 and 3.5.2 of
chapter 3, as have possible reasons for maintaining the prohibition on AS and euthanasia.
628
161
person to value his own life and act to end it should he so wish.633 Consequently, it is
arguable that the right the Archbishop fears will do damage to society appears to have
already been legally realised, and has remained realised since 1961. 634 The step along
the slippery slope has long been taken, and has produced negligible negative effects.
The coming section will take this assertion a step further by exploring the dichotomy
between AS and suicide, with a view to making the case that the differences between
the practices highlighted in section 5 of this chapter do not present adequate grounds
for maintaining the former’s illegality.
5.3 The legality of suicide and the concurrent illegality of assisted suicide
Section 1 of the Suicide Act (1961) (hereinafter ‘the Act’) decriminalised suicide and
attempted suicide, while section 2(1), as amended by the Coroners and Justice Act
(2009)(CJA), maintains AS’s illegality. The dichotomy between the legality of suicide
and the illegality of assisted suicide is curious because, unlike anywhere else in the
criminal law, one can be guilty for assisting the commission of a non-crime. Before
discussing this issue it is necessary to outline the newly reformed scope of section
2(1) and comment on the effect Purdy v. DPP635 has had on it.
5.3.1 Scope, the Coroners and Justice Act and Purdy v. DPP636
Section 3(3) is the Act’s extent provision and works to inform those who use the Act
of the scope of its application. The section states “This Act shall extend to England
and Wales only”. Its roots rest in the Common Law presumption that criminal
sanctions are not imposed on British citizens for crimes committed outside of the
jurisdiction, except in cases of murder. Without this section, as Lord Phillips points
out in the case of Purdy v. DPP, it appears that:
See chapter 4, section 4.3 of this work for the MSB’s understanding of how the value of life should
be ascertained.
634
That is not to imply the existence of a legal right to commit suicide or a right to die. This issue will
be explored in section 5.4.
635
R (Purdy) v. DPP (2009) EWCA Civ 92.
636
Sections 5.4.1 through 5.4.4 discuss the decision in Purdy.
633
162
“…a person who assisted another to commit suicide abroad, whether
the assistance took place within this jurisdiction or outside it, (would
be) guilty of murder...”637
His Lordship’s reasoning was based on an ‘inclusionary’ approach to statutory
interpretation – reasoning first applied by Lord Diplock in Treacy v. DPP638 and
subsequently adopted by the Court of Appeal (CA) in Smith (Wallace Duncan) (No
4).639 In Treacy Lord Diplock argued that the ambit of the English criminal law
should only be limited by principles of “international comity”. This idea was praised
by some commentators, but, points out Hirst, ‘...if comity was the only such
limitation, British citizens would be punishable in England for any acts abroad that
would be punishable in England, and this is manifestly not the law.’640 Hirst himself,
and later Lord Diplock, whose thoughts on an inclusionary approach changed in
Secretary of State for Trade v. Markus,641 favours the ‘terminatory principle’ of
criminal liability. This states that a crime is deemed to be committed where its last
essential element is completed. In cases of assisted suicide like those considered in the
Purdy case, the suicide would take place in Switzerland, well outside the jurisdiction
of the English courts.
Lord Phillips however took Hirst’s thesis a step further than its author intended it be
taken. Section 3(3) of the Act, mentioned above, limits its application to England and
Wales. While no clear direction as to the effect the Purdy case would have on interjurisdictional liability was given in the ratio of the judgment, obiter Lord Phillips
interpreted section 3(3) to imply that section 1 of the Act, the assurance that suicide is
no longer a criminal offence, only extends to England and Wales. Hence he concluded
that suicide committed abroad must still be regarded as self-murder, and complicity to
murder (to assist in a person’s suicide abroad) must therefore be punishable as
murder. As a result Hirst’s thesis is extended beyond boundaries it was never intended
to cross.
637
R (Purdy) v. DPP (2009) EWCA Civ 92.
Treacy v. DPP [1971] A.C. 537 at 561.
639
Smith (Wallace Duncan) (No 4) [2004] EWCA Crim 631; [2004] QB 1418.
640
Hirst M, (2009) ‘Assisted Suicide after Purdy: The Unresolved Issue’ 12 Criminal Law Review 870
at pg. 874.
641
Secretary of State for Trade v. Markus [1976] Crim. L.R. 276.
638
163
With respect to Lord Phillips’ thoughts on Purdy and the inclusionary and terminatory
principles, the MSB mirrors Hirst’s opinion in feeling his Lordship’s interpretation of
section 3(3) was incorrect. The section itself, as noted above, is an example of an
extent provision. Such provisions are not, as Lord Phillips took 3(3) to be, used to
impose any territorial limitation on the ambit of the various provisions of the Act. ‘So,
when section 1 abrogated liability for committing or attempting to commit suicide, it
did so for all purposes in English law, but only for the purposes of English law.’ 642 A
comparison between section 3(3) and the extent provisions of other statutes makes his
Lordship’s error more clear. Section 313 of the Merchant Shipping Act (1995) for
example states:
‘Except for sections 18 and 193(5), this Act extends to England and
Wales, Scotland and Northern Ireland.’
British merchant ships still sail all around the world. The Act would not be practical
to use if its application ceased as soon as a vessel left UK waters. Indeed it includes
several provisions that apply specifically to events or acts abroad. Section 282 for
example reads:
‘(1) Any act in relation to property or person done in or at any place
(ashore or afloat) outside the United Kingdom by any master or
seaman who at the time is employed in a United Kingdom ship, if
done in any part of the United Kingdom, would be an offence under
the law of any part of the United Kingdom, shall –
(a) be an offence under that law, and
(b) be treated for the purposes of jurisdiction and trial, as if it
had been done within the jurisdiction of the Admiralty of
England.’
There is no contradiction with s. 313 here, because it is not concerned with the
subject-matter of the Act or the circumstances or places in which it applies. Its
function is merely to indicate that the Act is law within Scotland and Northern
Ireland, as well as within England and Wales. The same is true if sections 15(5) and 1
of the Outer Space Act (1985) are contrasted. The former provides, ‘This Act extends
to England and Wales, Scotland and Northern Ireland.’ But section 1 provides:
642
Hirst M, (2009) op. cit., at pg. 872.
164
‘This Act applies to the following activities whether carried on in the
United Kingdom or elsewhere...(including)...(c) and activity in outer
space.’
Lord Phillips then appears to have confused the concepts of extent and application,
the former being narrower than the latter in terms of scope. That said, the Suicide
Act’s provisions are not so obviously framed as those of the Merchant Shipping Act
and the Outer Space Act. His Lordship’s misgivings are also only comments made
obiter and, given the radical changes implicit in the now enacted CJA (2009),
discussions regarding the Act’s scope for application are somewhat academic.
The newly reformed section 2(1) of the Suicide Act reads as follows:
‘(1) A person (‘D’) commits an offence if –
(a) D does an act capable of encouraging or assisting the suicide
or attempted suicide or another person, and
(b) D’s act was intended to encourage or assist suicide or an
attempt at suicide.
(1A) The person referred to in (1)(a) need not be a specific person
(or class of persons) known to, or identified by, D.
(1B) D may commit an offence under this section whether or not a
suicide, or an attempt at suicide, occurs.’
In terms of the effect this change has on Hirst’s conjectures on jurisdiction, the main
one is the substitution of a ‘conduct crime’ (doing an act capable of encouraging or
assisting suicide) for a ‘result crime’ (aiding, abetting, counselling or procuring the
suicide or attempted suicide of another). This is explored in Hirst’s work in the
following example:
‘...A cannot be complicit in the suicide or attempted suicide of B
unless and until B actually commits or attempts to commit suicide. If
this suicide occurs abroad, then under the terminatory principle of
jurisdiction...A’s act of complicity is deemed to be located abroad as
well; and since the (Suicide) Act contains no provision to give s. 2(1)
extraterritorial effect, it does not apply to such a case.’643
643
ibid., at pg. 870.
165
Clearly A would become guilty of an offence under the new section 2(1) merely by
encouraging B to commit suicide, or by providing assistance for that purpose, even if
no act of suicide or attempted suicide then results. Turning this outcome onto Ms
Purdy’s situation makes it clear that, should her husband help her to reach the airport
and board the plane for Switzerland, he will at once have committed an offence under
the new section 2(1). There is no longer any need to moot matters of jurisdiction
because the entire offence is committed in England and Wales. In view of this
outcome it would be advisable for Ms Purdy to rely on the Guidelines her case
compelled the Director of Public Prosecutions (DPP) to promulgate in planning her
future with respect to a possible journey to Dignitas, made possible with her
husband’s aid. It would be unlikely however, given the complete lack of prosecutions
in cases of AS, that prosecution would follow.644
5.3.2 The PAS/suicide dichotomy
Using the legality of suicide as a basis for reforming the law on euthanasia and/or
PAS must be cautiously approached. To do so, some kind of equivalence would need
to be found between two practices that, as noted in section 3.5.2 of chapter 3,
Callahan has already distinguished on the basis of the impact the latter has on the
general public.645 The MSB, in the same section, argued that this distinction is only
accurate insofar as the person who commits suicide alone is not directly assisted by
another member of the public. He is however, like the assistor in a case of PAS or
euthanasia, a member of the public, as are the members of his family, and his death
would affect them whether he was assisted or not. On this logic the MSB argues that
this effect does not provide sufficient reason to maintain PAS’s illegality.646
If the effect PAS has on the public at large can be dismissed, as it is here, as an
appropriate argument against reforming the law, and thus make the case for reform
644
http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/6170602/Chief-judge-LordPhillips-admits-to-sympathy-for-assisted-suicides.html (accessed on 11th March 2010 at 13:56pm).
645
Callahan D, (1989) op. cit., at pg. 6. Paterson defines suicide and assisted suicide, ‘...(suicide may
be defined as) an action (or omission) informed by the intended objective, whether as an end itself or as
a means to some further end, that one’s bodily life be terminated...The term ‘assisted suicide’ attempts
to classify the role played by a third party in the suicide of another person.’ Paterson C, Assisted
suicide and euthanasia: a natural law ethics approach (Aldershot: Ashgate 2008) at pg. 7. Also see
section 3.5.2 of chapter 3 of this work.
646
ibid., at pg. 6.
166
that little bit stronger, it remains true that the presence of the assistor and the character
of his assistance precipitate numerous considerations regarding the legality of his
interactions with the suicidee. That most applicable here is the argument concerning
both persons’ autonomy. Proponents of assisted dying note, based on an ascriptive use
of the phrase autonomy, that all persons have the freedom to make important choices
for themselves, unfettered by social proscriptions.647 ‘This...sense of autonomy
grounds the claim for a ‘right’648 to assisted suicide by guaranteeing an individual’s
freedom to enlist assistance in his suicide.’649 This understanding applies to both the
suicidee and his prospective assistor, and neither, as section 3.5.1 pointed out, is
bound to participate in the procurement of the death – the assistor can refuse, and the
suicidee can change his mind at any time.650
Opponents of this point of view, Safranek for example, attack the use of autonomy to
try and justify legalised PAS651 by claiming that proponents who base their support
for the practice on autonomy are, in fact, advocating an action that destroys the basis
of autonomy entirely. They are, in effect, sanctioning the renunciation of the same
fundamental good that they seek to protect, an act which Mill claimed to violate the
good itself and thus erase the basis for protecting it in the first place.652
At face value this argument seems logically convincing. Death, as far as it is possible
to know, erases all traces of autonomy from the deceased person. As such, advocating
a practice which results in the destruction of the very quality one argues is being
protected by that practice is an obviously circular argument. The MSB, while
recognising this circularity, does not take it as reason enough to discount PAS
entirely. As chapter 1 section 1.4.1 of this work made clear, one can autonomously
choose to have one’s life ended if one’s methods for procuring death are passive.
Since the MSB argues that passive and active procurement are equivalent in their ends
and means, it is already the case that a person can request assistance from another in
647
See for example, Raz J, The Morality of Freedom (Oxford: Oxford University Press, 1986) at pg.
370.
648
It is important to point out that nowhere in either this work or in English law is such a right
mentioned, outside of dismissing it as inappropriate.
649
Safranek J P, (1998) ‘Autonomy and Assisted Suicide: The Execution of Freedom’ 28 (4) Hastings
Center Report 32 at pg. 33.
650
Section 3.5.1of chapter 3 and 6.1 of chapter 6 of this work echo this sentiment.
651
Safranek J P, (1998) op. cit.
652
Mill J S, On Liberty (Filiquarian Publishing LLC 2006) at pg. 172.
167
ending his life in the manner that Mill notes would destroy his autonomy. The
argument is therefore negated, as it protests a state of affairs that is already accepted
as appropriate. Furthermore, the fact that suicide, an act which destroys one’s
autonomy just as completely as PAS would, remains legal despite this fact draws the
MSB to conclude that there must be some other aspect of the suicide/PAS distinction
that perpetuates the latter’s illegality.
Section 3.5.1 of chapter 3 of this work postulated that it is the impingement made on
the assistor’s autonomy in being asked to procure another’s death that forms at least
part of the reasoning behind why the courts are uncomfortable with respecting a
patient’s request for active assistance in dying.653 This reasoning is based in part on
Mill’s harm principle, a philosophical construct which can be applied to the
suicide/PAS distinction to explore why the former is legal and the latter not.654
The harm principle states that a person’s autonomy can only be restricted if the act he
wants to perform harms another.655 Oliver Wendell Holmes Jr expressed this
sentiment succinctly when he noted that, ‘The right to swing my fist ends where the
other man’s nose begins.’656 Committing suicide is therefore not prohibited because of
the lack of involvement of a third party; in Holmes’ terms there is no nose to hit with
one’s punch but one’s own. PAS however, dependant as it is on the assistance of a
third party, falls foul of Mill’s principle because the assistor is affected by his
becoming involved in procuring the death.
Distinguishing between the practices on this basis however is suspect. While it is clear
that instances of PAS can be set apart from personal self-regarding suicide by the
presence of the third party, it remains the case that one can receive ‘passive’
assistance in dying, which itself requires the assistance of a third party, without issue
if one is competent.657 As the cases of Re C,658 Re T659 and Re JT,660 discussed in
Another possible motivation would be the fear that the patient’s request has been coerced.
See section 6.1 of chapter 6 of this work for a discussion on the harm principle’s impact on
autonomy.
655
Mill J S, On Liberty (Filiquarian Publishing LLC 2006) at pg. 78.
656
Holmes’ adage is referred to in Frohnen B P and Grasso K L’s book, Rethinking rights: historical,
political, and philosophical perspectives (Columbia: University of Missouri Press 2009) at pg. 5.
657
That is not to imply that the MSB argues that these withdrawals of treatment should be treated as
instances of PAS or euthanasia. Such would only be the case if the patient requested the withdrawal
with the express intention of dying as a result.
653
654
168
section 3.5.1 made clear, requesting that one’s treatment be either stopped or never
begun at all, even if death will occur as a result of the omission, is recognised as
proper both legally and medically.661 This permissiveness implies that requesting an
omission does not impinge upon the autonomy of the physician who goes on to effect
it. As such, the request and its actuation should not be subject to censure.
If though, as section 1.4.1 alleges, actions and omissions are equivalent in their ends
and means, their impact on the physician’s autonomy would likewise be equivalent.662
It should be the case, this section concludes, that based on this alleged equivalence,
both ‘active’ and ‘passive’ means of procuring death should be dealt with similarly by
the courts. The current law, in perpetuating the legality of one form of assistance
(allowing the withdrawal of treatment) but labelling the other illegal, is making a key
distinction groundlessly and is allowing the impingement of patient autonomy by
denying access to perceived ‘active’ modes of assistance while allowing ‘passive’
ones.
This impingement is all the more contestable when the fact that both the physician
and the patient himself are autonomous persons is considered. Neither can rightly
impose their views upon the other regarding assisted dying and, as section 3.5.1 of
chapter 3 of this work pointed out, both are well within their rights to refuse to be a
658
Re C(Adult Refusal of Medical Treatment) [1994] 1 WLR 290; [1994] All ER 819.
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649.
660
Re JT (Adult: Refusal of Medical Treatment) [1998] 1 FLR 48.
661
When asked about her thoughts on the withdrawal of useless treatment Doctor 4 said, ‘What we’ve
always tried to do with that is base such things such as the withdrawal of food and sustenance on
medical grounds. Is this actually doing any good. Secondly will the person actually suffer if I withdraw
the medication. Now I mean sort of examples we have commonly in our practice is withdrawal of
antibiotics. A patient who is terminally ill gets a chest infection…they may have had multiple
infections before. We either decide not to give antibiotics or to withdraw them if they’re not doing any
good. By that you could say that that is actually hastening the death. The other of course most
commonly is the withdrawal of fluids. And I think our practice on the ward is if the patient is alert and
conscious enough to actually suffer and feel that they have thirst and dryness, we will leave it up. But
what usually happens is the drip tissues as we call it, and we’re in a situation where it actually causes
more distress to actually put the needle back in. Now that’s a slightly different situation from people
who have a more chronic illness and you’re actually withdrawing the food knowing that that will take
their life. There’s a case in Italy isn’t there…there was the one fairly recently and…that I…perhaps I
should sort of wriggle out of this one here and say, well it would depend on the individual case, you
know, I was stuck at the time. If a person had a condition such that they had no reasonable chance of
responding or coming round, and if I felt that withdrawing the food would not be of any harm, and
looking at the bigger picture…the patient probably having bed sores and all that, the effects on the
family and whatever, I would give it my due attention and consideration.’
662
This supposition applies to every kind of omission of treatment but for instances where treatment
has never been begun. Pure omissions of this kind, as section 1.4.1 made clear, cannot be reconciled
with the MSB’s reasoning.
659
169
party to it if they do not wish to be. Thus, given the equivalence of active and passive
modes of assistance, and the ability of the physician to refuse his aid if he does not
wish to be a party to PAS, maintaining the illegality of ‘active’ assistance in dying on
the basis of a foreseen danger to the physician’s autonomy is questionable at best.
This conclusion however does not lead the MSB to allege that there is a right, implied
by the legality of suicide and the permissibility of ‘passive’ assistance in dying, to
request that assistance or to have such a request honoured. Indeed the case of R (on
the application of Pretty) v. DPP663 made it clear that there is no legal right to die.
What can be safely implied from the above discussion however is the need, in light of
the already highlighted inconsistencies in the active/passive distinction in cases
concerning assisted dying, for reform to be effected to the law.664 This assertion is not
one which the MSB makes without jurisprudential support. The coming sections will
focus on the case of Purdy v. DPP,665 the catalyst for likely the most far-reaching
judgement in the history of cases concerning end of life decision making and AS. The
court, through this case, has heavily implied the need for reform to be effected to the
law and began the process by instructing the DPP to promulgate Guidelines on how
he approaches cases of alleged AS.666 These Guidelines were published as the ‘Policy
for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide’ on February
25th 2010.
Before approaching the Purdy case however, the context surrounding it and the case
which arguably played the biggest role in laying the groundwork upon which Ms
Purdy began her campaign, R (on the application of Pretty) v. DPP and Another,667
must be explored.
663
R (on the application of Pretty) v. DPP and Another [2001] EWHC Admin 788.
See Narveson J (ed), Moral Matters (2nd edn Toronto & New York: Oxford University Press 1999).
665
R (on the application of) Purdy v. Director of Public Prosecutions & Another [2008] EWHC 2565
at 9.
666
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010).
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed on May 7th
2011 at 13.42pm).
667
R (on the application of Pretty) v. DPP and Another [2001] EWHC Admin 788.
664
170
5.4 The backdrop to the Purdy case: Pretty and the right to die
Mrs. Pretty was a victim of motor neurone disease. By the end of her life she would
be unable to swallow and would be in a great deal of pain. The right to die group
working with her wrote to the DPP asking him to undertake that he would not consent
to a prosecution against Mr Pretty if he aided and abetted her death. In refusing to do
so the DPP relied on section 3 of the Prosecution of Offences Act (1985) as that
which regulates his duties and stated that he could only function under section 2(4) of
the Suicide Act once a crime had been committed.
In the High Court (HC) and House of Lords (HL) hearings Mrs Pretty’s arguments
were set out clearly. She alleged, firstly, that the DPP’s refusal to undertake that he
would not prosecute her husband for assisting her suicide, and secondly that section
2(1) of the Suicide Act (1961) was incompatible with the ECHR and/or alternatively
that applying section 2(1) was a breach of Articles 2, 3, 8, 9 and 14 of the ECHR. As
to the first ground, the judges in the HC and the HL felt that, because of the
prescriptive nature of the DPP’s role, Mrs Pretty was in effect asking him to promise a
pardon or dispensation in advance. Granting either of these was felt to be beyond the
DPP’s powers.
The second ground, incompatibility of section 2(1) with Articles 2, 3, 8, 9 and 14 of
the ECHR, proposed that the section in question imposed a blanket ban on all assisted
suicides. This was argued as incompatible with the ECHR and/or that the DPP, as a
public authority which had refused to give the undertaking, had acted incompatibly
with a convention right under section 6 of the Human Rights Act (1998). In both the
HC and the HL, it was held that section 2(1) was not incompatible with the relevant
ECHR provisions and that for the same reasons given in dismissing the first ground,
the DPP had not acted incompatibly with section 6(1) in refusing to give his
undertaking.
The alternative second ground, that section 2(1) breached articles 2, 3, 8, 9 and 14 of
the ECHR, was equally dismissed by both the HC and the HL. Article 2 was not
infringed, according to Lord Bingham in the HL, because it supported a right to life
171
and not death;668 Article 3 because the DPP’s refusal not to prosecute did not fall
within the negative prohibition of the Article.669 Article 8 was not breached because
while it protects the right to autonomy of a living person, it does not extend to the
right to choose to shorten life. Similarly Article 9 was not breached because Mrs
Pretty’s belief in the virtue of assisted suicide could not require that her husband be
absolved from offending.670 Article 14 was not infringed for three reasons: Firstly
because Mrs Pretty’s argument that the Article was discriminatory because it
prevented the disabled, but not the able-bodied, from exercising their right to commit
suicide, relied on a misconception that the law confers a right to commit suicide,
which it does not. Secondly, Article 14 is not ‘free standing’; it has effect only in
relation to other Convention rights, so if they are not breached, then neither is Article
14; and thirdly, section 2(1) of the Suicide Act (1961) does not treat people in a
discriminatory manner because it applies to all equally.671
A similar position was taken by the ECtHR as regards the first argument put forward
by Mrs Pretty. The DPP’s refusal was held not to be disproportionate, arbitrary or
unreasonable bearing in mind the seriousness of what was being proposed.
As to the second argument, like the two UK courts, the European Court held that
section 2(1) was not incompatible with and neither infringed nor violated any of the
challenged ECHR articles. Article 2 was not breached because the right to life does
not include a right to death;672 Article 3 was not because it imposed no positive
obligation on the state to give the undertaking not to prosecute;673 Article 8 was not
because the state’s prohibition on assisted suicide was held to be ‘necessary in a
democratic society’ for the protection of the rights of others under Article 8(2).674
Article 9 was not violated because Mrs Pretty’s belief in assisted suicide did not come
within those beliefs protected by the Article.675 Finally her challenge to Article 14
failed because the court found there was sufficient justification for not distinguishing
668
R (on the application of Pretty) v. DPP and Another [2001] EWHC Admin 788 at para. 5.
ibid., at para 14.
670
ibid., at para. 31.
671
ibid., at paras 35 and 36.
672
ibid., at para 40.
673
ibid., at para 56.
674
ibid., at para 78.
675
ibid., at para 82.
669
172
between those who could and those who could not physically commit suicide. The
UK’s blanket ban on AS was therefore held to be a proportionate response with which
to satisfy legitimate government interests.
5.4.1 From Pretty to Purdy
Seven years after Dianne Pretty lost her case, Debbie Purdy, a victim of Multiple
Sclerosis (MS) began her own. Ms Purdy explained her predicament as follows:
“…My wish is to be able to ask for and receive assistance to end my
life, should living it become unbearable for me…My husband has
said he would assist me and if necessary face a prison sentence, but I
am not prepared to put him in this position for a number of
reasons…I want to avoid the situation where I am too unwell to
terminate my life. I want to retain as much autonomy as
possible…This decision is of my own making…”676
Ms Purdy knows that eventually she will wish to bring her suffering to an end by
committing suicide. However, she wishes to live for as long as possible, and to end it
only when it becomes utterly unbearable. Unfortunately, as her condition deteriorates
it will become harder and harder for her to end her own life without assistance. By the
time she would wish to take her own life it may well be impossible for her to do so.
Thus, Ms Purdy and her husband Mr Puente face what Lord Judge CJ called ‘an
impossible dilemma’.677 The law on assisted suicide is clear and does not make
exceptions, regardless of the motives which may compel Mr Puente’s actions or Ms
Purdy’s determination to lead as normal a life as possible for as long as she is able.
As much as the circumstances of the Purdy and Pretty cases are similar, Ms Purdy has
taken a different tack. With the support of Dignity in Dying and her solicitors she
wrote to the DPP suggesting that it seemed he had a policy not to prosecute and
requesting him to publish any such policy. Alternatively (in the event that no such
policy existed) they requested that he promulgate a policy setting out criteria for the
676
R (on the application of) Purdy v Director of Public Prosecutions & Another [2008] EWHC 2565 at
6.
677
ibid., at 9.
173
exercise of his discretion under section 2(4) of the Suicide Act (1961),678 in particular
cases where a relative or friend assists a person to travel abroad to a country where
assisting a suicide is not a criminal offence. In his reply dated January 14 th 2008 the
DPP stated that:
‘There is no such policy; and indeed, as you will be aware from the
judgement of the HL in the Dianne Pretty case, any such policy –
which would amount to a proleptic grant of immunity – would be
unlawful. As Lord Bingham said, ‘It would have been a gross
dereliction of the Director’s duty and a gross abuse of his power had
he ventured to undertake that a crime yet to be committed would not
lead to prosecution.’679
The letter went on to state that the only policy which the DPP applies is that set out in
the Code for Crown Prosecutors applicable to the prosecution of all alleged offences,
that none of his public policy statements “…sets out circumstances in which a
prosecution should never be brought for a given offence…” and that he had no plans
to issue further guidance in relation to policy for the offence of assisted suicide.680 Ms
Purdy issued her claim for judicial review challenging the DPP’s refusal to disclose
his policy, or alternatively his failure to promulgate such a policy. She sought a
mandatory order requiring the DPP to promulgate and/or disclose his policy in
relation to the circumstances in which he will or will not consent to a prosecution
under s. 2(4) of the Suicide Act (1961).
5.4.2 The decision of the Divisional Court
The court identified three interconnected issues. The first was whether Ms Purdy’s
rights under Article 8(1) of the ECHR were engaged. That question was further
broken down into enquiring whether, first, the right to choose the manner of one’s
own death fell within the scope of Article 8(1). This involved an analysis of Mrs
Pretty’s case in the HL and ECtHR to see whether the decision of the latter was
inconsistent with that of the former. Second, if there was an inconsistency, whether
Section 2(4) of the Suicide Act (1961) states: ‘no proceedings shall be instituted for an offence
under this section except by or with the consent of the Director of Public Prosecutions.’
679
R (on the application of) Purdy v. Director of Public Prosecutions & Another [2008] EWHC 2565
at 12.
680
ibid.
678
174
the court should follow the European decision or whether it must faithfully follow the
HL. And third, if Ms Purdy had an Article 8 right, did the ban on assisted suicide in s.
2(1) of the Suicide Act (1961) constitute an interference with that right?
If Article 8(1) was engaged, the second issue was whether the prohibition on AS met
the requirements of Article 8(2) of the Convention requiring it be in accordance with
the law. Mrs Purdy’s case was that the obligation could only be fulfilled if the DPP
issued a public statement of policy identifying the criteria he would take into account
in exercising his discretion to consent to prosecution under section 2(4) of the Act.
Scott Baker LJ and Aikens J (as he then was) concluded that the HL in Pretty had
held that Mrs Pretty’s rights under Article 8 were not engaged at all because the right
to private life related to the manner in which a person conducts his life, not the
manner in which he departs from it. There was nothing in Ms Purdy’s case to make it
distinguishable in that regard.
The Divisional court reflected on the wording of the ECtHR at paragraph 67 of the
Pretty judgement that provided: ‘The court is not prepared to exclude that this
constitutes an interference with her right to respect for private life as guaranteed under
article 8(1) of the Convention…’ and concluded that this wording was “slightly
curious” and “a good deal less firm than holding categorically that it would be an
interference”. It felt that it was possible that the decision covered beneath it differing
opinions about the ambit of the rights under Article 8(1), and further concluded that:
‘…On the face of it there is some doubt whether the court
definitively concluded that article 8(1) was engaged or whether the
court decided to proceed on the assumption that it was, but
determined the case by its conclusion that there was compliance with
article 8(2).’681
The court declared itself bound by the HL in the face of the uncertainty, and rejected
the submission that the facts of the case were sufficiently serious to fall within the
exceptional circumstances in which a court is entitled to apply the European Court’s
decision rather than that of the HL. As a result of this reasoning it was decided that
Article 8(1) was not engaged on the facts of the Purdy case.
681
ibid., at 39.
175
Furthermore, the court concluded that the Code of Practice for Crown Prosecutors
promulgated by the DPP under s. 10 of the Prosecution of Offences Act (1985) was
sufficiently clear and precise to provide the minimum degree of protection against
arbitrariness. It was also held that the combination of the Code of Practice and the
administrative law principles and remedies developed by the Common Law satisfied
the required Convention standards of clarity and foreseeability. Regardless of this
however, the court gave leave to appeal.
5.4.3 The decision of the Court of Appeal
Lord Pannick QC, counsel for Ms Purdy, identified three issues. Firstly; the question
of Article 8(1) being engaged or not; secondly, whether the CA was bound by the
decision of the HL or that of the ECtHR in Pretty on the applicability of Article 8(1);
and thirdly, in the absence of a published policy by the DPP stipulating criteria by
reference to which he will decide whether to consent to a prosecution against an
individual who assists a suicide,682 is s. 2 of the Suicide Act (1961) in accordance
with the law?
Ms Purdy’s real objective in bringing her case to court was to gain clarification of the
law regarding her husband’s liability were he to assist in her suicide. Since it is his
liberty which would be threatened if he did assist her, it may be wondered why focus
was placed upon Ms Purdy’s Article 8(1) rights and not Mr Puente’s. The answer may
be found in the case of R v. United Kingdom683 in which the Applicant had been
convicted and sentenced to imprisonment for aiding and abetting a suicide. He
complained that his conviction and sentence under s. 2(1) of the Suicide Act (1961)
constituted a violation of his right to respect for private life under Article 8. The
Commission noted:
“The Commission does not consider that the activity for which the
applicant was convicted, namely aiding and abetting suicide, can be
described as falling into the sphere of his private life…While it
682
In particular where the assistance is in making arrangements to travel abroad for the purposes on an
AS which is lawful in the country where it occurs.
683
R v. United Kingdom (1983) 33 DR 270.
176
might be thought to touch directly on the private lives of those who
sought to commit suicide, it does not follow that the applicant's
rights to privacy are involved. On the contrary, the Commission is of
the opinion that the acts (of) aiding, abetting, counselling or
procuring suicide are excluded from the concept of privacy by virtue
of their trespass on the public interest of protecting life, as reflected
in the criminal provisions of the 1961 Act.”684
As such, Mr Puente’s rights were not engaged. Pannick QC’s argument for Ms
Purdy’s rights under 8(1) being engaged was that she was asserting that her right to
autonomy and self-determination permitted her to decide how and when to end her
own life so that suffering and indignity could be avoided. The fear of her husband’s
prosecution was an impediment to the exercise of that right for it affected her freedom
of choice. As a result, this was an interference with her right which needed to be
justified under Article 8(2).685
The CA in Purdy ruled that, through consideration of the discussions in Pretty at both
the HL and European levels, the decision of the ECtHR was clearly inconsistent with
that of the HL. Furthermore, Lord Judge made it clear at paragraph 54 of the
judgement in Purdy that:
“We have come to the conclusion that their Lordships intended to
give the CA very limited freedom, only in the most exceptional
circumstances, to override what would otherwise be the binding
precedent of the decision of the House.”686
It was concluded that “The decisions of the European Court do not bind us. The
decisions of the House of Lords do.”687 To try to circumvent the HL on the basis of
the jurisprudence of the European Court would be “…productive of considerable
uncertainty…”688 Thus confined to the HL’s decision in Pretty, the CA could not but
hold that Ms Purdy’s Article 8 rights were not engaged.
684
ibid., at 13.
This ‘libertarian principle’ of self-determination (so described by Lord Goff in Re: F (Mental
Patient: Sterilisation) [1990] 2 AC 1, 73D and referred to again with approval in Airedale NHS Trust v
Bland [1993] AC 789, 864) was expressed by Cardozo J. in Schloendorff v. Society of New York
Hospital (1914) 105 NE 92, 93 in these terms: ‘Every human being of adult years and sound mind has
a right to determine what shall be done with his own body …’.
686
R (on the application of) Purdy v. Director of Public Prosecutions & Another [2008] EWHC 2565
at 54.
687
ibid., at 54.
688
ibid., at 54.
685
177
5.4.4 The decision of the House of Lords
The HL decision in Purdy was released on the 30th of July 2009. In substance it ran
almost completely counter to the ratio of the CA and concluded that the DPP had to
promulgate guidance for the court in cases concerning possible AS. In coming to this
decision numerous points of argumentation were discussed, one of the main ones
being whether a British national could be prosecuted for assisting a suicide outside of
the English jurisdiction. Lord Philip’s decision is instructive on this matter. He began
by noting:
‘In my view there is a strong presumption that the offence created by
section 2(1) of the 1961 Act was intended to ensure that, in those
circumstances where committing suicide and the attempt to do so
were decriminalised by section 1, assisting suicide remained a
criminal offence. It seems unlikely that Parliament intended, in an
Act whose primary purpose was to decriminalise suicide and
attempted suicide, to widen the scope of the offence of assisting
suicide.’689
From this grounding and having given a nod to Hirst’s theory on extraterritorial
culpability,690 he went on to note that as a general rule English criminal law does not
extend to acts committed outside of the jurisdiction except in cases of murder.
However, section 3(3) of the Suicide Act effectively muddied the jurisprudential
waters. It provides ‘This Act shall extend to England and Wales only.’691 Discussing
the Act’s ambit Lord Philips made the following observations:
‘The ambit of section 2(1) should logically, in my view, be the same
as the ambit of section 1. Plainly suicide ceases to be an offence
when committed in England and Wales. It follows that assisting
suicide, when the act of assisting and the act of suicide take place
within England and Wales, is an offence under section 2(1).’692
689
ibid., at 3.
Hirst M, (2009) op. cit. See section 5.3.1 of this chapter for a discussion of Hirst’s work on
extraterritorial liability.
691
The Suicide Act (1961) section 3(3).
692
R (on the application of) Purdy v. Director of Public Prosecutions & Another [2008] EWHC 2565
at 12.
690
178
Equally section 1 of the Act ‘does not apply to suicide committed outside England
and Wales.’693 If suicide were treated as murder, so that assisting it was also murder
under the abovementioned exception, a British subject who:
‘...accompanies a relative, who is also a British subject, to
Switzerland and assists in Switzerland the relative to commit suicide
with help from Dignitas, who will under English law commit the
crime of murder and will be subject to the jurisdiction of the courts
of England and Wales in relation to that offence.’694
That being said however it was held at para 13 that situations like Ms Purdy’s, where
assistance is rendered in the UK with the intention of facilitating travel abroad to
Switzerland for AS, are a moot point in respect of whether section 2(1) applies to
reduce the murder to an AS. “Logically it seems [to Lord Philips] that it should not,
but plainly considerations of legislative policy would weigh the other way.”695
In an attempt to escape this conclusion, the case of R v. Burgess (1862) was cited.
Pollock CB in that case made it clear that:
‘...attempting to commit suicide is not attempting to commit murder
within that statute. If it were, it would follow that anyone attempting
to commit suicide by wounding himself must be indicted for the
offence of wounding with intent to commit murder, which until very
recently was punishable with death.’696
This however, according to Lord Philips, only serves to further evince the uncertainty
surrounding the current law on the scope and application of the law on AS. He
concludes on this issue, ‘The uncertainty is a further reason for the need for a more
specific published policy on the part of the Director.’697
In his judgement Lord Hope came to similar conclusions on the scope of the law on
AS. He noted at paragraph 18 of the judgement that the language of section 2(1) is
indicative of liability accruing for acts of the types Lord Philips described, done in
693
R ibid., at 12.
ibid., at 12.
695
ibid., at 13.
696
R v. Burgess (1862) Le. + CA. 257at 262.
697
R (on the application of) Purdy v Director of Public Prosecutions & Another [2008] EWHC 2565 at
16.
694
179
England and Wales, even if the AS itself occurs in Switzerland. Plainly stating Ms
Purdy’s quandary he went on to posit:
‘...All that having been said it is plain, to put the point at its lowest,
that there is a substantial risk that the acts which Ms Purdy wishes
her husband to perform to help her to travel to Switzerland will give
rise to a prosecution in this country...’698
Although his Lordship’s remarks were obiter, it is prudent here to reiterate the MSB’s
position regarding them. It appears that Hirst’s work has been taken a step further
than its author intended it to be by Lord Phillips’ judgement. To Hirst, as section 5.3.1
made clear, criminal actions that take place outside of England and Wales are
punishable in the jurisdiction they take place within. As such an AS which takes place
in Switzerland, as Mrs Purdy’s will, if ever she decides to go to Dignitas, would not
be criminally punished in England and Wales because the offence itself took place in
a jurisdiction both outside of the ambit of the English criminal law, and in a country
where the contested actions are lawful.
Since the promulgation of the CJA (2009) however, the possible debate surrounding
Lord Phillips’ appreciation of Hirst’s thesis will remain purely academic. As section
5.3.1 noted, the Suicide Act section 2(1) has been amended by the CJA with the effect
that what was once a result crime (an assisted suicide being committed once the death
has occurred) is now a conduct crime (the result of the assistance, death, no longer
being required for prosecution). Referring this change’s effects back to Mrs Purdy’s
situation, it appears that her husband will commit an offence as soon as he does an
action which is capable of encouraging or assisting her suicide. The suicide itself need
not take place for the offence to be committed. Applying Hirst’s terminatory principle
to the current law no longer saves Mr Puente from prosecution because the offence
under section 2(1) will take place in England and Wales, long before Mrs Purdy ends
her life in Switzerland.
This somewhat confusing conclusion, while supporting Lord Philips and again
making it clear that additional clarity is required, was not the main sticking point in
the judgement however. At paragraph 39 Lord Hope conclusively reversed the CA’s
698
ibid., at 25.
180
ruling on Article 8’s application to the case, and distinguished Purdy from the case of
Dianne Pretty, by stating:
‘I would therefore depart from the decision in R (Pretty) v Director
of Public Prosecutions (Secretary of State for the Home Department
Intervening) [2002] 1 AC 800 and hold that the right to respect for
private life in article 8(1) is engaged in this case.’699
This ruling evidences a lack of clarity in the law, which the Lords felt had grievous
enough effects upon people like Ms Purdy to warrant clarification. Paragraphs 43 and
54 make this abundantly clear:
‘This (section 2.4 of the Suicide Act 1961) is where the requirement
that the law should be formulated with sufficient precision to enable
the individual, if need be with appropriate advice, to regulate his
conduct is brought into focus in this case.’700
‘The Code will normally provide sufficient guidance to Crown
Prosecutors and to the public as to how decisions should or are likely
to be taken whether or not, in a given case, it will be in the public
interest to prosecute...But that cannot be said of cases where the
offence in contemplation is aiding or abetting the suicide of a person
who is terminally ill or severely and incurably disabled, who wishes
to be helped to travel to a country where assisted suicide is lawful
and who, having the capacity to take such a decision, does so freely
and with a full understanding of the consequences. There is already
an obvious gulf between what section 2(1) says and the way that the
subsection is being applied in practice in compassionate cases of that
kind.’701
An attempt at providing such clarification has been made by the DPP following Mrs
Purdy’s case. The publication of the new CPS Guidelines on Assisted Suicide702 has
been met with mixed feelings both academically and publically. The coming section
will discuss these reactions and the Guidelines themselves.
699
ibid., at 39.
ibid., at 43.
701
ibid., at 54.
702
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010).
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed on May 7th
2011 at 13.42pm).
700
181
5.5 The DPP’s Guidelines on Assisted Suicide
The Guidelines on AS were published in February 2010 amidst a flurry of contrasting
opinions. The following quotations evidence just a handful, and expose the polarised
viewpoints so often characteristic of the euthanasia and AS debate:
‘...I am still overwhelmed and delighted by this victory...Because I
know the likely consequences of any decisions I choose to make
about my death, I won’t have to make those decisions early.’703 –
Debbie Purdy
‘We do not support any weakening of the protection offered under
the law on assisted suicide, which is exactly what these new
Guidelines do...Many disabled people are frightened by the
consequences of these new Guidelines and with good reason...’704 –
Richard Hawkes, chief executive of disability charity Scope
‘The fundamental problem remains that the law needs to be changed
by Parliament. The Law Lords have essentially ruled that our
existing law on assisted suicide is far too wide...No guidelines will
ever be able to distinguish, with the clarity needed, between
compassionate assistance to relieve terminal suffering of competent
adults and wicked assisted suicide of the mentally ill...’705 – Evan
Harris, Liberal Democrat MP
‘The new policy effectively decriminalises assisted suicide in a wide
range of circumstances...’706 – Paul Tully, of the anti-euthanasia
group SPUC Pro-Life
Turning to these select opinions first, it is curious how Ms Purdy, author of the first
quotation feels that the promulgation of the Guidelines was a victory. While it cannot
be denied that her cause in seeking a measure of procedural clarity in the law on AS
has been successful to a point, there remain a great many areas of confusion and
conjecture within the Guidelines themselves, and how the current law will work
through them. Indeed as section 5.3.1 mentions, the CJA (2009) has had the effect of
making any burgeoning assistance rendered by an ‘assistor’ punishable as AS under
703
http://www.timesonline.co.uk/tol/news/uk/article7040908.ece (accessed on April 3rd 2010 at
18.13pm).
704
ibid.
705
ibid.
706
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010).
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed on May 7th
2011 at 13.46pm).
182
section 2(1) of the Suicide Act (1961). Whether or not the changes brought by the
CJA will adversely affect the application of the Guidelines has yet to be seen through
case law, though its enactment is an interesting legislative happening given its
proximity to the Guidelines’ promulgation. The law on AS under the CJA appears to
have been widened considerably, the substitution of a result crime for one committed
by conduct alone, while the Guidelines provide specific grounds which will be taken
into account in negating a prosecution under the Suicide Act (1961). Thus, through
the CJA, there is a legislative widening of the bases for culpability concurrent to the
publication of policy which restricts the apportionment of culpability for the same
crime. If nothing else this state of affairs highlights a possible inconsistency between
legislative reform and the DPP's Policy.
Whether or not, in light of this confusion, Mr Hawkes’ views in the second quotation
are accurate is again a matter of debate. Paragraph 1 of the Guidelines makes it clear
that AS remains a criminal offence, and paragraph 5 notes that the Purdy judgement
did not effect a change to the law in that area. That said, the deciding factor in
determining culpability under the Guidelines is the presence or absence of
‘compassion’ – a matter of motive which has never explicitly played a role in English
criminal law before now. How the courts will handle proclamations of blamelessness
from future defendants in AS cases based on such a subjective approximation is
unclear. Andrew Copson, a member of the British Humanist Association notes on this
issue:
‘The Guidelines attempt to do in part what Parliament has thus far
failed to, and that is to distinguish between where a person has
compassionately assisted another to die, and where that was done
with malicious intent or murder...’707
Mr Copson is unclear as to his opinion on whether the Guidelines succeed in their
aim, but there are areas of clarity where there was little before that can rightly be
gleaned from certain of the sections. The most helpful in this regard is that concerning
‘Public interest factors tending in favour of prosecution’. Using its precepts, it is
possible to construct a profile of the ‘perfect’ offender – someone for whom
prosecution under the Guidelines is almost assured. This profile will then be
707
op. cit., n. 673.
183
contrasted with one for the ‘perfect’ innocent ‘assistor’. The comparison will aid in
evaluating the Guidelines in the conclusion of this section.
5.5.1 The ‘perfect’ offender
Under the Guidelines, points 43(1) through (16) and 44 cover the characteristics that
will tend towards prosecuting a person for AS as defined by section 2(1) of the
Suicide Act (1961). The ‘perfect’ offender will meet some if not all of the following
descriptions.708
The offender works in collusion with organisation like Dignitas,709 which provides a
physical environment in which people may commit suicide. He is either a medical
doctor, nurse, member of the medical profession, a professional carer (paid or not) or
member of another profession, like the prison service, and the victim was in his care
at the time of the suicide.710 He may be little more than a webmaster who provides
information on suicide on his website or via some other publication.711 The victim
need not be personally known to him.712 If he did personally know his victim, the
suicidee would likely have been an incompetent minor,713 who had not expressed any
views on or wishes for AS in the past.714 The offender will have pressured715 his
victim into acceding to AS or committing suicide for reasons that were not wholly
compassionate.716 He will have a history of violence towards the victim717 and will
have assisted him even though the victim was physically able to commit suicide
alone.718 He may have been paid for these services,719 and may have provided them
708
Not all of the descriptions utilised in the discussion can exist together. For example, it would not be
possible for a person to not know the victim, yet have a history of violence towards him.
709
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010) points 43(12)
and 43(13) of the ‘Public interest factors tending in favour of prosecution’ section. op. cit.
710
ibid.
711
ibid.
712
ibid.
713
ibid.
714
ibid.
715
ibid.
716
ibid.
717
ibid.
718
ibid.
719
ibid.
184
for more than one person in the past.720 He may also have known the victim intended
to commit suicide in a public place.721
This description, contradictory in places as it may seem, represents the sum of the
criteria under points 43(1) through 43(16) of the Guidelines on AS. A thorough
evaluation will take place after the ‘perfect’ innocent assistor is detailed in the next
section, but preliminary issues come to light without need for this further exposition.
The inclusion of the medical profession in the criteria is interesting, especially in light
of the MSB’s conclusions regarding the correct descriptions of ‘passive’ activities that
result in death and its protestations over the doctrine of double effect. If the MSB is
accurate then not only do the Guidelines scrutinise medical practitioners who procure
death pursuant to a request for PAS, but by implication they cast doubt on the legality
of practices which are currently completely lawful – the practice of ‘passive’
euthanasia for example; the withdrawal of treatment at a patient’s request and the
cessation of life sustaining treatment in cases where patients are in PVS. While it is
recognised here that these latter practices are not considered PAS, it is not impossible
to infer suspicion on the practitioners involved in them, especially given the
Guidelines’ explicit mention of their profession in point 14.
Points 43(2) and 43(3) further muddy the waters surrounding common medical
practice by highlighting situations where the patient in question is not competent and
has made no mention of his or her feelings on suicide in the past. They read:
‘...the victim did not have capacity (as defined by the Mental
Capacity Act 2005) to reach an informed decision to commit
suicide...’
‘...the victim has not reached a voluntary, clear, settled and informed
decision to commit suicide...’
Again it is not insinuated here that common clinical practice, where a patient is
incompetent and has reached no settled opinions on how his or her life should end, is
intrinsically comparable to cases of PAS. Indeed the concept of best interests operates
720
721
ibid.
ibid.
185
well in such circumstances. Whether or not this same concept needs to be taken into
account under the Guidelines is a moot point. It currently appears nowhere in the text.
It is also clear from points 43(12), 43(13) and 43(16) that there is considerable disdain
for organisations like Dignitas being used to procure assistance in dying. Those
sections respectively proclaim:
‘...the suspect gave encouragement or assistance to more than one
victim who were not known to each other...’
‘...the suspect was paid by the victim or those close to the victim for
his or her encouragement or assistance...’
‘...the suspect was acting in his or her capacity as a person involved
in the management or as an employee (whether for payment or not)
of an organisation or group, the purpose of which is to provide a
physical environment (whether for payment or not) in which to allow
another to commit suicide.’
How such obvious disdain will affect cases like Mr Puente’s, should Ms Purdy ever
decide to avail herself of Dignitas’ services in the future, is as yet unclear. Precedent
from cases where the 'victim' has availed himself/herself of those services with the
assistance of relatives strongly suggests that it is unlikely that a prosecution will
occur. That said, it is hoped the factors against Mr Puente's prosecution would far
outweigh those in favour should he ever have to face a trial.
5.5.2 The perfect ‘innocent’ assistor
Points 45 through 48 describe the ‘Public interest factors tending against prosecution’.
Under them, the ‘perfect innocent assistor’ takes on something like the following
appearance. He was wholly motivated by compassion722 to assist a ‘victim’ who had
reached a voluntary, clear, settled and informed decision to commit suicide.723 His
actions, though enough to come within the definition of the offence, were ‘minor’724
and ‘reluctant’.725 He has tried to dissuade the ‘victim’ from committing suicide,726
722
ibid.
ibid.
724
ibid.
725
ibid.
726
ibid.
723
186
and he did so at a sufficiently proximate time to the ‘victim’s’ suicide for his efforts to
have had some kind of effect.727
‘Compassion’, mentioned in points 43(6), 44 and 45(2) of the Guidelines is the
fulcrum upon which liability turns. Without a purely compassionate motive the
assistor is highly likely to be convicted of AS. Importantly, the concept of
‘compassion’ is not defined in the Guidelines proper, so its meaning and implications
for the current law must be gleaned from elsewhere. Arguably the most appropriate, if
equally limited, guidance can be found in the Swiss law on AS. Articles 114 and 115
of the Swiss Penal Code, in force since 1942, state:
'A person who, for decent reasons, especially compassion, kills a
person on the basis of his or her serious and insistent request, will be
sentenced to a term of imprisonment (Gefängnis).'
‘A person who, for selfish reasons, incites someone to commit
suicide or who assists that person in doing so will, if the suicide was
carried out or attempted, be sentenced to a term of imprisonment
(Zuchthaus) of up to 5 years or a term of imprisonment (Gefängnis).’
The use of the concept of compassion in the Penal Code is curious because it is not
explicitly mentioned in the text of Article 115, that which concerns assisted suicide
specifically. Indeed it is questionable whether it is 'compassion' that 115 is based upon
at all, since one can be non-selfish without being compassionate. It may be simple
beneficence or respect for a person's autonomy that leads to non-selfish actions, not
compassion itself.
Article 114 on the other hand, that concerned with 'killing on request', uses the phrase
'compassion' in much the same way as the DPP's Guidelines use it, though the latter
evinces a greater preoccupation with the concept given its repeated and specific
mention. Like the Guidelines however, the concept is no more exhaustively defined
than its inclusion in Article 114. It may be the case that this lack of clarity allows
'compassion' to be an umbrella term for beneficence, respect for autonomy and other
positive feelings which compel action.
727
ibid.
187
While the connotations of the word may be sufficient to garner enough clarity for the
provisions relying on it to be workable, it is still a highly subjective concept and one
that, in practice, can only be implied on the basis of the defendant’s evidence. This
evidence may have many forms; his relationship with the ‘victim’; his reputation as a
‘good person’ prior to the suicide; his past conduct with the ‘victim’, how he treated
him and if he was trusted. The list of possible inference providing exigencies is
endless. However, all the inferences in the world cannot mask the fact that, if one so
chooses, one can lie with the object of getting into a position of performing a
malicious act at a later time. Motive is, after all, a mental state, as are intention and
desire.728
Evan Harris, a Liberal Democrat MP, details the problem with compassion-centric
phraseology:
‘No guidelines will ever be able to distinguish, with the clarity
needed, between compassionate assistance to relieve terminal
suffering of competent adults and wicked assisted suicide of the
mentally ill – legislation is needed, and Parliament should act.’729
The MSB agrees completely with his acknowledgement of the need for Parliamentary
involvement in assuring the law’s clarity in this area. The Guidelines, helpful as they
are, are only policy. They can either be referred to by the conscientious
policeman/prosecutor/judge/officials up to and including the DPP himself, or they can
be set aside as nothing more than rhetoric and jargon and the law can move on
heedless of their existence. Granted this is a highly unlikely turn of events, especially
given the weight of the HL’s decision in Purdy that preceded their promulgation, but
it would take little in the way of legal ingenuity for a prosecutor bent on a conviction
to read them out of his brief. They were after all a product of duress on the DPP’s part
– never has his hand been so conclusively forced than in the upshot of the Purdy
judgement.
728
729
Buxton R, (1988) ‘Some simple thoughts on intention’ Criminal Law Review 484.
op. cit., n. 673.
188
To conclude this section, the creation of the Guidelines on AS was both a boon and a
burden for those, like Ms Purdy, who seek clarity in the law on AS and euthanasia.
They are a boon in that they provide guidance, if limited guidance, on the
circumstances where prosecution is less likely to follow an assisted suicide. In this
way Ms Purdy will be able to make plans for her future without feeling completely in
the dark about her husband’s prospects of prosecution.
The burden comes however when concrete guidance on the law’s direction is
required. As was noted in section 5.3.1 the promulgation of the Guidelines coincided
with the enactment of the CJA (2009) which, amongst innumerate other things,
broadened the scope of liability for AS. Interested parties to the AS/euthanasia debate
are therefore faced with a paradox. On the one hand the law is widening the scope for
prosecutions for AS – indeed if Mr Puente so much as drove his wife to the airport
and helped her onto the plane to Zurich he would be liable under the new section 2(1)
– and on the other, the DPP has, in the words of Paul Tully (an anti-euthanasia
advocate),
“...effectively
decriminal(ised)
assisted
suicide
in
a
range
of
circumstances.”730 While section 6 of the Guidelines specifically states that no such
decriminalisation has occurred and thus renders Mr Tully’s sentiment inaccurate, the
MSB suggests that further clarification of Parliament’s assessment of the illegality of
AS in light of the Guidelines is necessary to better protect both the ‘innocent’ assistor
and the innumerate vulnerable people who may be subject to pressure to agree to AS
by a nefarious party under the cloak of (currently) undefined ‘compassion’.
If indeed there is a liberty in terms of assistance in dying afforded by the law on
suicide, it is questionable how it should be rightly respected in a legal system like that
in England and Wales. There is a noted contrast between the law’s protestations
regarding the practices of PAS, ‘mercy killing’ and euthanasia and how defendants
brought to court for practicing them are treated once in the dock. Only in singularly
unrepentant circumstances will a practitioner be convicted of assisting a patient’s
suicide, and as yet there has never been a conviction for ‘mercy killing’ in the medical
730
ibid.
189
setting.731 Indeed it is arguable that the law at present is bent out of shape through
trying simultaneously to direct its full weight against the practice of euthanasia and
PAS, and yet showing leniency in cases, like the Gilderdale732 scenario, where it is
felt appropriate to do so. This confusion of leniency and zero-tolerance defines the
length and breadth of the law’s dealings with PAS and euthanasia. The inherent
confusion would be more intelligible, proponents of reform claim, if current practice
was codified.733
Now that the main arguments in favour of reforming the law have been discussed, the
chapter will move on and consider the main two against reform – the claim that there
are workable, presently accepted alternatives to reforming the law in favour of active
assistance in dying, and the slippery slope argument. Other arguments against reform,
as section 5 of this chapter noted, will be dealt with in chapter 6, as they are not
strictly legalistic in nature and therefore outside the scope of this chapter.
5.6 Legal arguments against reform: A possible presently legal solution?
On the topic of whether a less contentious alternative to PAS or euthanasia might be
found, the issues of ‘voluntary passive euthanasia’ and Terminal sedation (TS) require
consideration. The former involves the withdrawal of treatment, most often either
artificial hydration and nutrition or a ventilator, at the request of a competent patient,
in order to bring about that patient’s death. If such withdrawals are effected during the
course of routine medical care and the patient dies as a result, this happening is NOT
an instance of euthanasia. It becomes one only when the physician omits care with the
intention that the patient’s death be hastened.734
731
While it may be argued on this point that Doctor Cox in the case of R v. Cox (1992) 12 BMLR 38
was indeed convicted for his part in the death of his patient Lillian Boyes, he was not convicted of
‘mercy killing’ or assisted suicide. He was convicted of attempted murder.
732
http://www.guardian.co.uk/uk/2010/jan/25/kay-gilderdale-devoted-mother (accessed on June 4th
2010 at 15.45pm).
733
Harris J, The Value of Life (London: Routledge & Kegan Paul 1985); Otlowski. M, (1997) op. cit.
734
As section 1 of chapter 1 of this work noted, the fact that this work terms such a withdrawal
‘euthanasia’ does not imply that it is wrongful either morally or legally. As ‘doctor 2’ noted during his
interview, it is better, for clarity’s sake, ‘...to call a spade a spade.’ Interview with ‘Doctor 2’ by
Edwards. J conducted on 15th April 2009.
190
Voluntary passive euthanasia, as defined by the MSB and similarly by Young,735 is
held by opponents of reform to be, by virtue of its methodological distinctions from
active euthanasia and PAS, a more morally sound option than either of its
abovementioned counterparts.736 The MSB claims in chapter 1 that in cases where the
withdrawal of treatment is concerned, the distinction between activity and passivity
falters for the purposes of distinguishing the species of euthanasia. Consequently,
relying specifically on voluntary passive euthanasia as an alternative to PAS for the
incapacitated is uncomfortable as it is felt by the MSB not to be passive at all. Taking
this conclusion at face value it seems to advocate voluntary active euthanasia, since
the passive form is argued to be invalid by the MSB, as a workable alternative to PAS
for those patients unable to self-administer. The only distinction between these
practices is the identity of the ‘administrator’.737
On the other hand, TS works by slowly easing the patient into a chemically induced
coma before and until death in order to minimise possible suffering from the
protracted death engendered by a withdrawal of treatment. It is often spoken of in
tandem with such a withdrawal and has been the subject of fierce debate by Quill and
Byock,738 Hallenbeck739 and Young.740 The latter pair feel that TS is a less contentious
and valuable alternative to active assistance in dying – Hallenbeck delineating
between a terminally ill patient suffering unbearably (TS being permissible here) and
a non-terminal sufferer of a spinal cord injury (where it is impermissible) in his
discussion – where Young feels it is merely protracting what the patient who requests
PAS sees as a useless life. Gert et al741 are of like minds to Quill, Byock and
Hallenbeck in that they feel that there is an obligation to respect un-coerced refusals
735
Young R, Medically Assisted Death (Cambridge: Cambridge University Press 2007).
Keown J, Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge
University Press 1995).
737
This conclusion is specific to omissions of treatment that has already been begun. Pure omissions
remain an uncomfortable inconsistency with the MSB’s reasoning.
738
Quill T E and Byock I R, (2000) ‘Responding to Intractable Terminal Suffering: The Role of
Terminal Sedation and Voluntary Refusal of Food and Fluids’ 132 Annals of Internal Medicine 408.
739
Hallenbeck J, (2000) ‘Terminal Sedation: Ethical Implications in Different Situations’ 3 Journal of
Palliative Medicine 313.
740
Young R, (2007) op. cit.
741
Gert B, Culver C M and Clouser K D ‘An Alternative to Physician-Assisted Suicide: Conceptual
and Moral Analysis’ in Battin M P, Rhodes R and Silvers A (eds), Physician-Assisted Suicide:
Expanding the Debate (New York: Routledge 1998) at pgs. 182-202; Gert B, Culver C M and Clouser
K D, Bioethics: A Return to Fundamentals (New York: Oxford University Press 1997).
736
191
of artificial hydration and nutrition and see TS as a valuable alternative to PAS or
euthanasia.
As to the efficacy of TS as an alternative, it is conceded that in certain circumstances,
like those envisioned by Hallenbeck where the patient is in distress and cannot be
otherwise adequately palliated, its efficiency is hard to deny. However, easing distress
by plunging a patient who may well have asked for active assistance in dying by way
of PAS or active euthanasia, into a chemically induced coma can hardly be said to be
respecting his expressed wishes or his right to self determination.
It is also questionable whether TS is a less contentious alternative to active assistance
in dying at all, as the result of both courses of action is equivalent. It is simply the
case that TS protracts the dying process where PAS by self-administration is almost
instant. This distance between means and ends again raises the idea of a ‘moral step
back’ being taken from the proximate cause of the patient’s death by those who would
otherwise be its cause – by the practitioner in PAS by providing a drug for the patient
to use himself, and in TS by simply waiting for the patient to expire through renal
failure or some related issue. It is clear then that TS and voluntary passive euthanasia
do not provide an alternative to reforming the law, since both falter when subjected to
the MSB’s diminishment of the act/omission distinction. This conclusion is linked to
the slippery slope argument in that it shows that a feared outcome, the provision of
active assistance in dying, is at present available and is, because of its comparative
banality when couched in ‘passive’ terms, unregulated. A more thorough examination
of this argument is taken up in the coming sections.
5.7 Legal arguments against reform: The slippery slope
Slippery slope or thin edge of the wedge arguments have a distinctly consequentialist
flavour. Supporters of such arguments, Schauer,742 Lamb,743 Keown,744 Finnis,745
Schauer F, (1985) ‘Slippery Slopes’ 99 Harvard Law Review 363-369.
Lamb D, Down the Slippery Slope: Arguing in Applied Ethics (Kent: Crook Helm 1988).
744
Keown J, ‘Euthanasia in The Netherlands: Sliding Down the Slippery Slope?’ in Keown J,
Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University
Press 1995) at pgs. 261-296.
745
Finnis J, ‘A Philosophical Case Against Euthanasia’ in Keown J, Euthanasia Examined: Ethical,
Clinical and Legal Perspectives (Cambridge: Cambridge University Press 1995) at pgs. 23-35.
742
743
192
Fisher746 and Foot747for example, argue that a feared deleterious outcome will result
if a certain kind of conduct, in this case euthanasia, is permitted.748 Consequently even
if an individual plea for AS or euthanasia, like that made by Dianne Pretty, seems
right, it should not be granted because it will lead inevitably to practices that are
unquestionably wrong.749
There are three main assertions made by proponents of the slippery slope argument.
1. Firstly, if voluntary euthanasia or AS is legalised it would be
impossible to avoid the legalisation, or at least toleration of nonvoluntary euthanasia/AS procured by coercion and pressure.
2. Secondly, legalising voluntary euthanasia/AS would signal society’s
approval of medically assisted death and would open the floodgates.
3. And finally, if voluntary euthanasia/AS were legalised it would
result in abuse or neglect of the vulnerable, and mistakes in the
treatment and diagnosis of patients.
As a result of the panoply of interrelated problems covered by these three broad
points, opponents of reform feel that no matter the possible positive effects on
personal autonomy legalisation may bring, the risks will never be commensurate to
the costs occasioned by the abuses they feel are inevitable. Smith for example notes,
with reference to practices in Holland and Belgium:
‘Dutch doctors have gone from killing the terminally ill who asked
for it, to killing the chronically ill who ask for it, to killing the
depressed who had no physical illness who ask for it, to killing
newborn babies because they have birth defects, even though, by
definition, they cannot ask for it.’750
Fisher A, ‘Theological Aspects of Euthanasia’ in Keown J, Euthanasia Examined: Ethical, Clinical
and Legal Perspectives (Cambridge: Cambridge University Press 1995) at pgs. 315-332.
747
Foot P, (1977) ‘Euthanasia’ 6 Philosophy and Public Affairs 85.
748
Frey R G, ‘Fear the Slippery Slope’ in, Dworkin G, Frey R G and Bok S, Euthanasia and
Physician-Assisted Suicide: For and Against (Cambridge: Cambridge University Press 1998) at pgs.
43-63.
749
Kamisar Y, ‘Euthanasia legalisation: Some non-religious objections’ in, Downing A B (ed),
Euthanasia and the Right to Death: The Case for Voluntary Euthanasia (London: Peter Owen 1969) at
pgs. 85-133.
750
Smith W J, Forced Exit (Dallas: Spence Publishing 2003) at pg. 111.
746
193
This section, in collusion with section 5.7.1, aims to dissect these arguments in an
effort to see whether the evidence available on the practice of euthanasia, currently
best available from The Netherlands, does or does not support their claims.
Conclusions will be drawn as to whether slippery slope arguments lend credence to
the opponents’ feelings regarding the dangers of reforming the law at the close of this
chapter.
A preliminary point of interest concerns the numerous types of ‘slope’ that can be
descended towards the unwelcome consequences in issue; in this context of course
these would be the proliferation of non-voluntary and involuntary euthanasia.
Govier751 for example distinguishes between four types; the conceptual slope which is
associated with issues of vagueness, and raises questions about whether it is possible
non-arbitrarily to distinguish between instances in a series where there are no sharp
cut-off points between the instances; the precedential slope relating to the
requirement for consistent treatment for similar cases; the causal slope concerning the
avoidance of actions that will, or likely will, cause undesirable consequences and the
mixed slope, a combination of aspects of the other named forms. Walton752 has
created a similar set of definitions to delineate between the ‘sorites’ slope; the
precedent slope; the causal slope and the full slope arguments. This chapter lacks the
necessary scope for elaboration required to discuss these differing types of slope in
depth. However a glance at the workings of each provides an instructive background
against which the above noted three assertions can be discussed.
The impetus of the Conceptual slope argument is that anyone who believes the
competent will benefit from the legalisation of voluntary euthanasia or AS is logically
committed to believing that non-voluntary euthanasia and AS for the incompetent is
sound. Finnis and Keown make such arguments their own; the former proclaiming, in
line with the argument in point 1 (above), that ‘on the basis of consistency in
judgement’753 permitting voluntary euthanasia for a competent patient will licence the
Govier T, (1982) ‘What’s Wrong with Slippery Slope Arguments?’ 12 Canadian Journal of
Philosophy 303.
752
Walton D, Slippery Slope Arguments (Oxford: Clarendon Press 1992).
753
Keown J, ‘Euthanasia in The Netherlands: Sliding Down the Slippery Slope?’ in Keown J,
Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University
Press 1995). Also see, Finnis J, ‘A Philosophical Case Against Euthanasia’ in Keown J, Euthanasia
751
194
termination of lives judged not worth living. Both authors believe that there are
prevailing moral norms that apply to the medical profession that prohibit assisting a
dying patient's death, even if that patient believes he would be better off dead. Such
assistance is given, according to Keown, in the light of a decision by the practitioners
involved that it is in their patients’ best interests to do so. Voluntary euthanasia is
therefore, in Keown’s opinion, not justified on the basis of a dying patient’s request,
but as a consequence of ‘the doctor’s judgement that the request is justified because
the patient no longer has a life “worth” living.’754
Neither opinion is immune from critique. Finnis’ thesis, in using the concept of
‘consistency in judgement’, seems to overlook the inherent inconsistency between the
practice of voluntary, as opposed to non-voluntary euthanasia. The presence of
competence, and often also of a request for assistance in dying, make the concepts
different in both form and function; in form because of the request made by the
competent patient for aid, and in function because of the reasons behind the
assistance. With the competent patient it is most likely his choice to escape suffering
that precipitates his request, where with incompetent patients, as Keown points out, it
is likely an approximation of his best interests.
As to Keown’s argument, for all his reliance on the concept of best interests is
accurate, he bases his appreciation of the concept on purely medical terms. Thus,
while accurate in terms of the extent of the medical practitioner’s ability to judge his
patient’s best interests, he overlooks the fact that for the patient himself, there are
innumerate factors, separate from his medical condition, which feed into his
understanding and feelings about how his interests would be best served. By
overlooking this fact Keown’s thesis assumes that both competent and incompetent
patients are alike in his assessment of what would be in their best interests. This alone
renders his view, in Young’s words ‘fallacious’,755 and makes his argument in favour
of point 1 (above), which is based on the equivalence of voluntary and non-voluntary
euthanasia, a less credible reason for opposing reform to the law.
Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University Press 1995) at
pg. 24.
754
Finnis J, (1995) ibid., at pg. 24.
755
Young R, (2007) op. cit., at pg. 184.
195
Precedential slopes are based on the reasoning that if a certain thing is permitted, it
will establish a precedent that will justify permitting the same thing in similar
subsequent circumstances. This chain of precedents goes on until something
unacceptable, in this case non-voluntary or involuntary euthanasia, is permitted as
acceptable. This form of slope is susceptible to a similar critique as the Conceptual
form, as it relies on a concordance in structure between the two practices that it is
based upon, voluntary and non-voluntary euthanasia in this case. Given the number of
key differences between them, competence and consent being the main two, it is
highly questionable whether there is a significant enough analogical connection to
ground a precedential slope in the legalisation of voluntary euthanasia/uncoerced AS.
Due to this lack of logical consistency, there is no room for a ‘slide’ down a
precedential slope towards non-voluntary euthanasia because there is simply no
precedent set by voluntary euthanasia’s legalisation to allow the slide to happen.
The Causal slope is that most often referred to by opponents of reform and is based
on the precept that those who take the first step towards an unacceptable outcome will
inevitably be drawn to bring about that outcome. Such an argument underlies points 2
and 3 (above) and has as its basis a set of three psychological factors which are
thought to cause the ‘slide’.756 Onwuteaka-Philipsen et al757 explain the first of these
factors, citing a kind of desensitization to non-voluntary euthanasia occurring if
voluntary euthanasia is accepted as normal.758 Coupled with this is the fear that
physicians will, through the practice of euthanasia, become dehumanised to their role
as carers. Derbolowsky puts this concern candidly, ‘Those who demand “killing on
request” place the physician on the same level as a hangman’.759 The trust and
confidence inherent in the doctor patient relationship, and which plays a central part
Pellegrino E, (2001) ‘Physician-Assisted Suicide and Euthanasia: Rebuttals of Rebuttals – the Moral
Prohibition Remains’, 26 The Journal of Medicine and Philosophy 93.
757
Onwuteaka-Philipsen B D, van der Heide A, Koper D, Keij-Deerenberg I, Rietjens J A C, Rurup M
L, Vrakking A M, Georges J J, Muller M T, van der Wal G, and van der Maas P J (2003) ‘Euthanasia
and other end-of-life decisions in the Netherlands in 1990, 1995 and 2001’, 362 The Lancet 395-399.
758
See, Derbolowsky U, (1983) ‘Medical law in the light of fundamental human rights’ 2 Medicine
and Law 193-197; Kass L, (1989) ‘Neither for love nor money: Why doctors must not kill’ 94 Public
Affairs 25-36 and, Momeyer R, (1995) ‘Does physician assisted suicide violate the integrity of
medicine?’ 20 Journal of Medicine and Philosophy 13.
759
Derbolowsky U, (1983) ‘Medical law in the light of fundamental human rights’ 2 Medicine and Law
193 at pg. 197.
756
196
in defining the Hippocratic physician’s role, would be dissolved completely should
the carer become an executioner.760
The second factor, a product of Foot’s thesis, claims that the ‘social scene’761 may be
affected in ‘very bad ways’762 if voluntary euthanasia is legalised, as the pressures on
people within the most vulnerable demographics to seek assistance in dying
irrespective of their want for it will grow exponentially. Campbell expresses a similar
concern in noting that the acceptance of voluntary euthanasia will have a dangerous
and significant effect on the value to life, especially the lives of those who will come
to be seen as prime candidates for assisted dying.763
The MSB, while acknowledging the possibility of the consequences outlined by the
first two factors, questions whether they can be maintained when current medical
practice, as understood by the MSB, is considered. Surely if physicians were to be
dehumanised by assisting death in an active manner, those who withdraw treatment
would be likewise affected because, according to the MSB, withdrawals of the kind
which precipitated Anthony Bland’s death are as active as the provision of lethal
medication.
Similar conclusions can be made regarding the argument based on Foot’s work and
that raised by Campbell. Simply applying the MSB to the former cannot yield
accurate predictions for the effect legalising assisted dying would have on the ‘social
scene’. The theory only dictates that active assistance in dying is already covertly
available under a cloak of lexical sophistry based on passivity and omissions. What
can be pointed out however is the apparent lack of negative effects occasioned by the
above noted status quo. If the MSB is correct and currently labelled ‘passive’ actions
are actually active ones, then Foot’s worry is groundless. The negative effects she
760
St John-Stevas N, Life, Death and the Law: A Study of the Relationship Between Law and Christian
Morals in the English and American Legal Systems (London: Eyre and Spottiswoode 1961) at pg. 275;
Fenigsen R, (1990) ‘A case against Dutch euthanasia’ 6 (1) Ethics and Medicine 11-18; Momeyer R,
(1995) ‘Does physician assisted suicide violate the integrity of medicine?’ 20 Journal of Medicine and
Philosophy 13; Gormally L, ‘Walton, Davies, Boyd and the Legalization of euthanasia’ in, Keown J
(ed), Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge
University Press 1997) at pgs: 113-140.
761
Foot P (1977) ‘Euthanasia’ 6 Philosophy and Public Affairs 85 at pg. 112.
762
ibid.
763
Campbell A V, ‘Euthanasia and the principle of justice’, in Gill R (ed), Euthanasia and the
Churches (London: Cassell 1998) at pgs. 83-97.
197
perceives to be likely from active assistance in dying being available do not seem to
have occurred, irrespective of its (covert) availability. The same logic undercuts
Campbell’s worries about the negative effect readily available active assistance in
dying would have on the value of life. If the MSB is correct and that assistance is
already, if covertly, available, there has been no appreciable damage to the value of
life as a result.
Onwuteaka-Philipsen et al’s764 third factor states that any exception to the general
prohibition on killing, baring self defence,765 will make it easier to justify further
exceptions, which in turn will make non-voluntary euthanasia more palatable should
the voluntary form become lawful.766 Numerous analogies are drawn as proof of this
inevitability, the decriminalisation of abortion and subsequent rise in the number of
abortions performed being that most often cited by conscientious objectors to any
kind of liberalisation of the law on assisted dying.767 A similar rise in the number of
deaths procured through euthanasia is claimed to be the likely result of any kind of
liberalisation of the law on assisted dying, and the experience in the Netherlands,
where euthanasia is legal in certain circumstances, is posited as proof of this. These
claims will be tackled in section 5.7.1.
5.7.1 Evidence of the slippery slope? – The Netherlands
In the Netherlands, legislation exists to permit assisted suicide and euthanasia in
certain circumstances. The Termination of Life on Request and Assisted Suicide
(Review Procedures) Act (2002) amends Articles 293 and 294 of the Penal Code of
the Netherlands to read respectively:
(1) A person who terminates the life of another person at that other
person’s express and earnest request is liable to a term of
764
Onwuteaka-Philipsen B D et al, (2003) op. cit.
See, Uniacke S, Permissible Killing: The Self-Defence Justification of Homicide (Cambridge: Cambridge
University Press 1994) and, Leverick F, Killing in self defence (Oxford: Oxford University Press 2006).
766
Campbell A V, (1998) op. cit., at pgs. 83-97; Coleman C H, (2002) ‘The “disparate impact”
argument reconsidered: Making room for justice in the assisted suicide debate’ 30 Journal of Law,
Medicine and Ethics 17-23.
767
Keown J, ‘Euthanasia in the Netherlands: Sliding down the slippery slope?’ in, Keown J,
Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University
Press 1997) at pg. 262.
765
198
imprisonment of not more than twelve years or a fine of the fifth
category.
(2) The offence referred to in the first paragraph shall not be punishable
if it has been committed by a physician who has met the
requirements of due care...and who informs the municipal autopsist
of this.
And,
(1) Any person who intentionally incites another to commit suicide
shall, if suicide follows, be liable to a term of imprisonment not
exceeding three years or a fine of the fourth category fine.
(2) Any person who intentionally assist another to commit suicide or
provides him with the means to do shall, if suicide follows, be liable
to a term of imprisonment not exceeding three years or a fourthcategory fine. Article 293, paragraph 2 shall apply mutatis mutandis.
The ‘due care’ requirement is defined in Article 2 of the legislation. It stipulates that
the patient’s request is voluntary and well considered, that he or she must be suffering
in a way which is lasting and unbearable and that there is no reasonable prospect of
improvement. The doctor must have consulted an independent physician who agrees
with his approximation that there is no other reasonable solution to the patient’s
plight. The patient must agree with this also. This consent can be garnered from an
advance directive if the patient is no longer capable of expressing his or her wishes.
There have been four major studies on the practice of euthanasia within the past
decade; a pair of longitudinal ones between 1990 and 1991, and 1990 and 1995, a
follow-up to the latter in 2001 and a follow-up to that in 2005.768 Their findings are
represented on Table 1, below.
Table 1
Variable
No. of studied deaths
Practice that possibly
hastened death (%)
Euthanasia
Assisted suicide
Ending life without explicit
request by the patient
1990
5197
1995
5146
2001
5617
2005
9965
1.7
0.2
2.4
0.2
2.6
0.2
1.7
0.1
0.8
0.7
0.7
0.4
van der Heide A et al (2007), ‘End-of-Life Practices in the Netherlands under the Euthanasia Act’
356 The New England Journal of Medicine 1957-1965.
768
199
Intensified alleviation of
symptoms
Withholding or
withdrawing of lifeprolonging treatment
Continuous deep sedation
18.8
19.1
20.1
24.7
17.9
20.2
20.2
15.6
N/A
N/A
N/A
8.2
What is most striking about these findings is that, but for the row concerning
‘intensified alleviation of symptoms’, there is an obvious downward trend in instances
of death occasioned by any action that could loosely be labelled assisted dying. Even
in 2005 where the sample size grew by a third in comparison to that of the 1990 study,
the percentage of deaths caused by euthanasia remained 1.7%. Though it may be
argued that 1.7% of 5197 (88.3) is a lower figure than 1.7% of 9965 (169.4), this is
counterbalanced by the fact that in 2005 all deaths in which the cause of death
precluded physician assistance during dying were included, whereas only 1 in 12 of
these deaths was included in the other study years. Had the same sampling method
been used across the entire period of the study, the number of deaths would likely be
more standardised and the discrepancy between 1990 and 2005 less pronounced.
Clearly then, by that preliminary observation alone, the predicted slide along the
slippery slope towards involuntary and non-voluntary euthanasia does not appear to
have begun in any pronounced fashion. van der Heide et al, authors of ‘End-of-Life
Practices in the Netherlands under the Euthanasia Act’ conclude along similar lines.
They note that instead of the forecasted increase following the promulgation of the
Termination of Life (Review Procedures) Act,
‘The Dutch Euthanasia Act was followed by a modest decrease in
the rates of euthanasia and physician-assisted suicide. The decrease
may have resulted from the increased application of other end-of-life
care interventions...’769
Among these palliative measures are what van der Heide et al term the ‘intensified
alleviation of symptoms’; the use of morphine, diamorphine and other drugs to
alleviate symptoms and keep patients comfortable. Such cases are seen as quite apart
from cases of euthanasia, as the following quote from the authors of the 1990 study,
van der Maas et al, shows,
769
van der Heide A et al (2007), op. cit., at pg. 1957.
200
‘...most of the cases in which life was ended without the patient’s
explicit request were more similar to cases involving the use of large
doses of opioids than to cases of euthanasia.’770
This observation is a key one, especially when considering the impact of the MSB on
the slippery slope argument, because, as Young notes in his text, all opponents of the
legalisation of medically assisted death have no moral qualms about giving large
doses of opioids to patients so long as they are not given with the intention of
hastening death (the doctrine of double effect).771 In diminishing the distinction
between intention and foresight in the context of double effect, the MSB classifies the
actions taken by the physician providing opioids as amounting to active euthanasia.
Consequently, by relying on the slippery slope argument as one against the
legalisation of euthanasia, opponents of reform are perpetuating a double standard
which allows them, on the one hand, to laud double effect while on the other decrying
active euthanasia on principle.
Furthermore the above-evidenced statistics, while acknowledging the presence of a
certain amount of non-voluntary euthanasia, on the whole work to undercut the three
main contentions made at the beginning of section 5.7. As to the first (the
impossibility of regulation and an inevitable slide towards non-voluntary and
involuntary euthanasia) the fact that by 2001 the numbers of patients receiving
euthanasia had steadied after an initial rise in the 1990 – 1995 study and then drops
further in 2005 disproves the presence of a rapid descent into unregulated eugenicsbased medical killing, as warned of by Keown,772 Foot773 and Verhey.774 It would
therefore appear that the feared ‘slide’ and floodgates effect that could have come
from the enactment of the Dutch legislation on euthanasia has not happened, and that
770
van der Maas P J, Bosma J M, Onwuteaka-Philipsen B D, Willems D L, Haverkate I, and Kostense
P J, (1996) ‘Evaluation of the Notification Procedure for Physician-Assisted Death in The Netherlands’
335 The New England Journal of Medicine 1702. Also see, Griffiths J, (1995) ‘Assisted Suicide in the
Netherlands: The Chabot Case’ 58 (2) The Modern Law Review 232.
771
Young R, (2007) op. cit., chapter 6.
772
Keown J, (1995) op. cit., at pgs. 261-296.
773
Foot P, (1977) ‘Euthanasia’ 6 Philosophy and Public Affairs 85.
774
Verhey A, ‘A Protestant Perspective on Ending Life: Faithfulness in the Face of Death’, in Battin M
P, Rhodes R and Silvers A (eds), Physician-Assisted Suicide: Expanding the Debate (New York:
Routledge 1998) at pgs. 347-361.
201
Onwuteaka-Philipsen et al’s fears regarding the implied justification on a wide range
of exceptions to the prohibition on killing appear unwarranted.775
The second argument noted at the beginning of section 5.7 can also be addressed by
an appeal to the Dutch evidence, as can the third. The second issue, the claim that
legalising euthanasia would signal society’s approval of unregulated medically
assisted death, can at least be partially refuted with reference to the Chabot776 case.
Dr Chabot was a psychiatrist who, in 1991, supplied one of his patients, a deeply
clinically depressed woman (Mrs B), with lethal drugs that she administered to
herself in the presence of Chabot, a general practitioner, and one of her friends. She
died shortly thereafter and Chabot reported her death to the coroner as an assisted
suicide. In making his decision to provide the drugs Dr Chabot, through examining
Mrs B, came to the conclusion that her request for suicide was well-considered. He
consulted seven other expert psychiatrists, who all largely agreed with his assessment
of Mrs B and his proposed course of action, though none of them examined her
personally.
When the matter reached the Dutch Supreme Court in 1994, Chabot sought to rely on
the defence of necessity. He claimed that he had been faced with a conflict between
his duty to relieve his patient’s unbearable suffering by the only effective means
available to him, and his duty to preserve her life. He chose to fulfil the former
because he considered it the more stringent duty of the two. The Supreme Court
found that there was insufficient evidence to justify the necessity of Mrs B’s case,
even after ruling that the defence could be used in cases where there was a nonphysical illness, as there was no corroborating evidence from a medical expert who
had personally examined the patient.
775
Onwuteaka-Philipsen B D et al, (2003) op. cit. That having been said, Vrakking et al have reported
that 9% of all neonatal deaths in the Netherlands occurred following the administration of drugs with
the explicit aim of hastening death. Furthermore at least 2.7% of deaths of children between the ages of
1 and 17 in the Netherlands are due to euthanasia. Vrakking A et al (2005) ‘Medical end-of-life
decisions made for neonates and infants in the Netherlands 1995–2001’ 365 The Lancet 1329 and,
Vrakking A et al (2005) ‘Medical end-of-life decisions for children in the Netherlands’ 159 Archives of
Paediatrics & Adolescent Medicine 802 at pgs. 802-9.
776
Office of Public Prosecutions v. Chabot (1994) Nederlandse Jurisprudentie 656. Also see: Smith S
W, (2005) ‘Fallacies in the Logical Slippery Slope in the Debate on Assisted-Suicide and Euthanasia’
13 (2) Medical Law Review 224; Griffiths J, (1995) ‘Assisted Suicide in The Netherlands: The Chabot
Case’ 58 (2) The Modern Law Review 232.
202
Despite finding Chabot guilty of assisting a suicide under Article 294 of the Dutch
Penal Code, the Court imposed no penalty. While it was not considered that Chabot
had done anything seriously wrong, he was only seen at fault procedurally speaking,
for not acquiring corroborating evidence. This does not lend credence to the claim
that the legal toleration of voluntary medically assisted death will lead to societal
approval of the practice. Nor does it imply that significant numbers of people who are
not terminally ill are being assisted to die unlawfully.777 What the case does show is
that a person who is suffering psychologically can competently choose to die. It is
also clear that when a person’s psychological suffering is intolerable, it is permissible
for him to request medical assistance in dying if he is incapable of ending his own life
unaided.
The MSB is wary of concluding that this state of affairs is either overtly positive or
distinctly negative. The exercise of autonomous choice is the theory’s crux, and
Chabot clearly emphasises the ability of persons who are suffering psychologically to
make such choices. However, the MSB’s avowed respect for autonomy is tempered
by the requirement that the person in question is competent to make such choices.
The patient in the Chabot case was described as being severely clinically depressed.
Her competence to make an informed choice to seek death would therefore at best be
suspect, and it is posited here that she should not have been allowed to seek Dr
Chabot’s assistance in doing so, irrespective of the lacking need for literal
competence under the Dutch law on euthanasia.778 That said, the empirical evidence
cited above simply does not provide enough grounding to claim, irrespective of how
controversial the Chabot ruling may have been, that the slide along the slippery slope
towards widespread acceptance of non-voluntary euthanasia has been stepped upon.
What may cause such a step however is the inclusion of a 'tired of life' clause within a
future revision of the Dutch Legislation. There have been numerous recent calls to
allow those who are tired of life, much like Chabot's Mrs B, to be able to access
777
Griffiths J, (1995) ibid., at pg. 247.
The Chabot case occurred years before the Termination of Life on Request and Assisted Suicide
(Review Procedures) Act (2002) was promulgated. This makes little difference to the lacking need for
legal competence however. The Act makes no explicit mention of it in the text, Article 2(1)(a) only
requiring that the physician feels his patient is making a ‘voluntary and well considered request’.
778
203
lawful assistance in dying,779 one of which was made by the Citizen’s Initiative, Out
of Free Will. The Initiative suggested that people aged over 70 and who feel their
lives are accomplished should be able to seek assisted dying because such people, if
they feel they have no life left in them, should be able to say so and act upon it.780 On
the subject of including within the Dutch Act provisions for assisted death in cases of
existential suffering, Ost and Mullock conclude:
It is crucial to ensure that if it does become accepted medical and
legal practice to extend the due care ‘suffering’ criterion to
existential suffering, this practice is transparent so that all
concerned can witness the effects of this practice and if it is
deemed to be an undesirable slide down the slippery slope, action
can be taken.'781
The MSB agrees with the need for caution expressed in the above quotation. Despite
it being predicated on the respect for autonomy, it is argued here that allowing
assistance in dying to be sought by people whose suffering is almost impossible to
objectively quantify would be a tricky and arguably contentious step to take. At
present it does not appear that the Dutch authorities are willing to countenance such a
change, but this fact alone cannot be used to discount the fact that calls for reform
have been made.
The third claim, that the legalisation of medically assisted death would lead to the
abuse and/or neglect of the vulnerable, particularly the comatose and those
‘dependant on the public purse’782 is also not borne out by the Dutch experience. As
has been already noted, the number of people requesting assistance in dying rose
between 1990 and 1995 and was stable between then and 2001. Researchers have
inferred that the initial increase was the product of an aging population, and that
continuing efforts to ensure procedural transparency have contributed to the
stabilisation that occurred since 1995.783 It is also instructive to note that during the
779
Ost S, Mullock A (2011) ' Pushing the Boundaries of Lawful Assisted Dying in the
Netherlands? Existential Suffering and Lay Assistance' 18 European Journal of Health Law 163-18.
780
See, "Citizens group argues "right to die", NRC Handlsblad, 8th Feb 2010.
781
Ost S, Mullock A (2011)., op. cit. at pg. 189.
782
Young R, (2007) op. cit., at pg. 193.
783
van der Maas P J, van Delden J J M, Pijnenborg L, Looman C W N (1991), ‘Euthanasia and other
medical decisions concerning the end of life.’ 338 The Lancet 669; van der Maas P J, Bosma J M,
Onwuteaka-Philipsen B D, Willems D L, Haverkate I and Kostense P J, (1996) ‘Evaluation of the
204
course of the studies, the conditions for which patients sought assistance have not
changed. The most often cited throughout the duration were cancers, diseases of the
respiratory system and diseases of the circulatory system.784 There is no evidence that
the demented or the comatose have been treated worse as a result of the toleration of
voluntary euthanasia. Therefore there is no recognisable basis for inferring that the
legal tolerance of medically assisted dying will inevitably lead to a wide spectrum of
patients being targeted and indeed threatened by the practice.785
5.8 Conclusion
In sum, the investigation carried out in this chapter has detailed and evaluated
numerous arguments in favour of, and the most prevalent species of argument against
reforming the law on euthanasia and PAS. A dogmatic attitude towards the likelihood
of abuse being occasioned by such reform, claiming it definitely will, or definitely
will not happen, could not be taken as sound reasoning, for it is impossible to predict
every eventuality and set of future circumstances which may or may not affect a
practitioner and/or his patient. On the evidence from the Netherlands however it is
clear that legalising voluntary euthanasia has not caused a great slide down the
slippery slope towards eugenics-based medical killing. This argument against reform
can therefore be set aside in favour of the legal arguments for reform. It is also the
case that presently legal ‘alternatives’ to reforming the law do not, when subjected to
the MSB’s reasoning on acts and omissions, present workable alternatives at all.
They, like the examples discussed in section 1.4.1 of chapter 1 of this work,
perpetuate and, in the case of TS even exaggerate the MSB by allowing so called
‘passive’ deaths to be procured through the use of a chemical cosh, yet at the same
time disavowing the utility of active assistance in dying. Plainly, it is claimed here,
these things are one and the same.
‘Slope’ arguments are not the sum of those against reforming the law however. There
are innumerate non-legal or moral based arguments which must be considered before
Notification Procedure for Physician-Assisted Death in The Netherlands’, 335 The New England
Journal of Medicine 1706.
784
van der Heide A et al, (2007) op. cit., at pg. 1962.
785
Griffiths J, (1995) op. cit.
205
it can be rightly said that reforming the law is both a legally and morally sound step to
take. Chapter 6 will explore these arguments.
206
Chapter 6
The moral arguments for and against reform
6. Introduction
The preceding chapter outlined the arguments for and against reforming the law on
PAS and euthanasia from a legal perspective. Though it was concluded that legally
there is no substantive reason to NOT reform the law, especially in the light of the
decision of the HL in Purdy,786 conclusions cannot be drawn as to whether reform
would be a positive or negative step to take without first exploring the moral
arguments entailed in taking it.
Munby J in the case of Burke identified what he called ‘the ethical (bases) of the law’:
‘Our belief in the sanctity of life explains why we think it is almost
always wrong to cause the death of another human being, even one
who is terminally ill or so disabled that we think that if we were in
his position we would rather be dead...But the sanctity of life is only
one of a cluster of ethical principles which we apply to decisions
about how we should live. Another is respect for the individual
human being and in particular for his right to choose how he should
live his own life. We call this individual autonomy or the right to
self-determination. And another principle, closely connected, is
respect for the dignity of the individual human being: our belief that
quite irrespective of what the person concerned may think about it, it
is wrong for someone to be humiliated or treated without respect for
his value as a person.’787
These bases, the sanctity of life, the principle of autonomy and the respect for human
dignity, suffuse almost all of the philosophical arguments in favour of reforming the
law on AS and euthanasia, and, in part, inform the format of the preliminary sections
of this chapter. A discussion of the principles of autonomy and dignity, those central
to the arguments in favour of reform, would be incomplete without passing references
to the sanctity of life, irrespective of the latter’s use as an argument against reform.
786
R (Purdy) v. DPP (2009) EWCA Civ 92.
R (On the application of Burke) v. General Medical Council [2004] EWHC 1879; [2005] QB 424 at
51.
787
207
Sanctity and numerous other opposing fronts will be dealt with in the chapter’s later
sections.
The first argument posited in favour of reform concerns the principle of autonomy
directly, and relies on Mill’s harm principle in arguing that both passive and active
euthanasia are equally harmful to the ‘euthanised’ person’s autonomy. Given the
professed equivalence of these forms of euthanasia under the MSB, it should be the
case that either both are illegal, or both are legal. The offence the groundless denial of
‘active’ assistance in dying does to the dignity of the person requesting it is the
second of the arguments in favour of reform. The assertion that reforming the law on
assisted dying would in and of itself offend the intrinsic dignity of all persons will be
rebuked, and the third argument in favour of reform, that respecting human dignity
necessitates respect for autonomous choices will be made. The argument that
reforming the law to allow assisted dying would make acting mercifully to alleviate
suffering follows that on dignity, and is followed by an exploration of public opinion
on the practice, before the chapter shifts its focus to the arguments against reform.
As noted above, the sanctity of life forms the backbone of almost all of the moral
arguments against reforming the law on assisted dying. It is most prevalent in
theological rebukes to reform and these, the religious arguments opposing assisted
dying, will be the first that the second half of the chapter explores. After these issues
are considered the discussion moves on to explore two physician-centric arguments
against reform. The first questions whether the MSB, in denouncing the idea of
passive euthanasia and the use of the doctrine of double effect (DDE), may negatively
impact the psychological wellbeing of the physicians who rely on those constructs to
distance themselves from the consequences of their undoubtedly necessary actions.
The second explores the possible negative effects such reform would have on the
relationship between physicians and their patients.
6.1 Autonomy
In chapter 4 sections 4.2 and 4.4 of this work, Paterson’s appreciation of autonomy
was discussed. According to Paterson the principle of autonomy is a ‘secondary’ or
‘facilitative good’, something that allows people to experience ‘primary goods’ more
208
fully.788 In Paterson’s opinion, life, the main primary good, when it comes into
conflict with a secondary good, prevails because of its status as a primary good. The
MSB argued that autonomy and life are equal in terms of their status as goods, and
did so by distinguishing the possession of autonomy from the exercise of autonomy.
These two concepts, while distinct on the basis that one describes a possessed quality
while the other describes the exercise of that quality, are symbiotic in that one cannot
be truly autonomous without both.789 The importance of autonomy in the medical
setting is made clear by the following quote from Young:
‘In a health-care setting, when a patient exercises her autonomy she
decides which of the options for dealing with her health-care
problem (including having no treatment at all) will be best for her,
given her particular values, concerns and goals. A patient who makes
autonomous choices about her health care is able to opt for what she
considers will be best for her, all things considered.’790
The MSB supports Gillon791 and Biggs792 in breaking autonomy down into three
interrelated and mutually reliant concepts: autonomy of action (AoA); autonomy of
thought (AoT) and autonomy of will, intention or volition (AoW).793 These different
kinds of autonomy are separate from those noted above, and can exist independently
of each other. AoA describes the ability people have to control their bodily
movements and functions. ‘The patient whose voluntary muscles are paralysed by
curariforms but who is conscious because his anaesthetist has forgotten the nitrous
oxide and who tries in vain to devise a way of stopping the surgeon cutting him...’794
has clearly lost his autonomy in this sense since he cannot act at all. Yet, despite this
loss he is cognisant and therefore possesses AoT. This also includes intellectual
activities like thinking for oneself, making decisions, believing things and making
moral assessments. AoW on the other hand is the freedom to decide to do things and
to act on the basis of one’s thoughts. These latter kinds of autonomy parallel the
788
Paterson C, Assisted suicide and euthanasia: a natural law ethics approach (Aldershot: Ashgate
2008).
789
Recall that even the decision not to act in an autonomous manner is taken by this work to be
indicative of exercised autonomy. Without being possessed of autonomy a person could not decide not
to act in an autonomous manner.
790
Young R, Medically Assisted Death (Cambridge: Cambridge University Press 2007).
791
Gillon R, Philosophical Medical Ethics (Chichester: John Wiley & Sons 1999).
792
Biggs H, Euthanasia Death with Dignity and the Law (Oxford: Hart Publishing 2001) at pg. 96.
793
These three words refer to the same concept of autonomy in this context, no matter their slightly
different definitions.
794
Gillon R, (1999) op. cit., at pg. 61.
209
concepts of basic and complex intention defined in chapter 1 section 1.3.1a of this
work. Basic intention, the deliberations behind action, is equivalent to AoT, and
complex intention, the reasons for acting as one decides to, is AoW’s counterpart.
In relying on the Gillon-Biggs paradigm the MSB makes certain assumptions about
autonomy’s workings. It is possible to lack AoA whilst retaining one’s mental
competence. Competence itself is measured at law with reference to how well a
person can comprehend and retain information,795 and it is clear that one need not be
in control of one’s bodily movements and functions in order to do this to the needed
degree.796 AoT and AoW on the other hand are indispensible in describing autonomy
as they concern mental functioning. Indeed it is arguable that without AoT, AoW
could not exist because the lack of beliefs or desires, those things AoT allows, would
make deciding to act in pursuance of a belief or desire impossible.
The principle of respect for autonomy797 describes not autonomy itself, but the moral
requirement to respect other people’s autonomy. Though all three kinds of autonomy
can be impinged upon in different circumstances, it is AoA that concerns both
philosophers and the law most often because of the tangible effects actions can have
on others. The need for considered restrictions on the exercise of AoA is obvious.
Without it, all deliberate courses of action, no matter how terrible their consequences,
would need to be allowed on principle as autonomous acts. How the needed
discrimination between actions is made is a matter of much debate. The MSB draws
from those of Kant798 and Mill799 most predominantly.
Kant’s metaphysics divides what exists into two realms: the intelligible world (the
word of reason) and the phenomenal world of sense perception. In both realms
795
See the Mental Capacity Act (2005) s. 3(26); Re C(Adult Refusal of Medical Treatment) [1994] 1
WLR 290; [1994] All ER 819; Re T (adult: refusal of medical treatment [1992] 4 All ER 649; Re F
(Mental Patient: Sterilisation) [1990] 2 AC 1.
796
The cases of Ms B v. An NHS Hospital Trust [2002] EWHC 429 (Fam); R(on the application of
Pretty) v. Director of Public Prosecutions [2001] UKHL 61,[2001] 3 WLR 1598 and R (on the
application of) Purdy v. Director of Public Prosecutions [2009] EWCA Civ 92 were all deemed
competent irrespective of their physical handicaps.
797
Gillon R, (1999) op. cit., at pg. 62.
798
Ross D, Kant's Ethical Theory (Oxford: Clarendon Press 1954); Sullivan R J, Immanuel Kant's
Moral Theory (New York: Cambridge University Press 1989).
799
West H R (ed), The Blackwell Guide to Mill's Utilitarianism, (Oxford: Blackwell 2006); Wilson F
(1982) ‘Mill's Proof that Happiness Is the Criterion of Morality’ 1 Journal of Business Ethics 59.
210
everything that exists works according to universal laws. Rational beings can act
autonomously according to their understanding of these laws, while non-rational
beings are acted upon, their behaviour causally necessitated or determined by outside
causes. Respect for the autonomy of the rational person stems from their possession of
a will, the equivalent of AoW, and they are seen in true Kantian fashion as ends in
and of themselves, not as means to ends as non-rational beings are.
Mill800 and Hare801 agree, as the MSB does, with Kant’s premise regarding the
existence of a moral obligation to respect people’s autonomy. The maximisation of
human welfare, coupled with the avoidance of harm caused by unconstrained
exercises of autonomy create the backbone of Millsian philosophy, and lend valuable
assistance to the MSB in drawing the necessary lines between exercises of autonomy
which must be fettered for the greater good and those which cannot be. To Mill:
‘...the sole end for which mankind are warranted, individually or
collectively, in interfering with the liberty of action of any of their
number, is self-protection. That the only purpose for which power
can rightfully be exercised over any moment of a civilised
community, against his will, is to prevent harm to others. His own
good, physical or moral, is not a sufficient warrant.’802
It was argued in chapter 4 sections 4.2.3 through 4.3 that autonomy should be the
principle underlying estimations of the value of life, and that this would not
negatively impact others involved with the patient who makes his autonomous choice
to die. This supposition built upon sections 3.1, 3.2 and 3.5 of chapter 3, which
endeavoured to show that the courts already respect people’s autonomy in cases
where ‘passive’ euthanasia is in their best interests and, if one takes withdrawing
treatment as ‘a passive act’, when it is clear that the requesting patient is competent to
request. This respect is arguably misplaced if, as chapter 1 of this work endeavoured
to show, passive and active euthanasia are equivalent in all meaningful senses.803 It is
800
Mill J S, On Liberty (Filiquarian Publishing LLC 2006); Mill J S, Utilitarianism, On Liberty and
Considerations on Representative Government (London: Dent 1993).
801
Hare R M, The Language of Morals (Oxford: Clarendon Press 1952).
802
Mill J S, (1993) op. cit., chapter 1, paragraph 9.
803
Consider two cases, A and B. In case A the doctor withdraws treatment from a patient in a PVS, the
result of which is the patient’s death. In case B the doctor administers a massive dose of morphine to a
patient in a PVS, the result of which is the patient’s death. This work maintains that actions and
omissions with equivalent ends and means are necessarily the same no matter the semantic differences
between their labels; ‘act’ and ‘omission’. It does not matter if a different action is performed in cases
211
therefore argued, taking Mill’s harm principle as the fulcrum upon which the rightness
or wrongness of impinging upon an autonomous person’s exercise of that capacity
(autonomy) is based, that equal harm is done in both the passive and active instances
of euthanasia. This fact, according to the MSB and Rachel’s Equivalence thesis,804
dictates that both practices should either be legal or illegal.805
A number of possible reasons why one’s autonomy is routinely respected in the
passive circumstance and not the active one were highlighted in section 3.5.1 of
chapter 3 of this work. Of these, the protection of the autonomy of physicians was
taken to be the most prominent reason why requests for active steps to be taken to
procure death are routinely dismissed by the courts. Further to this observation it was
argued that making a determination of such importance, to respect the patient’s
autonomy or not to, based upon a semantic difference smacks of arbitrariness and the
MSB argues just that in dismissing the act/omission distinction. Indeed Otlowski
questions whether it is the involvement of a 3rd party and the impact on that person’s
autonomy which makes the difference.806 She rightly points out that cases where
active assistance is required are by their nature different to cases where the patient
commits suicide due to pressure caused by the 3rd party’s presence.807 Whether it
could be alleged that the willing assistant’s autonomy is being impacted by the
patient’s wish for assistance is questionable though. Indeed, being possessed of
autonomy, the assistant can always refuse just as the patient can change his mind.808
The MSB takes autonomy, explained by Young809 and Mill810 and as explored by
Gillon811and Biggs812, as the principle which underlies almost all of the arguments in
favour of reform. It was argued in chapter 4 of this work that allowing euthanasia and
A and B – the action of withdrawing treatment and the action of giving morphine – what matters is that
the character of those actions (both of them being actions as opposed to omissions) are equivalent.
804
Rachels J, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press 1985).
805
See sections 3.5.1 of chapter 3 and section 5.3.2 of chapter 5 of this work for a preliminary look at
the harm principle’s application.
806
Otlowski M, Voluntary Euthanasia and the Common Law (Oxford: Clarendon Press 1997).
807
This is a conclusion that both the MSB and Callahan agree with. See specifically sections 3.5.1 and
5.3.2 of this work, and Callahan D, (1989) ‘Can We Return Death to Disease?’ 19 (1) Hastings Center
Report 4-6.
808
See section 3.5.1 of chapter 3 and section 5.3.2 of chapter 5 of this work, which echo this sentiment.
809
Young R, (2007) op. cit.
810
Mill J S, On Liberty (Filiquarian Publishing LLC 2006); Mill J S, (1993) op. cit.
811
Gillon R, (1999) op. cit.
812
Biggs H, (2001) op. cit.
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AS would not offend this principle, and that choice, a component part of AoW, when
exercised by a person who is mentally competent to do so, should be respected. Not
doing so would offend the inherent dignity of all persons because autonomy and its
exercise are component parts of that quality. Biggs put it best:
‘Choice (autonomy) is frequently associated with the preservation of
human dignity in dying, so that to have one’s choices respected, and
thereby to maintain control, is regarded as inherently more dignified
than being subjected to futile and unwelcome medical interventions
at the end of life.’813
6.2 Dignity
In the context of euthanasia and AS a ‘dignified’ death or a death ‘with dignity’ is
taken to mean one free of pain and suffering. 814 One can appear ‘dignified’ through
one’s manner of dress or one’s actions but these are simply outward manifestations of
the idea itself. It is a human concept, borne out through the person himself rather than
his apparel or mannerisms, and also something innate which can be attacked by
‘indignity’, specifically that brought on by disease or desperate injury which may be
present during the last days, weeks, months or years of a person’s life. It is
manifested, in part, by the ability to think and reason, conceptualise the abstract,
learn, empathise and communicate.
The exact meaning of the phrase ‘dignity’ on the other hand is, in Schachter’s
opinion, left to ‘intuitive understanding’ rather than being clearly conceptualised.815
Similarly Gaylin notes that certain concepts, like certain books with cachet, are
prominently ‘displayed’ and discussed in intellectual abodes while remaining
essentially unexplored. Human dignity is one such concept.816 That said, there have
been cogent attempts at giving the ethereal concept form, both in legal documents and
in academic commentary. Kilner for example suggests that there are a number of
813
Biggs H, (2001) op. cit., at pg. 96.
See Munby J’s judgement in the case of R (On the application of Burke) v. General Medical
Council [2004] EWHC 1879; [2005] QB 424 at 51.
815
Schachter O, (1983) ‘Human Dignity as a Normative Concept’ 77 American Journal of
International Law 848, at pg. 849.
816
Gaylin W, (1984) ‘In Defence of the Dignity of Being Human’ 14 (5) Hastings Center Report 18.
814
213
more specific features associated with appeals to human dignity. He states that the
concept is usually called on:
‘…in situations in which the worth of human beings is brought into
question when they are used, forced, or injured. Human beings
should not be used because their dignity requires that they be treated
as having intrinsic, not merely instrumental, worth. They should not
usually be forced because their dignity mandates that their wishes be
respected. They should not normally be injured because their dignity
entails that their well-being be preserved.’817
Schachter too provides points of definition. Drawing on Kant’s supposition regarding
not using people solely as means to ends, he suggests that supporting human dignity
requires respecting ‘the will and consent’ of individuals, avoiding coercion and
recognising that an individual is ‘entitled to have his or her beliefs, attitudes, ideas
and feelings’.818
Legal definitions of dignity are also abundant, especially throughout international
Charters and Treaties concerning human rights. One of the most familiar is contained
in the Charter of the United Nations. It highlights the need to support the ‘inherent
dignity…of all members of the human family.’819 The UN also supports the idea of
human dignity in its 1948 Universal Declaration on Human Rights of which Article 1
states:
‘All human beings are born free and equal in dignity…they are
endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.’820
The background against which this Declaration was created explains its deep
commitment to recognising and upholding human rights. In the aftermath of the
Second World War a ‘legion of abuses that deprived many of life’ 821 were committed
under the guise of healthcare. Pence822 comments on the experiments conducted by
Kilner J F, ‘Human Dignity’ in Post S G (ed), Encyclopaedia of Bioethics (3rd edn New York:
MacMillan Reference 2004) at pg. 1197-1198.
818
Schachter O, (1983) op. cit., at pg. 849.
819
Charter of the United Nations, available at http://www.un.org/aboutun/charter (accessed on 16 th July
2009 at 13:44pm).
820
Universal Declaration of Human Rights, available at http://www.unhchr.ch/udhr/lang/eng.htm
(accessed on 16th July 2009 at 13:48pm).
821
Otlowski M, (1997) op. cit., at pg. 220.
822
Pence G E, Classic Cases in Medical Ethics (4th edn New York: McGrawHill 2004) at pgs. 270-271.
817
214
many factions; the Japanese physicians who carried out deadly experiments on
Chinese prisoners of war and the German physicians, sympathetic to the Nazi
ideology who subjected ‘undesirables’, the mentally ill, homosexuals and the Jewish,
to experimentation and ‘euthanasia’. The commitment to protecting human dignity in
the wake of such atrocities was and is still clearly intended to prevent its
recurrence.823
More contemporary documents reaffirm the international community’s commitment
to preserving human dignity. Take for example the Preamble of the 1997 Oviedo
Convention for the Protection of Human Rights and Dignity of the Human Being with
regard to the Application of Biology and Medicine: Convention of Human Rights and
Biomedicine (OC 1997). The Council of Europe states that signatories of the
document state themselves to be ‘…conscious that the misuse of biology and
medicine may lead to acts endangering human dignity’.824 Article 1 of the same
document states that ‘Parties to this Convention shall protect the dignity and identity
of all human beings…’825
Allusions to dignity are also made in case law. Munby J in the case of Burke v.
GMC826 points out its link with autonomy:827
‘(A principle) closely connected (to respect for autonomy)...is
respect for the dignity of the individual human being: our belief that
quite irrespective of what the person concerned may think about it, it
is wrong for someone to be humiliated or treated without respect for
his value as a person.’828
See also the UN’s International Covenant on Civil and Political Rights (Art 10) and the
International Covenant on Economic, Social and Cultural Rights (Art 13) both adopted in 1966 and
which entered into force in 1976, available at http://www.ohchr.org/English/law/index.htm (accessed
on 16th July 2009).
824
Council of Europe, 1997 at http://conventions.coe.int/treaty/en/treaties/html/164.htm (accessed on
16th July 2009 at 14:24pm).
825
ibid.
826
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273.
827
Beyleveld and Brownsword have highlighted the connection between autonomy and dignity and
claim that: ‘…the essence of the dignity of agents resides in their capacity to choose, to set their own
ends…we respect…dignity by creating the conditions and opportunities for choice and recognising
agents as sources of informed choice.’ Beyleveld D and Brownsword R, Human Dignity in Bioethics
and Biolaw (Oxford: Oxford University Press 2001) at pg. 5.
828
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 51.
823
215
Dignity is also referenced specifically in the cases of Pretty829 and Glass.830 In the
former the Court noted that ‘the very essence of the Convention is the respect for
human dignity and human freedom’831 and in the latter the Court referred explicitly to
the OC 1997 in ruling that the provision of diamorphine against a minor patient’s
parents wishes breached Article 8 of the ECHR. Indeed in R (A and B) v. East Sussex
County Council dignity was described as
‘...one of the core values – in truth the core value – of our society
and, indeed, of all societies which are part of the European family of
nations which have embraced the principles of the Convention.’832
Despite the obvious prevalence of dignity and the lexis surrounding it, it is accurate to
point out that the abovementioned documents and case examples do not define the
concept exhaustively, if any attempts are made at all. The European Convention on
Human Rights does little to add to the clarity of the concept in that it makes no
explicit mention of dignity in its provisions at all. The closest approximation within
the Articles of the Convention are Article 3, the right to be free from inhuman and
degrading treatment, and Article 8, the right to privacy, both of which were relied on
by Munby J in the Burke case in arguing that the GMC’s Guidelines on the
withdrawal of artificial hydration and nutrition did not adequately protect Mr Burke’s
rights.
Dupré, in her article ‘Human Dignity and the Withdrawal of Medical Treatment: A
Missed Opportunity?’833 takes on the ECtHR judgement in Burke and uses its
perceived shortcomings to suggest a more holistic, well rounded understanding of
human dignity. She contends that the Court’s judgement in that case is flawed in three
ways. Firstly, by emphasising the presumption in favour of prolonging life, the Court
did not respond to Burke’s concerns. He was not satisfied with this presumption under
the GMC Guidelines, and wanted a guarantee that his life would not be shortened by
829
R(on the application of Pretty) v. Director of Public Prosecutions [2001] UKHL 61,[2001] 3 WLR
1598.
830
Glass v. United Kingdom (Application No. 61827/00) (2).
831
R(on the application of Pretty) v. Director of Public Prosecutions [2001] UKHL 61,[2001] 3 WLR
1598 at 65.
832
R (A and B) v. (1) East Sussex County Council (2) The Disability Rights Commission (Interested
Party) [2003] EWHC 167 (Admin) at para 86.
833
Dupré C, (2006) ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed
Opportunity?’ 6 European Human Rights Law Review 678.
216
starvation. Secondly, the reference to the Glass834 case in relation to Article 2 is
misplaced because that case’s crux was Article 8 and consent to the administration of
diamorphine to a severely mentally and physically disabled child with a respiratory
infection. Thirdly, the reference to a doctor’s obligation to take account of the
patient’s wishes is ambiguous. While it is true that doctors might consider those
wishes, the CA made it clear that the best interests test has to remain objective and the
patient’s wishes cannot override medical expertise. At no point in its judgement
however did the ECtHR mention dignity, the very crux of Mr Burke’s application in
Munby J’s opinion.835
To Dupré, the Court, by neglecting to investigate the concept of dignity, effectively
halted the jurisprudential exploration of the topic for the time being. Furthermore, by
dismissing Article 2 as irrelevant to Burke’s case a paradox is created between the
state’s duty to respect the right to life and the applicant’s inevitable death should his
Artificial Nutrition and Hydration (ANH) be withdrawn as he feared. This dismissal
was repeated through the case’s successive appeals. The HC held:
‘Article 2 does not entitle anyone to continue with life-prolonging
treatment where to do so would expose the patient to ‘inhuman and
degrading treatment’ breaching Article 3. On the other hand, a
withdrawal of life-prolonging treatment which satisfies the exacting
requirements of the Common Law, including a proper application of
the intolerability test, and in a manner, which is in all other respects
compatible with the patient’s rights under Article 3 and Article 6,
will not give rise to any breach of Article 2.’836
In line with Dupré’s argument, the MSB contends that the Article 2 right to life has
been objectively applied and misshapen in the Burke judgement. It was applied from
the point of view of the medical team and their obligation not to force life-prolonging
treatment on a patient where this would lead to the breaches of Articles 3 and 8
mentioned in the HC quotation, not from the perspective of the patient himself. The
paradox here is that while PVS patients are protected from needless or futile treatment
that would prolong their life, Burke could not get a guarantee that his life would not
be shortened by the withdrawal of ANH. Mr Burke was asking for a treatment he
834
Glass v. United Kingdom (Application No. 61827/00) (2).
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 51.
836
ibid., at 178.
835
217
would need not to be withdrawn, he was not asking for the specific treatment to be
given (though this is implied), but a person in no fit state to ask for such maintenance
may be granted it on the basis of his Article 2 and 3 rights if such treatment is in his
best interests.
Moving away from Burke’s predicament, there are deeply contrary views held by
thinkers on the polar ends of the euthanasia debate regarding the effect reforming the
law would have on human dignity. On the ‘pro-reform’ pole the Voluntary Euthanasia
Society (VES) states ‘…our vision is for everyone to be guaranteed choice and
dignity at the end of their life, to help take away the fear of the process of dying.’ 837
The human rights group ‘Liberty’ quotes Dianne Pretty as saying that her legal fight
to get amnesty for her husband should he assist her in committing suicide was based
on her desire to secure ‘…the right to die at the time of my choosing, with
dignity…’838
By contrast, the Catholic Church views reform to the law, especially that regarding
legalising euthanasia, as an attack on human dignity:
‘…no one is permitted to ask for this act of killing, either for himself
or herself or for another person entrusted to his or her care, nor can
he or she consent to it, either explicitly or implicitly, nor can any
authority legitimately recommend or permit such an action. For it is
a question of the violation of the divine law, an offence against the
dignity of the human person, a crime against life, and an attack on
humanity at the beginning and end of life.’839
The Church’s objections to reform will be discussed in detail in sections 6.5 through
6.5.1.c of this chapter. For now it is enough to note that the principle of human dignity
can be used to argue both for and against legal change. But, regardless of this
malleability, concerns have been raised about dignity’s usefulness in the debate on
PAS and euthanasia. Horton, for example, notes that human dignity ‘…is a linguistic
837
See http://www.dignityindying.org.uk/ (accessed on 9 th July 2009 at 15.45pm).
Liberty, ‘First Ever Right-to-Die Case Under the Human Rights Act’, Press Release, 20th of August
2001, available at http://www.liberty-human-rights.org.uk/press/press-releases-2001/first-ever-right-todie-case-under-human-rig.shtml (accessed on 14th July 2009 at 12:02pm).
839
Sacred Congregation for the Doctrine of the Faith, Declaration on Euthanasia, 1980, available at
http://www.vatican.va/romancuria/congregations/cfaith/documents/rc_con_cfaith_doc_19800505_euth
anasia_en.html (accessed on 16th July 2009 at 14:57pm).
838
218
currency that will buy a basketful of extraordinary meanings.’840 Macklin expresses an
even deeper concern as she notes ‘dignity is a useless concept in medical ethics and
can be eliminated without any loss of content.’841 She feels that ‘…appeals to dignity
are either vague restatements of other, more precise, notions or are mere slogans that
add nothing to an understanding of the topic…’ and as such, in the context of requests
for assistance in dying ‘…dignity seems to be nothing other than respect for
autonomy.’842
Such an argument is partially supported by the efforts of those like Schachter843 and
Kilner844 to explain the content of human dignity by drawing on concepts like
rationality, the capacity for choice and personal freedom and again affirms
autonomy’s central place in the debate regarding PAS and euthanasia. This notion
does not hold however, in McLean’s opinion, in cases where the perceived quality we
are seeking to protect is hard to identify.845 She uses the example of an embryo that
by its nature cannot exercise choice or possess autonomy. In such cases the dilemmas
do not relate to these non-existent qualities, but to a value or worth (dignity) that is
difficult to discern.846
The question of the intrinsic worth of the human being has been discussed in chapter
4, and the MSB’s position on that worth is clear. Human life is felt to be valuable
because of all it facilitates: enjoyment, fulfilment, a sense of worth and so on. This
value can be assessed by both objective parties and by the person living the life in
question, and it is the subjective value which is felt to be of paramount importance.
On this logic, since the embryo itself does not possess the ability to value its existence
(indeed until it is separated from its mother after birth it is considered a legal nonperson), the valuation would come from its mother. It would be her choice whether or
not to continue with her pregnancy and her choice in doing so, much like that of the
Horton R, (2004) ‘Rediscovering Human Dignity’ 364 The Lancet 1081.
Macklin R, (2003) ‘Dignity Is a Useless Concept’, 327 The British Medical Journal 1419 at pg.
1420.
842
ibid., at pg. 1419.
843
Schachter O, (1983) op. cit.
844
Kilner. J.F, (2004) op. cit.
845
Mclean S A M and Williamson L, Impairment and Disability: Law and Ethics at the Beginning and
End of Life (London: Routledge-Cavendish 2007) at pg. 45.
846
ibid., at pg. 45.
840
841
219
competent person who seeks assistance in dying, should be respected providing she is
competent to make it.
Contrary to Macklin’s assertion then, the MSB suggests that the ability to make
competent, autonomous decisions is a quality inherent in the definition of human
dignity. Respecting and recognising human dignity therefore necessitates respect for
and recognition of autonomy.
6.3 Mercy
Another related though tangential argument forming the backbone of the case for
reform to the law is the need to alleviate pain and suffering and to prevent cruelty.847
Advocates of reform, Harris,848 Rachels849 and Otlowski850 for example, argue that
maintaining the complete prohibition on euthanasia and PAS amounts to cruel and
degrading treatment and that cruelty is an evil which must be avoided as far as
possible. They argue that in circumstances where there is no reasonable prospect of
recovery, considerations of common sense and compassion dictate that patients
should be allowed a merciful release from prolonged and useless suffering.
In response to a question regarding the role of the physician in the terminal phases of
a patient’s illness ‘Doctor 9’ said:
“A lot of colleagues...see a doctor’s role as being to promote life. As
a default. I disagree with that view, I don’t think our role is to
prolong or promote life. I think we have a duty towards health. The
goals of medicine include enabling a peaceful or well palliated death.
So indeed if we are saying that we can reasonably omit certain
interventions with the clear intention of withholding them because
they’re burdensome and futile, specifically because we want to
enable comfortable end of life, you can’t escape the euthanasia
debate on that...because we’re saying we want to promote a well
palliated death.”851
For example Williams G, ‘Euthanasia Legislation: A Rejoinder to the Non-Religious Objections’ in
Downing A and Smoker B (eds), Voluntary Euthanasia: Experts Debate the Right to Die (London:
Peter Owen 1986) at pgs. 156-157.
848
Harris J, The Value of Life (London: Routledge & Kegan Paul 1985).
849
Rachels J, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press 1985).
850
Otlowski M, (1997) op. cit.
851
Interview with ‘Doctor 9’ by Edwards. J conducted on 27 th November 2009.
847
220
Though there is no explicit mention of ‘mercy’ in the quotation, there is a clear
inclination on the part of Doctor 9 to put the proper palliation of a patient before
prolonging his life. The withdrawal of burdensome or futile treatments, something
this participant was reticent to call an ‘omission’ of treatment since he felt ‘...that acts
and omissions make things happen and that you’re as culpable for your omissions as
you are for your acts’,852 is a necessary and indeed merciful part of proper medical
practice. ‘Doctor 13’ recognised this when he spoke of the reasons behind
withdrawing or withholding burdensome treatment:
“...there comes a time when the measures being used to hold back
the illness are...usually so burdensome that it’s causing the patient
distress. Or the treatments aren’t working. Those are the times to
think about withdrawing treatment. Now there are areas where there
is limited evidence as to whether things are beneficial...things like
artificial hydration...And hospice philosophy has always been about
not giving people drips. If you go into A&E everyone has a drip as
soon as they come through the door. We like to think that we think a
bit more about that. The thing I used to really hate as a junior doctor
was seeing a patient on a ward, that you knew in your heart of hearts
was dying. But nobody would recognise that and you’d be carrying
on with this treatment. I’d have to go back and try to canulate them.
When people are that ill they’re quite swollen and it’d be difficult to
apply the treatment. It distressed me and them.”
It is clear that both Doctors 9 and 13 feel that it is the right, merciful thing to do in the
terminal phases of an illness to withdraw treatment which causes distress to a patient.
Neither of them however could countenance withdrawing a treatment from a patient
which was necessary to keep that patient alive if he was not in that terminal phase.853
An obvious difficulty raised by situations like this is the conflict between the doctor’s
duty to save life and the duty to prevent cruelty and relieve suffering. Otlowski argues
that this conflict can be resolved by ‘…holding that where a patient has voluntarily
requested active euthanasia, the greater duty is to accede to the patient’s request and
852
ibid.
Much the same predicament faced the clinicians caring for Ms B. See section 3.2 of chapter 3 for a
discussion of Ms B’s case.
853
221
avoid unnecessary suffering.’854 While this premise is agreed with here, it appears too
sweeping a statement to be justifiable. Were it taken at face value, it would appear to
impose a duty upon practitioners who did not wish to assist such a patient, regardless
of their own autonomous choice not to. Kohl argues in a similar vein by advocating
‘beneficent euthanasia’.855 According to this argument active euthanasia is a ‘kind’
treatment, and since society and its members have a prima facie obligation to treat
members kindly, it follows that beneficent euthanasia is a prima facie obligation.
It must be noted that Kohl supports both active voluntary euthanasia and nonvoluntary euthanasia in some circumstances. This is a position staunchly opposed by
the MSB, based as it is on the preservation of personal choice, but nevertheless there
is merit in Kohl’s contribution to the debate. It highlights that active euthanasia is a
means of minimising suffering and maximising kind and loving treatment of patients.
The imposition of a prima facie duty to assist patients is wrongful however, and
would be best avoided by giving the physician a choice as to whether or not to assist
the patient, and, should he or she not wish to, providing the patient with the means to
locate a practitioner who is willing to assist.
Another facet to the ‘prevention of cruelty’ argument is that which concerns the
patient’s control over the remaining weeks, months or years of his life. Although
reform obviously cannot remove all of the pain and suffering associated with terminal
illness, it would significantly reduce the burden on patients by placing the power to
end a miserable existence under their full control.856 This empowerment may improve
the quality of life experienced by the patient as he would have the assurance that he
could control the time and manner of his death when it came. Such appears to be the
case in Oregon, where statistics show that almost all of those patients who receive the
lethal prescription under the Death with Dignity Act do not use it.857
854
Otlowski M, (1997) op. cit., at pg. 203.
See Kohl M, The morality of Killing: Sanctity of Life, Abortion and Euthanasia (London: Peter
Owen 1974) at pg. 106.
856
Morris A, (1970) ‘Voluntary Euthanasia’ 45 Washington Law Review 239 at pg. 254; Otlowski M,
(1997) op. cit., at pg. 203.
857
http://www.deathwithdignity.org/news/news/statistics.1998.2005.asp (accessed on September 20th
2009 at 19:10pm).
855
222
Opponents of reforming the law to permit AS or euthanasia, Lavi858 most vocally,
have sought to undermine arguments for it centred on the prevention of cruelty and
the need for merciful treatment by suggesting that the underlying concepts, ‘mercy’
and ‘prevention of cruelty’, are flexible and open to abuse and interpretation. This
may, with time, result in an ever-increasing category of candidates for active
euthanasia.859
These assertions however are equally as challengeable as the issues they contest.
Prima facie, Lavi’s claim that the breadth of interpretation allowed by the concepts of
mercy and the prevention of cruelty engenders a risk that malefactors will abuse them
to carry out their crimes appears accurate. Wider definitions, by their very nature,
provide opportunities for issues to come to light which may not have been possible
under a more restricted lexis. However, taking this observation and using it to imply
that physicians (for active euthanasia by definition is performed by practitioners)
would, under the cloak of mercy, engage in widespread active euthanasia against their
patient’s consent is unquestionably farfetched. It assumes that there may be a
propensity for physicians to use euthanasia simply because it is available as an option,
and that it may end up being legitimately employed in questionable circumstances i.e.
where a patient either did not or could not consent to its use.
Evidence against Lavi’s claims was cited in section 5.7.1 of chapter 5 of this work,
where the Dutch experience of having legalised active euthanasia was discussed.860
While it is acknowledged that there was evidence of a small amount of non-voluntary
euthanasia being performed, this finding did not represent the ‘slide’ down the
slippery slope to eugenics-based mass killing warned of by Lavi and other opponents
of reform.861 Indeed van der Maas et al noted that the situations where non-voluntary
Lavi S, ‘The problem of pain and the right to die’ in Sarat. A (ed) Pain, Death and the Law (Ann
Arbor: University of Michigan Press 2001).
859
Dyck A, (1975) ‘The Good Samaritan Ideal and Beneficent Euthanasia: Conflicting Views of
Mercy’ 42 Linacre Quarterly 176 at pgs. 180-181
860
van der Maas P J, Bosma J M, Onwuteaka-Philipsen B D, Willems D L, Haverkate I and Kostense P
J, (1996) ‘Evaluation of the Notification Procedure for Physician-Assisted Death in The Netherlands’,
335 The New England Journal of Medicine 1702; van der Maas P J, van Delden J J M, Pijnenborg L,
Looman C W N (1991), ‘Euthanasia and other medical decisions concerning the end of life.’ 338 The
Lancet 669.
861
See for example, Keown J, ‘Euthanasia in The Netherlands: Sliding Down the Slippery Slope?’ in
Keown J, Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge
University Press 1995) at pgs. 261-296; Foot P, (1977) ‘Euthanasia’ 6 Philosophy and Public Affairs
858
223
euthanasia had occurred were akin to those where the DDE is employed in English
law and were therefore not as indicative of malfeasance as the terminology implies.862
Another facet of Lavi’s argument against using mercy as a vehicle for promoting AS
or euthanasia is based on the observation that modern society evidences a marked
intolerance for pain.863 Lavi contends that countenancing AS and euthanasia is a
kneejerk reaction to this intolerance, an argument also made by Herring, who laments
the societal disdain for discomfort in a similar manner and argues that ‘we need to
recapture an appreciation for pain.’864 A more thorough discussion of this issue will
take place in section 6.5.1.c. At present it suffices to say that, predicated on an
appreciation for personal autonomy as it is, the MSB would leave it to the patient to
gauge whether or not he ‘appreciates’ the pain he is in, or if instead he desires relief
from it.
According to Tang, Aarason and Forbes,865 access to appropriate support and pain
control are the key to avoiding assisted dying. They allege that the quality of life of
those who consider ending their lives is maximised when they can receive support
from a live-in carer or access to in-patient hospice care on a regular basis. This
support was found to provide a sense of existential comfort for the people being cared
for and lessened the likelihood of their resorting to requesting or seeking assistance in
dying.866 Easy access to palliative care is therefore, according to Tang et al, crucial in
stopping the kneejerk reaction to pain Lavi noted and in halting reliance on AS or
euthanasia.
While these findings are undoubtedly accurate, it is an unfortunate fact that the
hospice and palliative care services in England and Wales, whilst being exemplary
examples of such, are blighted by problems concerning access. Doctor 13 pointed this
85 and, Verhey A, ‘A Protestant Perspective on Ending Life: Faithfulness in the Face of Death’, in
Battin M P, Rhodes R and Silvers A (eds), Physician-Assisted Suicide: Expanding the Debate (New
York: Routledge 1998) at pgs. 347-361.
862
van der Maas P J, Bosma J M, Onwuteaka-Philipsen B D, Willems D L, Haverkate I and Kostense P
J, (1996) op. cit.
863
Lavi S, (2001) op. cit.
864
Herring J, Medical Law and Ethics (Oxford: Oxford University Press 2006) at pg. 450.
865
Tang W R, Aarason L and Forbes S, (2003) ‘Quality of Life in Hospice Patients with Terminal
Illness’ 26 Western Journal of Nursing Research 113.
866
ibid.
224
out when asked about the catchment area for a hospice he is associated with, noting
that it encompasses three boroughs.867 Although it is one of three in the area, there are
still many more patients in need of the services provided than there are in-patient beds
to accommodate them. It goes without saying that this fact does not presuppose a need
for assisted dying. Rather it acts as impetus for a change in the structure and funding
of the hospice and palliative care system to make their invaluable services more
widely available.868 If such services were available whenever a need for them arose, it
is questionable whether the public perception of the need for PAS and euthanasia
would be as positive as it is today.869
6.4 Public opinion
Throughout recent history, public support for assisted dying has been steadily
increasing, and this fact cannot be ignored when exploring the moral reasons for
effecting reform to the law. Public opinion is both an accurate reflection of the
importance of debating assisted dying, and also an indispensible source of evidence
from which this work can draw in discussing the appropriateness of reforming the
law.
Public opinion is also a deeply necessary facet of the argument proponents of reform
make. Since they began in the 1930’s, opinion polls have been drawn together on the
topic of euthanasia and PAS and have shown, generally speaking, a trend towards
acceptance of the practices.
Interview with ‘Doctor 13’ by Edwards. J conducted on 1 st February 2010.
The positive impact on palliative care on the terminally ill has been explored by, Breitbart W,
Rosenfeld B, Gibson C, Kramer M, Li Y, Tomarken A, Nelson C, Pessin H, Esch J, Galietta M, Garcia
N, Brechtl J, Schuster M (2010) ‘Impact of treatment for depression on desire for hastened death in
patients with advanced AIDS’ 51(2) Psychosomatics 98-105; van der Lee M L, van der Bom J
G, Swarte N B, Heintz A P, de Graeff A, van den Bout J (2005) ‘Euthanasia and depression: a
prospective cohort study among terminally ill cancer patients’ 2 3(27) Journal of Clinical Oncology
6607-12.
869
Tang W R, Aarason L and Forbes S, (2003) op. cit.
867
868
225
‘Graph 1’ above evinces this trend with reference to results catalogued in the Gallup
Polls. The sample group was asked the following question,
“When a person has a disease that cannot be cured and is living in
severe pain, do you think doctors should or should not be allowed by
law to assist the patient to commit suicide if the patient requests
it?”870
It is telling that the steady increase in support for PAS only loses pace once, in the
1950 set, before increasing again. This drop is most likely due to a public backlash
against the use of euthanasia for eugenic purposes during World War 2 and, though
these practices are still cited today by opponents of euthanasia specifically, or any
reform to the law regarding it for that matter, the figures in Graph 1 show that
publicly the unease has settled.
There were no statistically significant differences between respondents in terms of
age, sex or economic class, though religious beliefs, unsurprisingly, accounted for a
percentage difference. Though the main groups showed overall support for
870
http://www.gallup.com/poll/23356/Public-Continues-Support-RighttoDie-Terminally-IllPatients.aspx (accessed on February 10th 2011 at 19.31pm).
226
euthanasia, Catholics were less inclined to be supportive than those in the Church of
England or Atheists; 75%, 80% and 93% of those groups respectively.871
Furthermore it was found that younger respondents appeared to be more in favour of
euthanasia than older ones were. Perhaps this can be explained with reference to the
perceived distance felt by those younger respondents from the need for euthanasia
compared to older people who, even though they may never wish to be ‘euthanised’
themselves, felt it is something of a danger to older people. The ‘distance’ between
the younger respondents and the debated topic could necessitate them putting
themselves into the shoes of a person who would consider euthanasia in order to best
form their opinions on the topic. However, putting on another’s shoes is not the same,
quite obviously, as being personally in the situation where euthanasia may be an
option.
It is also highly probable that younger participants have a stricter set of criteria by
which they define a ‘life worth living’ as opposed to older ones. That is not to say that
either group is more correct that the other, only to point out that opinions can very
often change with time. Recall from chapter 4 section 4.2 of this work Doctor 2’s
recollection of a discussion he had with Baroness Warnock on this issue:
‘…she said I will not (change my mind about how I wish to die).
And the thing that I couldn’t help but say, and I made an apology for
saying it…“You’re utterly convinced of that. So were the last 20
people who said it.” But they DID! “You may be the exception.
You’re probably the brightest of them.” But interestingly she said
something else in another conversation. “When I was 35 I wouldn’t
have thought that living at 85, half blind and half deaf would be
acceptable. Now I find it’s not so bad.” So, there’s some change in
her mind. Clearly I don’t say that for a moment in criticism. It’s the
only logical and reasonable position...to be prepared to change your
mind in light of changing circumstances (emphasis added).’872
As ‘Doctor 2’ noted, and indeed Baroness Warnock implied, one cannot say for sure,
when one is young and healthy, that one would consider a certain quality of life or
mode of living unacceptable, for until one finds oneself in the situation discussed, half
871
872
In Otlowski M, (1997) op. cit.
Interview with ‘Doctor 2’ by Edwards. J conducted on 15 th April 2009.
227
blind and half deaf in Baroness Warnock’s case, one cannot rightly assume to know
that such a life is not worth living. As chapter 3 made clear, it is up to the person him
or herself to decide the quality of his or her life and the value of its continuation.
However, the support the general public have for euthanasia and reform more
generally is not, it is often claimed, supported by the medical profession as a whole.
The true state of affairs is difficult to ascertain, but to date, during the empirical
portion of the research for this PhD, 6 of the 13 practitioners interviewed expressed
support for reform. The divided nature of the debate however is well evidenced by the
articles published by major newspapers and their affiliate websites. A June 2006 issue
of the Daily Mail for example published figures claiming that 65% of doctors polled
by the BMA voted in favour of overturning the BMA’s neutral position on assisted
dying.873 Three years later, the issue published on the 14th of July reported that Prime
Minister Gordon Brown was ‘totally against’ relaxing the law on assisted suicide.874
Another issue quoted figures showing a third of nurses were in favour of assisted
suicide,875 and another lamented the dilemma faced by nurses because of a ‘surge’ in
requests for assisted suicide.876 Surge or not, a debate published in the Telegraph
online cited the warning given by Ms Barbara Wilding, a senior policewoman who
proclaimed:
‘...relaxation of assisted suicide laws could be exploited by families
to kill burdensome elderly relatives...a growing rift between young
and old generations, combined with the pressures of an ageing
population, is a significant challenge for police.’877
Exchanges of letters from the public published in the same newspaper expose again
the polarity of the debate. Mr John Murray (author of one of the numerous letters) can
be quoted in response to the assertion of Professor John Milbank that assisted suicide
denies the value of life, as saying:
873
http://www.dailymail.co.uk/news/article-393143/Assisted-suicide-legal-say-doctors.html (accessed
on July 14th 2009 at 16.28pm).
874
http://www.dailymail.co.uk/news/article-1102953/Gordon-Brown-totally-relaxing-law-assistedsuicide.html (accessed on July 14th 2009 at 16.25pm).
875
http://www.dailymail.co.uk/news/article-202747/Third-nurses-assisted-suicide.html (accessed on
July 14th 2009 at 16.25pm).
876
http://www.dailymail.co.uk/health/article-1181438/Nurses-dilemma-surge-assisted-suiciderequests.html (accessed on July 14th 2009 at 16.25pm).
877
http://www.telegraph.co.uk/news/newstopics/debates/6129848/Are-we-killing-our-elderly.html
(accessed on September 20th at 14.59pm).
228
‘I wonder if Prof Milbank would propound the same views had he
nursed his wife through unimaginable pain as she succumbed to
terminal cancer. I did that – and I assure him that my view is most
definitely not a ‘manipulated view of the majority.’878
A contrary view was noted by a Dr Trevor Stammers who felt that ‘...if we move
towards an NHS where physician-assisted suicide is legal, hospital wards will surely
become even more to be feared. Compassion endures, not kills, when it cannot
cure.’879 This fractional representation of the true scale of the public debate gives an
idea of how divided opinions are.
The MSB, in placing itself within this panoply, agrees with Dr Stammers’ opinion to a
point. It cannot be denied that compassion is likely the most pervasive of all of the
motivations behind the work of conscientious physicians, no matter their
specialisation or acquaintance with end of life care. However, on the logic employed
by this work regarding the non-distinction between ‘letting die’ passively and
‘causing death’ actively, Dr Stammers’ supposition that physicians do not cause death
on occasion when acting compassionately and ensuring their patients are comfortable
is fallacious. As section 5.7 of chapter 5 made clear, provided the MSB’s reasoning is
sound, the feared ‘bottom’ of the slippery slope has long been reached in England and
Wales through the use of supposedly ‘passive’ euthanasia and the doctrine of double
effect. That said, the arguments made by Dr Stammers and others like him cannot
simply be discounted on account of the MSB’s precepts. The coming sections will
take up Dr Stammers’ viewpoint in espousing the moral arguments against reforming
the law.
6.5 Moral arguments against reform
Like the arguments for reform, those against it come from numerous sources. It is not
an overestimation however to note that two thirds of them are based at least partially
in theological doctrines and the teachings of various religious schools of thought. It
was noted earlier in chapter 4 section 4.2.1, and section 6.2 of chapter 6 that the
878
http://www.telegraph.co.uk/comment/letters/5990950/Individual-choice-on-euthanasia-is-moreimportant-than-philosophical-argument.html (accessed on September 20th at 15:10pm).
879
http://www.telegraph.co.uk/comment/letters/5978848/Assisted-suicide-denies-the-value-of-life-andis-an-affront-to-Western-humanism.html (accessed on September 20th at 15:16pm).
229
Catholic Church may be quoted as feeling that euthanasia, and by implication any
reform to the law concerning euthanasia, are attacks on the inherent dignity possessed
by all people. Thus, in 2004, Pope John Paul II could state:
‘Euthanasia is one of those tragedies caused by an ethic that claims
to dictate who should live and who should die. Even if it is
motivated by sentiments of a misconstrued compassion or of a
misunderstood preservation of dignity, euthanasia actually eliminates
the person instead of relieving the individual of suffering.’880
While his Holiness’ point of view is as valid as those expressed in favour of reform,
his seeming dismissal of the pro-euthanasia movement on the grounds that proponents
of it do not share his understanding of compassion and dignity lacks weight. The
dismissal is spurious because, as with personal opinions and ethical beliefs, not all
people possess the same understanding of religion, if they chose to be part of one at
all. Dismissing a non-Christian belief system simply because it is non-Christian is as
unfair as dismissing a Christian belief offhandedly would be. As such, the preliminary
sections of this half of the chapter will be focused on analysing and evaluating the
main religious arguments opposing reform.
6.5.1 Religious arguments against reform
Religious unease surrounding euthanasia stems from four main beliefs;
1.
2.
3.
4.
that reform would be against the will of God,
that it offends the sanctity of life,
that it goes against the prohibition on intentional killing and,
that there is value in human suffering.
Each point will be discussed in turn, though the sanctity of life has been discussed at
length in section 4.2.1 chapter 4 of this work and therefore needs little in the way of
re-explanation here.
880
Address of John Paul II to the Participants in the 19 th International Conference of the Pontifical
Council for Health Pastoral Care, Friday 12 th November 2004, available at
http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/November/documents/hf_jpii_spe_20041112_pc-hlthwork_en.html (accessed on 17th July 2009 at 13:03pm).
230
6.5.1a Reform/euthanasia is contrary to the will of God
The will of the Abrahamic God is said to be contained within the Ten
Commandments, the 6th of which expressly forbids killing one’s fellow man. Since
both euthanasia and PAS entail killing, they, like murder, are expressly forbidden and
any attempts to make either permissible would therefore be contrary to God’s will.
Conclusive as this commandment may sound however, its dictates are subject to
interpretation. Huxtable for example has made it clear that the phrase ‘thou shalt not
kill’ should be regarded as ‘do not murder’.881 Arguably then, and while the MSB
does not advocate such a thing, a law which makes euthanasia or PAS legal would
circumvent ‘God’s’ prohibition without issue.
Gula also points out that an examination of the biblical texts reveals that it was never
understood as an absolute prohibition on the taking of human life.882 The JudeoChristian tradition has always recognised that in certain circumstances intentional
killing may be permissible. For example, in the context of a just war one may kill
one’s enemy; capital punishment can be exacted on a lawfully convicted felon; and
one may legitimately kill one’s attacker in self-defence if that attacker caused mortal
danger.883 However, in the context of end-of-life decision making, the Commandment
prohibiting killing has been understood to preclude the intentional termination of
human life.884
A testament to how variable the interpretations of ‘God’s will’ can be comes from the
work of David Hume,885 who framed a canny debate between himself and ‘God’, one
which is employed in the coming section on the sanctity of life, which exposes the
881
Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: RoutledgeCavendish 2007) at pg. 11; Linacre Centre (The Linacre Centre for Health Care Ethics) (1982),
‘Euthanasia and clinical practice: trends, principles and alternatives. A Working Party report’, in
Gormally L (ed), Euthanasia, Clinical Practice and the Law (London: The Linacre Centre for Health
Care Ethics 1994) at pgs. 177-192
882
Gula R, (1987) ‘Euthanasia: A Catholic Perspective’ 68 Health Progress 28 at pg. 29.
883
Sullivan J V, The Morality of Mercy Killing (Westminster, Maryland: Newman Press 1950).
884
This seeming dogmatism is circumvented with the doctrine of double effect where necessary, a
concept which chapter 2 of this work argued to be little more than a semantic contrivance.
885
Hume D, ‘On Suicide’ in Cottingham. J (ed) Western Philosophy: An Anthology (Oxford: Blackwell
Publishers 1996) at pg. 431.
231
scriptures’ weakness regarding subjective interpretation. His monologue shifts
between his argument and ‘God’s’ rejoinders (italicised):
‘…But you are placed by providence, like a sentinel, in a particular
station; and when you desert it without being recalled, you are
equally guilty of rebellion against your Almighty Sovereign, and
have incurred his displeasure. I ask, Why do you conclude that
Providence has placed me in this station? For my part, I find that I
owe my birth to a long chain of causes, of which many depended
upon voluntary actions of men. But Providence guided all these
causes, and nothing happens in the universe without its consent and
cooperation. If so, neither does my death, however voluntary,
happen without its consent; and whenever pain or sorrow so far
overcome my patience as to make me tired of life, I may conclude
that I am recalled from my station in the clearest and most express
terms.’886
Given how affected by interpretation the implications of scripture can be, it is
questionable whether it is just to impose ‘God’s’ will on people who do not subscribe
to religion. ‘Doctor 4’ made this point clearly, “One thing I always find difficult is the
argument that people have...to ban euthanasia just because people enforce their
religious cultural values on others.”887
The MSB, as evidenced in chapter 4 section 4.3, bases its moral stance on ethics
derived from opinions like Doctor 4’s. It is for the person who is faced with making
choices about his life to make them on the basis of his personal morality.
Consequently, stating that a person’s actions are contrary to God’s will is appropriate
as an expression of one’s own beliefs, but one must not thrust those beliefs upon the
actor in question and seek to influence him on the basis of a belief system he is not a
party to. Thus, the argument that suggesting reform to the law on assisted dying
should be stopped because it offends God’s will is inherently wrong, because it
discounts the beliefs of those proponents of reform who do not subscribe to a
particular religion, or upon those who do, and have no problem reconciling their faith
with their views on assisted dying.
886
887
ibid., at pg. 431.
Interview with ‘Doctor 4’ by Edwards. J conducted on 3 rd September 2009.
232
6.5.1b The sanctity of life and the prohibition on intentional killing
This section covers both the overarching principle of the sanctity of life and the
prohibition on intention killing because, by their nature, the two are inextricably
linked. There would likely be no prohibition on intentional killing, or killing of any
kind for that matter, if human life was not considered sacred or overwhelmingly
important in some sense. The sanctity of life, according to religious teachings,
accrues through the fact that God created man in his own image. God is therefore felt
to be the true ‘owner’ of human life and it is believed by those who subscribe to
religious teachings that He alone may decide when life is to come to an end.888
Sanctity though is not a purely religious concept, though its terminology is more or
less defined by theological thought. As chapter 4 of this work discussed, there are
numerous schools of thought on the sanctity and worth of human life, both to society
as a whole and to the individual personally.889 Paterson makes a persuasive argument,
discussed in section 4.4 of chapter 4 that life is a primary and therefore overriding
‘good’890 and Harris,891 Rachels,892 Biggs893 and Brazier894amongst many other
secular writers make compelling cases for life having some inalienable quality to it
which set it apart from other aspects of the human condition.
It is unquestionable however, despite the fact that life is considered ‘sacred’ by both
religious and non-religious thinkers, that that quality does not preclude all actions
which threaten life. As Gula pointed out in the preceding section, there are situations,
war, legal punishment and self-defence to list three, where it is quite legitimate to
kill.895 The legitimacy of killing in war is written into the definition of murder, it
being the ‘unlawful killing of a human being under the Queen’s peace...(italics
888
See section 4.3 of this work and, Kuhse H, The Sanctity of Life Doctrine in Medicine: A Critique
(Oxford: Clarendon Press 1987) at pg. 17.
889
Chapter 4 sections 4.2 and 4.4 of this work.
890
Paterson C, (2008) op. cit.
891
Harris J, (1985) op. cit.
892
Rachels J, (1985) op. cit.
893
Biggs H, (2001) op. cit., at pg. 96.
894
Brazier M, Medicine, Patients and the Law (Harmondsworth, UK: Penguin Books 1992).
895
Gula R, (1987) ‘Euthanasia: A Catholic Perspective’ 68 Health Progress 28 at pg. 29.
233
added)’.896 The same is true of legitimate self-defence and capital punishment – the
reference to ‘unlawful’ killing presupposing that certain kinds are lawful.
Arguably the people who die in the above circumstances are not innocent. Two of
them, the felon and the aggressor, participated in illegal acts to the detriment of
others, and the soldier was acting out his duty in attacking an enemy. While he may
not be acting illegally in doing so, the threat of death is operative both on him and the
person he is looking to attack. Neither is innocent in that sense, no matter whose side
they are on. The patient looking to have his life ended however is likely entirely
innocent. Therefore, ending his life irrespective of his desire to have it ended is seen
as palpably wrong since he has done nothing to warrant its end.
Again though it must be questioned on what grounds this prohibition stands. If it is
imposed against the backdrop of a purely religious point of view, the argument in
section 6.5.1a regarding the will of God and imposing it on those who do not share in
the imposer’s beliefs can again be reiterated here. If it is not, and the presumption of
innocence is touted as a reason not to allow euthanasia or AS, the MSB tackles the
repost thus: if indeed the presumption of innocence is to protect people from having
their lives shortened medically, why are passive euthanasia and situations
necessitating reliance on the doctrine of double effect looked upon any differently
than active euthanasia and AS? They are, this work claims, equivalent in their ends
and means, making the distinction between them groundless.
6.5.1.c The value of suffering
Another ground of religious objection to reforming the law stems from the Christian
belief in the value of human suffering. According to Christian teaching, physical
suffering is not an absolute evil, devoid of purpose. Rather, it is seen as having a
special place in God’s divine plan for the universe, allowing an opportunity for the
sufferer’s spiritual growth and a means of redemption.897 Contemporary writers like
896
Sheppard S, Selected Writings of Sir Edward Coke (Liberty Fund 2003).
Kluge E W, The Ethics of Deliberate Death (Port Washington, New York: Kennikat Press 1981) at
pgs. 31-32.
897
234
Herring and Lavi898 reiterate this sentiment, the former of the pair having already
been quoted in section 6.3 of this work as feeling that modern society needs to
reacquaint itself with an appreciation for pain.899 Furthermore, those who are in
contact with a suffering patient are given an opportunity to practice Christian
charity.900
This supposition has been vigorously attacked by numerous commentators,
Fletcher,901 Maguire902 and Williams903 most prominently. Fletcher notes, if suffering
was indeed part of God’s divine plan which must be respected, we should not be able
to give our moral approval to anaesthetics or to provide any medical relief to human
suffering. As section 6.3 of this chapter noted however, those who take suffering to
be a virtue are in a distinct minority. The MSB too disdains the idea that suffering, if
it can be abated with palliative care or other measures, should be needlessly endured
(unless the person enduring it wishes to).904 A mind clouded by pain and a body
wracked with it are not appropriate vehicles through which to enjoy the remaining
days or weeks of one’s life and it is dangerous to presume otherwise, just as it is
dangerous to presume that euthanasia or AS are the only way one may comfortably
end life.
The question of palliative care’s place in medicine is also raised by the belief that
pain is a virtue. If it is one, many people are being denied its experience because of
their reliance on palliative care. The implications of a dogmatic application of this
ideal undermine the entirety of the hospice movement and the advances made in
palliative medicine and this is not an implication that sits comfortably with the MSB
in any way. While it advocates personal choice regarding AS and euthanasia, it
nowhere implies in doing so that the role of palliative care should be diminished or
limited. Indeed it recognises that an increase in the availability of counselling and
898
Lavi S, (2001) op. cit.
Herring J, (2006) op. cit. at pg. 450.
900
Sullivan J V, The Morality of Mercy Killing (Westminster, Maryland: The Newman Press 1950) at
pg. 47.
901
Fletcher J, Morals and Medicine (Princeton, New Jersey: Princeton University Press 1979).
902
Maguire D, Death By Choice (Garden City, New York: Doubleday & Company 1984) at pg. 194.
903
Williams G, (1966) ‘Euthanasia and Abortion’ 38 University of Colorado Law Review 178 at pg.
180.
904
See for example the case of R v. Brown [1993] 2 All ER 75.
899
235
palliative alternatives to AS and euthanasia will be required if reform to the law that
provides avenues to assisted dying in those forms are opened.
The preceding discussion has focused solely upon the possibility that patients may
find some kind of worth in suffering at the end of their lives and the implications of
this on end of life care. Section 6.6 moves on from this issue to consider the impact
reforming the law might have on the physicians involved in end of life care. It will
argue that there is an element of psychological assistance lent to physicians by the
doctrines the MSB deems discredited, and will explore whether reforming the law
will cancel out this assistance, making reform a negative step to take.
6.6 Psychological assistance for the doctor involved
Section 3.5.1 of chapter 3 cited the psychological wellbeing of physicians as being of
paramount importance as an example of why the courts disdain acceding to the
requests of patients for leave to seek active assistance in dying, and that supposition is
an apt place to begin this section.905 Recall from that section the work of Doctor
Kenneth Stevens, Vice-President of Physicians for Compassionate Care and author of
a report on the effect performing euthanasia has on physicians. On the issue of
providing euthanasia one of his respondents noted,
“My point is that, because doctors find the request so difficult – the
most difficult request you can get as a doctor – that, in itself, is the
reason why they try to find whatever way they can not to do it.”906
This opinion, as the quotations in section 3.5.1 made clear, accords with the majority
of those given pursuant to Dr Stevens’ study, but not, interestingly, with the findings
of Emanuel et al907 and Meier et al.908 The former reported, following structured in-
905
It is acknowledged that psychological assistance of this nature is not the sole or main reason why the
courts rarely accede to such requests. There are numerous interrelated reasons why the status quo is
maintained, the main one likely being that passive euthanasia and the doctrine of double effect are
recognised as lawful, and the courts feel that the activities they allow should be allowed.
906
Select Committee on the Assisted Dying for Terminally Ill Bill, II Assisted Dying for the
Terminally Ill Bill [HL]: Evidence 405, 423, 448-50, 461, 484 (London: The Stationery Office Ltd.,
2005).
907
Emanuel E J et al, (1998) ‘The Practice of Euthanasia and Physician-Assisted Suicide in the United
States: Adherence to Proposed Safeguards and Effects on Physicians’ 280 Journal of the American
Medical Association 507.
236
depth telephone interviews with randomly selected oncologists from the United
States, that 53% of the physicians received comfort from having helped a patient with
euthanasia or PAS, 24% regretted having performed either and 16% reported that the
emotional burden of euthanasia or PAS adversely affected their medical practice.
Clearly, while there is a marked unease surrounding assisting death in either manner,
Emanuel et al found that it is not so pervasive as to affect every one of the
participants asked. In fact the number of physicians who felt comforted by being able
to assist is over double the number who regretted doing so. This finding is backed up
by the work Meier et al undertook. 81 physicians who had acknowledged performing
euthanasia or PAS responded to a mail survey regarding their feelings about having
done so (47% were prescriptions, 53% were injections). 18% of the respondents
reported feeling somewhat uncomfortable with their role in writing a lethal
prescription, compared to less than 1% feeling very uncomfortable with their role in
writing one.909
As with Emanuel et al’s findings, a greater proportion of the participants in the Meier
study were not uncomfortable with their actions than were uncomfortable with them.
That does not mean of course that the sentiments expressed in the quotations are
inaccurate or unrepresentative of those physicians’ personal experiences. However
there does not appear, going on this data, to be the marked discomfort with assisted
dying that one would expect if the practice itself brutalized or had marked negative
effects on those performing it.
Be that as it may, the impact of working in a situation where PAS or euthanasia may
be brought up or performed on the psychological wellbeing of the physicians
involved cannot be underestimated. The likelihood of practitioners having coping
mechanisms to allow them to work to their best capacity in high-stress scenarios is
acknowledged by this work, and it is only right that the law, when it and the practice
of medicine intersect, provides equal recognition. This recognition, the MSB claims,
comes in the form of passive euthanasia and the doctrine of double effect. Both of
Meier D E et al, (1998) ‘A National Survey of Physician-Assisted Suicide and Euthanasia in the
United States’ 338 New England Journal of Medicine 1193.
909
ibid.
908
237
these doctrines provide physicians with Soma for their consciences by allowing them
to distance themselves from the consequences of their actions, as discussed in
chapters 1 and 2, by claiming that it was either an omission of treatment that caused
the patient’s death, or that they did not intend the death.910
In dismissing these mechanisms the MSB does not likewise dismiss their
psychological importance to physicians. Nowhere in the MSB’s reasoning is the use
of passive euthanasia or reliance on the DDE labelled as wrong or immoral. Indeed, if
their use facilitates the proper care and management of patients and ensures that
practitioners are left with a clear conscience, their presence is undoubtedly a good
thing.
This recognition however does not blunt the fact that the MSB claims that the
contested distinctions, as well as affording the necessary psychological protection for
physicians, allows the truth of the physicians actions to go unacknowledged. They
allow for, according to Harris ‘...comprehensive self-delusion’911 regarding the
actuality of those actions (or purported inactions in the case of omitting treatment)
and make their practice more easily commensurable to practitioners’ moral stances.
When asked about the MSB, the distinction it draws between acts and omissions and
the reasons that distinction is maintained ‘Doctor 4’ responded:
“I mean I can see that point they’re basically killing somebody one
by giving and one by taking away. Er, whether it’s more of a
psychological thing, do we feel more psychologically responsible if
we, or the nurse we’ve instructed…it probably would end up being
us, had our hand on the end of the needle? Perhaps we do whereas
things like with…I think the withdrawal of drugs is perhaps slightly
different because you’ve given them something and you’ve looked at
them to see if it’s improving things, so you perhaps feel that you’ve
at least tried...”912
910
Huxley A, Brave New World (London: HarperCollins Publishers 1994). See section 1 of chapter 1
of this work for a definition of ‘Soma’.
911
Harris J, (1985) op. cit., at pgs. 33-39.
912
Interview with ‘Doctor 4’ by Edwards. J conducted on 3 rd September 2009.
238
This is a theme touched upon in chapter 2 section 2.3.2 in relation to dismissing the
distinction between intention and foresight in relation to double effect, and has proved
decidedly relevant here also. As Baroness Warnock put it, it is: “…a way of letting
you out of something without suffering pangs of conscience”,913 of putting distance
between one’s actions and their effect.
Though the comparison is a tenuous one to make, similar psychology surrounded the
inaction of bystanders to the murder of Kitty Genovese. Surrounded by apartment
buildings, the place where the victim was stabbed repeatedly was in full view of no
less than 70 people. Her cries for aid were heard and drew understandable curiosity,
but none of those 70 people called the police. After Ms Genovese was later found
dead, police officers questioned the people who had witnessed her murder and asked
why none of them saw fit to alert the authorities sooner. Each answered that they
believed someone in a neighbouring flat, or neighbouring building would take the
responsibility to do so.914
Now clearly this situation is not that faced by practitioners working with the
terminally ill. However, the idea that one shifts some perceived blame, brought by
causing another’s death, is not so farfetched an allusion to make. By using ‘passive’
euthanasia the practitioner is not ‘doing’ anything, but taking away some kind of
treatment: an action which ‘Doctor 4’ notes is “...something that we do every day in
our practice when they’re not working.”915 As such he is spared from the perceived
blame for causing the death personally – it was not his action that took the life, it was
either the omission, as in Bland’s case, or the underlying illness which did so.916
For all the above noted distancing may assist physicians like Doctor 4 in their daily
practice, Otlowski roundly disavows maintaining the current legal position on PAS
and euthanasia for the sake of the physicians’ mental state. She makes the point that:
913
An interview with Baroness Warnock conducted by Edwards. J on 19 th November 2007.
Darley J M and Latané B, (1968) ‘Bystander intervention in emergencies: Diffusion of
responsibility.’ 8 Journal of Personality and Social Psychology 377.
915
Interview with ‘Doctor 4’ by Edwards. J conducted on 3 rd September 2009.
916
Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 868.
914
239
‘Under a scheme of legalised active voluntary euthanasia, doctors’
participation in its performance would be entirely voluntary, thereby
minimising any risk of trauma or damage...also...active voluntary
euthanasia would be an option sought by only a small minority of
patients so the occasions on which a doctor would participate in its
performance are few and far between.’ 917
Furthermore, it is difficult justifying reliance on psychological wellbeing being a
fetter upon reforming the law since practitioners daily become involved in conduct
which hastens death and come away from it without reported psychological harm.
‘Doctor 4’ notes explicitly that the withdrawal of treatment is commonplace, yet
noted no ill effects from so doing in personal experience. It is questionable then
whether it is the relationship between the patient and the doctor, not the psychological
wellbeing of the latter which deserves more weight as an argument against reform.
6.7 Effect on the doctor/patient relationship
“...my practice has shown me…it’s highlighted perhaps some of the
risks involved in such things as euthanasia or PAS. And by that
I…well the first thing to say is that it’s something I’ve always been
opposed to. I’ve always seen it as just that step too far in the
doctor/patient relationship.”918
“…that depends on the relationship that you have with the patient I
think...Some would say it would be a betrayal of that
relationship...(but) isn’t at all. Because when you do active
euthanasia you do it with the complete consent of the patient and
family and…that’s what they want.”919
The above quotations, from ‘Doctor 4’ and ‘Doctor 3’ respectively, display polar
opposite views on the effect reform to the law, particularly reform that would
necessitate the legalisation of euthanasia or PAS, would have on the doctor/patient
relationship. Opponents, like ‘Doctor 4’, argue that to permit a physician to perform
PAS or euthanasia undermines the traditional role assumed by doctors under the
Hippocratic Oath, as healers trusted with the responsibility of prolonging and saving
life. Allowing either practice therefore undercuts that role by giving physicians the
power not only to prolong life, but to end it at their discretion. As a consequence, the
917
Otlowski M, (1997) op. cit.
Interview with ‘Doctor 4’ by Edwards. J conducted on 3rd September 2009.
919
Interview with ‘Doctor 3’ by Edwards. J conducted on 27 th June 2009.
918
240
trust and confidence necessary for the doctor patient relationship to work would be
destroyed.920 Doctors would be viewed by their patients as killers instead of healers,
and patients, who are in any case an already vulnerable group, would feel threatened
because of their doctor’s participation in performing PAS or euthanasia.921 They may
feel that they are being labelled as prime candidates for assisted dying simply because
of their age, disability or illness. Appleyard points this out in noting, ‘We all
repeatedly fall into the trap of identifying people too closely with their
circumstances.’922 As such, opponents argue that the current prohibition on both
practices must remain in order to preserve the doctor/patient relationship and ensure
that patients never fear their physicians’ motives in treating them to be nefarious.
It can neither be denied nor affirmed whether the explicit nature of the doctor/patient
relationship would change if either euthanasia or AS were legalised in England and
Wales since, quite obviously, it never has been in the past. There is therefore a lack of
appropriate precedent from which to make predictions about future knock-on effects
of legalisation. It is possible however to draw inferences from the Netherlands, where
assisted dying is permitted, to ascertain whether there has been any appreciable
impact on the doctor/patient relationship.
As chapter 5 section 5.7.1 pointed out, there have been a number of studies conducted
in the Netherlands over the past two decades to chart the use of euthanasia and PAS.
The most recent was conducted in 2005 and published in van der Heide et al’s paper
‘End-of-Life Practices in the Netherlands under the Euthanasia Act’923 in 2007. Their
findings indicate that there has been a decrease in the number of deaths occasioned by
euthanasia between 2001 (when 2.6% of all deaths in the Netherlands were caused by
euthanasia) and 2005 (compared to 1.7%). Incidences of non-voluntary and/or
involuntary euthanasia followed the same downward trend, with 0.7% occurring in
2001 as opposed to 0.4% in 2005.924
Interview with ‘Doctor 3’ by Edwards. J conducted on 27 th June 2009.
Huxley A, Brave New World (London: HarperCollins Publishers 1994).
922
Appleyard B, Brave New Worlds: Genetics and the Human Experience (Glasgow: HarperCollins
Publishers 1999) at pg. 54.
923
van der Heide A et al (2007) ‘End-of-Life Practices in the Netherlands under the Euthanasia Act’
356 The New England Journal of Medicine 1957.
924
The statistics presented by van der Heide et al do not distinguish between instances where
euthanasia was carried out without a specific request for it and where such a request cannot be given
because of a lack of competence.
920
921
241
These figures, while self-explanatory in and of themselves, require context to properly
represent the rarity of the practices they represent. In 2005 for example the 1.7%
incidence of death by euthanasia, while higher than the 0.1% of PAS, is dwarfed by
the 24.7% caused by ‘intensified alleviation of symptoms’. This category subsumes
‘...measures used to alleviate pain or other symptoms while taking into account the
possible hastening of death or appreciating that possibility...’,925 situations which, in
England and Wales, would often be considered under the doctrine of double effect.
Similar disparities are evident between instances of euthanasia and those of death
occurring as a result of withholding or withdrawing life-prolonging treatment
(15.6%), and between euthanasia and what van der Heide et al term ‘Continuous deep
sedation’ (8.2%).926 These figures show that, while assisted dying is available and
used, it still very much represents the minority in terms of what causes death.
While these statistics do not appear to relate directly to the doctor/patient relationship,
pertinent conclusions on euthanasia’s effect on it can be extrapolated from them.
Firstly, based on its comparative rarity, it can be concluded that physicians do not
resort to euthanasia or PAS at every given opportunity. Indeed it is roughly 4.8 times
more likely that a patient will die as a result of terminal sedation, and just over 14.5
times more likely that he will die as a result of increased treatment to palliate his
symptoms than for him to die as a result of euthanasia.927 If indeed it is medically
procured or medically hastened death that patients dread, they would seem to have
more to fear from practices which are part and parcel of common medical practice
than they do from euthanasia or PAS. Furthermore, if the likelihood of death
following a treatment decision is directly proportionate to the amount of damage
caused to the doctor/patient relationship, that relationship would appear to be at
greater risk of damage from the more common kinds of procedure that can end in
death than it is from PAS and euthanasia.
925
van der Heide A et al, (2007) op. cit., at pg. 1959.
van der Heide A et al, (2007) op. cit., at pg. 1961.
927
These figures were extrapolated from van der Heide’s statistical evidence.
926
242
The second observation is linked to the first in that it is based on likely the most
feared aspect of the availability of PAS and euthanasia to patients; the chance that,
against their will, they will be medically euthanised. van der Heide et al present an
interesting dataset on this issue, which is presented in Table 1 below.928
Table 1
Variable
No. of deaths studied
Discussion of practice (%)
With patient (or previous
wish of patient)
With relative of patient
With more than 1 other
physician
Ending life without Explicit
Request by Patient
2001
58
Ending life without Explicit
Request by Patient
2005
24
26.5
60.0
100.0
65.2
80.9
65.3
These figures, at first glance, appear startling in that they highlight the fact that for all
its rarity and despite the safeguards in place in the Termination of Life on Request and
Assisted Suicide (Review Procedures) Act (2002), non-voluntary euthanasia does
occur. Indeed it would appear, contrasting the 2001 and 2005 columns, that the Act’s
enactment more than doubled instances of non-voluntary euthanasia where a previous
request for assisted dying is concerned. Though the other figures in the 2005 column
show a modest decrease (from 100% to 80%) and an even more modest increase
(from 65.2% to 65.3%) in instances of non-voluntary euthanasia, the fact remains that
they do occur and that patients may well worry that they will end up as one of them.
That conclusion though is not without rejoinders. The figures quoted in Table 1 do not
show any instances of non-voluntary euthanasia being performed without any kind of
consultation, be it with the patient’s past wishes, his family or with another physician.
Taking the 2005 column as an example, any of the 24 deaths studied could be
included as one of the 60%, 80.9% and 65.3% presented in the ‘variables’ rows. The
physician in a case may be working with knowledge of his now incompetent patient’s
past wishes, in collusion with the patient’s family and having consulted one or more
other physicians about the case before performing euthanasia or PAS without the
928
van der Heide A et al (2007), op. cit., at pg. 1963.
243
patient’s presently expressed consent.929 If this interpretation is accurate, instead of
being a cause for patient alarm and fears over non-voluntary euthanasia, it should be a
reassurance that one’s care is not dependant on one physician’s thoughts and
decisions and that one’s decisions, reached at a point when one is competent, will be
respected unless and until sufficient cause is shown to disregard them. Instead of
degrading the doctor/patient relationship, the patient’s ability to feel certain that his
physician will carry out his wishes would, assumedly, strengthen the bond.
This opinion is not one shared universally however. Doctor 7, for example, when
questioned about the possibility of damage being done to the relationship between
doctors and their patients by legalising euthanasia, noted that:
“...I think that to some people anyway, it’s perhaps a very
conventional view but...some people...would be a bit confused and
maybe a bit upset and...a bit less reluctant to come and see you if
they thought that you might be trying to...might want to or thinking
about helping them on their way rather than healing them...if it was
the same doctor, the same person who was doing that as was trying
to cure you...then the patients might get confused about what you
were doing at one time or get worried about what you were doing at
one time.”930
Doctor 10, faced with the same question, took a different tack. When asked about the
impact assisted dying could have on the doctor/patient relationship, she turned the
question around and explained how her relationships with her patients would impact
her willingness to use PAS or euthanasia:
“...I’m sort of sitting here thinking could I do that (perform assisted
dying)? If that person becomes a friend could I do that? If I’m
personally gaining something from that relationship and then I’m
being asked to end it...is that something I could do? But then, if not,
am I being selfish? If it’s better for that person and that’s what they
want...I don’t have the answers. The more I talk about it the less I
have the answers truthfully. Maybe I’m feeling very guilty about...If
I lose something I won’t do it. But then, is that right? Am I taking
929
This conclusion could also apply to those patients who, in 2005, were not consulted about assisted
dying at all prior to it being carried out. The reasons for this lack of consultation, that the patients were
either unconscious (in 10.4% of cases) or incompetent due to young age (in 14.4% of cases) do not
preclude consultation occurring between the physician administering the assistance and the patients
family and or/other physicians. ibid., at pg. 1960.
930
An interview with ‘Doctor 7’ by Edwards J conducted on 21 st October 2009.
244
advantage of someone else because of my feelings? I don’t know...I
don’t know.”931
How then is the concern voiced by Doctors 4, 7 and 10 over the damage reform to the
law could do to the doctor/patient relationship explained by the MSB? During the
course of their careers physicians are involved in situations where death results from
their actions or inactions. Take for example the cases of Bland932 and R v. Adams.933
In the former the patient died as a result of his treatment being omitted, and in the
latter, arguably, because of the morphine the physician administered to ameliorate
pain.
Yet, even having gone through such situations during their practice, practitioners go
on to have long established careers in their chosen speciality, their patients none the
worse affected by their past experiences. That is not to imply that any other
practitioner facing a situation where death is proximate to their involvement with a
patient acted unlawfully, but rather to draw attention to the practical realities facing
the profession as a whole. These practical realities, it is argued, form the backbone of
the MSB in this context. The ‘step back’ itself is evidenced by the willingness of
doctors to act in ways which they know will shorten their patients’ lives under the veil
of ‘mere foresight’934 or ‘passivity’, but not in ‘active’ ways to produce the same
effect. In this way they distance themselves, as the theory suggests, from the death
resulting from their omission or foresight. As such, during the normal course of a
career a practitioner may come across numerous situations like that facing the
physicians in Bland and Adams, or similar ones, and the patients they go on to treat
seem to harbour no fear of them.935 It is highly unlikely therefore that patients fear
their doctors, regardless of the fact that euthanasia and/or PAS does appear to occur,
and are unregulated. Harm to the relationship between doctor and patient as a reason
to prevent reform therefore fails since the ‘feared’ acts, according to the MSB, are
already taking place, and there is no undue concern from the patient body. The impact
Interview with ‘Doctor 10’ by Edwards. J conducted on 18 th March 2010.
Airedale NHS Trust v. Bland [1993] 1 All ER 821.
933
R v. Adams [1957] Crim. L.R. 365.
934
Interview with ‘Doctor 2’ by Edwards. J conducted on 15 th April 2009.
935
While it is impossible to generalise this assertion to every patient in England and Wales, and while
it may be the case that certain people are of a mind to feel uneasy about euthanasia and PAS, none of
the physicians interviewed pursuant to this PhD expressed concerns about their patients fearing them,
irrespective of their thoughts on assisted dying.
931
932
245
of the use of the DDE and passive euthanasia on the perception patients have of their
physicians would make for an interesting follow up study to this Ph.D, but is, for the
moment, outside its ambit.
6.8 Conclusion
Weighing the moral arguments for and against reforming the law on PAS and
euthanasia is always subject to one’s own interpretation of the concepts involved. As
such, making an objective decision as to the moral rightness or wrongness of
reforming the law is incredibly difficult, as one’s objectivism is painted in subjective
colours. That is not to say however that conclusions cannot be rightly drawn from the
debate; only that they will simply be coloured by the MSB’s overarching moral
standpoint: the veneration of personal autonomy.
The preceding analysis has lent itself to the conclusion that the main arguments
against reforming the law, that doing so would be against God’s will; that it would
offend the sanctity of life and the prohibition on intentional killing; that there is value
in human suffering; that it would disrupt the psychological benefit gleaned by
physicians from having ‘passive’ euthanasia and the DDE as shields against
prosecution; and that it would damage the doctor patient relationship, are disputable
based on the MSB.
Furthermore, the MSB advocates an appreciation of human dignity that is inextricably
linked to the furtherance and respect for the principle of autonomy. Autonomy is a
component part of the inherent dignity of the human person, and it is also felt to be
one of life’s ‘primary goods’936 in much the same way life itself is.937 This parity,938 it
is claimed here, should be left to the person in question to resolve personally and
should not be decided based on society’s prevailing view that life is sacred and
936
Paterson C, (2008) op. cit.
See sections 4.2 and 4.4 of this work for more on Paterson’s thesis.
938
Paterson deals with this by ascribing autonomy ‘secondary good’ status and therefore implying that
life, as a primary good, overrides autonomy when the two are compared in terms of importance.
Paterson C, (2008) op. cit. For opposing arguments see Raz J, The Morality of Freedom (Oxford:
Clarendon Press 1986); Rasmussen D B and Den Uyl D J, Liberty and Nature An Aristotelian Defence
of Liberal Order (La Salle, Illinois: Open Court 1991).
937
246
therefore inviolable.939 For this reason, and all those already discussed and evaluated
in chapter 5, reform to the law appears to be a desirable and logical step.
939
See chapter 4 of this thesis for discussion of the sanctity of life, specifically section 4.2.1.
247
Chapter 7
Options for Reform
7. Introduction
Now that it has been concluded that reforming the law is a prudent measure, practical
guidance is needed regarding how best to bring about the required change. The
options and suggestions that exist are both many in number and eclectic in form. A
selection of them is listed below:940
1. Legalising euthanasia or physician assisted suicide (PAS);941
2. Creating a set of regulations on assisted dying with strict
requirements of consent;942
3. Creating a special defence for those who have committed
euthanasia;943
4. Providing immunity from prosecution if a physician involved in
assisting death follows a set procedure(s);944
5. Substituting murder and manslaughter with unlawful homicide;945
6. Forming a new category of offence called ‘killing with
compassion’;946
7. Creating a Permanent Standing Advisory Committee to draw up a
code of practice containing guidelines to review developments and
form Working Parties;947
8. Creating a notification system of an intended assisted death to an
independent body who would act on the patient’s behalf;948
9. The adoption of a ‘non-prosecution policy where there is no
evidence of a ‘victim’’949 and,
10. Removing euthanasia from the scope of the criminal law.950
940
Further options are highlighted and discussed in Williams G, Intention and Causation in Medical
Non-killing: The impact of criminal law concepts on euthanasia and assisted suicide (New York:
Routledge-Cavendish 2007).
941
Otlowski M, (1994) ‘Active Voluntary Euthanasia: Options for Reform’ 2 (2) Medical Law Review
161.
942
Downie J and Sherwin S, (1996) ‘A Feminist exploration of issues around assisted death’ 15 (2)
Saint Louis University Public Law Review 303.
943
The Society of Labour Lawyers’ evidence to the Royal Commission on Capital Punishment 194953: para 180.
944
Brazier M, Medicine, Patients and the Law (Harmondsworth, UK: Penguin Books 1992).
945
Lord Kilbrandon in Hyam v. DPP [1975] AC 55 at 98.
946
Boothroyd J, (1988) ‘Killing for compassion: The last legal taboo’ Law Magazine 18 March, 23.
947
Kennedy I, The Unmasking of Medicine (London: Granada Publishing Ltd 1983).
948
Eggleston S, (1994) ‘Whither Euthanasia?’ 47 Crim Lawyer 6.
949
Brahams D, (1992) ‘Criminality and Compassion’ 89 (35) Law Society Gazette 2.
248
Certain of these proposals have been more successful than others, and it is arguable,
since the use of the Policy for Prosecutors in Respect of Cases of Encouraging or
Assisting Suicide (2010)951 could amount to the adoption of a policy of nonprosecution, that the implementation of policy-based regulation per option 9,
specifically that based on the non-prosecution where no victim is apparent, has proven
itself to be the most prudent approach in dealing with issues like PAS and euthanasia.
Given that it is not a legislative instrument and therefore not binding, it is easier for
the courts, while referring to the Guidelines, to exercise the latitude they often do in
rendering judgement in end-of-life cases. On the possible causes of this latitude
Davies notes:
‘...though we profess to be basing our assessments of other people’s
actions on our own beliefs about their motives and intentions, it may,
in fact, be our antecedent...views about what is and is not permissible
that determine how we characterise agents’ motives and intentions,
and not vice versa.’952
As such, as Williams asserts, ‘...the courts...make a decision as to the result they desire
before defining the law in whatever way happens to achieve that desired result.’953
While the ability to achieve the ‘right’954 result is an aspect of the current law that the
MSB both appreciates and lauds, it is clear that the method employed by the courts to
do this, ‘...defining the law in whatever way happens to achieve (the) desired
result...’,955 is the prime cause of the inconsistency evidenced in chapters 1, 2 and 3 of
this work. It is also the case that, since the DPP’s Guidelines are discretionary, they
lack the clout necessary to affect anything more than the clarification of the law on
assisted suicide that they propound in paragraphs 4,956 5957 and 6.958
950
Sheldon S and Thomson M (eds), Feminist Perspectives on Health Care Law (London: Cavendish
Pub. Ltd 1998).
951
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010).
952
Davies A N, ‘The right to refuse treatment’ in Beauchamp T L (ed) Euthanasia Examined. Ethical,
Legal and Clinical Perspectives (Cambridge: Cambridge University Press 1996).
953
Williams G, Intention and Causation in Medical Non-killing: The impact of criminal law concepts
on euthanasia and assisted suicide (New York: Routledge-Cavendish 2007) at pg. 177.
954
The word ‘right’ here implies that the conclusions reached in such cases are morally correct in the
opinion of the court.
955
Williams G, (2007) op. cit., at pg. 177.
956
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010) point 4:
‘This policy is issued as a result of the decision of the Appellate Committee of the House of Lords in R
(on the application of Purdy) v Director of Public Prosecutions reported at [2009] UKHL45, which
required the DPP “the clarify what his position is as to the factors that he regards as relevant for and
against prosecution” (paragraph 55) in cases of encouraging or assisting suicide’.
249
How then, if not through an encompassing though unbinding policy, should the law
be reformed? All of the suggestions in points 1 through 10 (above) have their
strengths and weaknesses, the most prevailing of the latter being that each proposal,
implemented individually, would not provide enough protection for either physicians
or their patients. Points 2, 7 and 8 for example, while all being examples of
mechanisms which could enforce the regulation of assisted dying, provide no
guidance as to how the wider implications of being assisted to die, the effect it may
have on insurance for example, would be dealt with. For these mechanisms to be
useful they would need to be clarified and backed up by others which would perform
the roles left unfulfilled by such specific bodies/regulations.
Options 1 and 10 are more closely related than they appear at first glance. One way of
removing euthanasia from the scope of the criminal law would be to legalise the
practice, as has been done in the Netherlands959 and Belgium.960 Indeed, doing this
would also seem to be the most appropriate course of action if the MSB is taken to its
logical conclusion: if active euthanasia is already practiced under the cloak of
‘passivity’ and death by omission, it is seen as good medical practice in the scenarios
it is used in and should therefore be lawfully exercisable. Making an already quasilegal practice unequivocally legal would provide conscientious physicians with the
assurance that they would not be liable for the deaths caused through the exercise of
agreed and rightful medical practice.
On the other hand, legalising such a contentious practice without a single fetter or
safeguard would at best be careless, and at worst lead to the erosion of the trust
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010) point 5: ‘The
case of Purdy did not change the law: only Parliament can change the law on encouraging or assisting
suicide’.
958
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010) point 6:
‘This policy does not in any way “decriminalise” the offence of encouraging or assisting suicide.
Nothing in this policy can be taken to amount to an assurance that a person will be immune from
prosecution if he or she does an act that encourages or assists the suicide or attempted suicide of
another person’.
959
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002).
960
The Belgian Act on Euthanasia (2002).
957
250
implicit in the doctor/patient relationship961 and the likelihood of abuses increasing.
Doing so would also legitimise a practice that, but for the presence of a
compassionate and utterly blameless intent, bears a striking resemblance to culpable
homicide. While the MSB, as chapter 1 section 1 made clear, does not imply that
physicians act to murder their patients through using passive euthanasia or double
effect (DDE), the similarity must be borne in mind and taken account of in deciding
how best to reform the law.962
In this regard option 3 may seem a more appropriate one to implement, as it
acknowledges both the inherent badness of taking life, and the blamelessness of the
physician who acts to take it in the situations the MSB applies to. The same could be
said of option 4, the provision of immunity from prosecution for a physician who
procures death and follows a set of procedures in doing so. Neither option would
involve any overt legal recognition of the rightness of assisted dying, and both,
retroactively through option 3 and proactively through option 4, would provide
physicians with the protection the MSB professes them to be in need of.
Regardless of this seeming efficacy however, at present it seems unlikely that a
defence specific to an act of euthanasia will be enacted. Despite numerous chances to
do so, Parliament has yet to deem such reform necessary. A possible reason for this
reticence is the existence of defences like Necessity963 and Diminished Responsibility
which, when a case concerning euthanasia comes to court, can either be granted to
defend a morally upright defendant or denied to condemn an undeserving one. While
neither is specific to euthanasia, and while both, it has been argued in section 5.1 of
chapter 5 of this work, are inadequate for use in cases concerning doctors, precedent
evidences jurisprudential favouritism for their use in cases where ‘mercy’ is cited as
the motive behind a murder.964
An interview with ‘Doctor 7’ by Edwards J conducted on 21 st October 2009. Section 5.7.1 of
chapter 5 argued against the appearance of a slippery slope in the Netherlands. Also see chapter 6 of
this work, specifically section 6.7 on the effect reform may have on the doctor/patient relationship.
962
Williams G, (2007) op. cit., at pg. 177.
963
See the discussion of Re A (children) [2000] 3 FCR 577, [2001] Fam Law 18, [2001] 2 WLR 480,
[2000] 3 FCR 577; [2001] Fam 14 in section 7.1.3.
964
Heginbotham: Carter H and Khaleeli H, ‘Husband, 100, spared jail for “act of love” killing’, The
Guardian, 9th July 2004; http://www.dailymail.co.uk/news/article-1350734/Pensioner-smothered-wifemercy-killing-freed-jail-appeal-judges.html (accessed on 21st February 2011 at 12.46pm);
961
251
This apparent favouritism is also related to options 5 and 6, which propound new
ways of grading the act of murder to reflect its severity as an appropriate way of
dealing with euthanasia.965 Whether or not formal changes to the law will be made to
reflect such suggestions is a matter for debate. The Law Commission has already
rejected one such proposal on the grounds that grading an offence with reference to
the defendant’s motive would be too complex to be effective.966 That said, an
informal kind of gradation is already evidenced through the use of defences in cases
where culpability is felt to be lacking or the defendant is seen to be on the moral high
ground. ‘The different mental elements required for different offences enable grading
of different levels of wrongdoing...’967 and dictate the rigorousness of punishment.968
It is also the case that offences themselves are graded in terms of severity; the
distinction between murder and manslaughter for example, that between theft and
robbery and the differing kinds of offence against the person detailed in section 39 of
the Criminal Justice Act (1988) and sections 47, 20 and 18 of the Offences Against the
Person Act (1861).
Specifically with reference to option 6, killing with compassion, it has been found in a
number of studies – by Mitchell969 and Pfeifer970 in particular – that the public
perceive compassionate killings differently from the ‘more terrible types of killing’.971
This difference is implied at law through considerations in sentencing,972 but it is
outwardly unacknowledged; both compassionate and non-compassionate killings are
http://www.dailymail.co.uk/news/article-371430/Mercy-killing-father-cleared murder.html (accessed
on 21st February 2011 at 12.46pm).
965
Duff R A, Intention, Agency and Criminal Liability. Philosophy of Action and the Criminal Law,
(Oxford: Basil Blackwell 1990); HLSC (1988-9) Murder and Life Imprisonment, HL Paper 78-1 (the
Nathan Committee).
966
The ladder principle is explained in Law Com No. 177 (2005) A new Homicide Act for England and
Wales? at paragraph 1.64 as follows: ‘In structuring the general homicide offences we have been
guided by a key principle: the ‘ladder’ principle. Individual offences of homicide should exist within a
graduated system or hierarchy of offences. This system or hierarchy should reflect the offence’s degree
of seriousness, without too much overlap between individual offences’.
967
Williams G, Intention and Causation in Medical Non-killing: The impact of criminal law concepts
on euthanasia and assisted suicide (New York: Routledge-Cavendish 2007) at pg. 183.
968
Robinson P H, Structure and Function in Criminal Law, (Oxford: Clarendon Press 1997).
969
Mitchell B, (1998) ‘Public perceptions of Homicide and criminal justice’ 38 (3) British Journal of
Criminology 453.
970
Pfiefer J E et al, (1996) ‘Euthanasia on trial: Examining public attitudes toward non-physician
assisted death’ 52 (2) Journal of Social Issues 119.
971
Williams G, (2007) op. cit., at pg. 184.
972
See for example section 12 of the Criminal Justice Act (2003).
252
charged as murder no matter the circumstances. Whether or not redefining the remit
of culpable homicide to include euthanasia is a prudent way of remedying this
situation is, as all of the suggested reforms are, debateable. As was noted with
reference to options 2, 7 and 8, simply redefining a portion of an offence to include a
new kind of conduct would do nothing to protect either patients or the physicians
caring for them from harm or the danger of prosecution.
A more substantive wide-ranging reform would be necessary to make the required
adjustments in a more than perfunctory fashion, and this, it is claimed here, would be
best achieved through the use of legislation.973 In a recent interview pursuant to this
work Lord Joffe expressed a similar belief. He posited that implementing an entirely
new piece of legislation would be the most appropriate way of achieving the close and
detailed regulation of any mechanisms that allow access to assisted dying that both he
and the MSB believe to be necessary.974 During the interview the option of reforming
an existing piece of legislation was also discussed, and the Suicide Act (1961)
provided an apt example of a candidate for amendment. Lord Joffe felt however, that
amending the 1961 Act’s provisions to legalise assisted suicide (AS) would
necessitate a similar degree of restructuring as implementing a new piece of
legislation would. Take for example a hypothetical reform which repeals the recently
amended section 2 prohibition on AS, an unlikely option, both for Parliament’s
current stance on AS and because of how wide its scope would be. Guidance would
be needed on, amongst other things, what circumstances one could rely on the
provision, on who could rely on it and whether the legalisation applied to both laymen
and practitioners. Lord Joffe felt that these extraneous considerations could not be
adequately dealt with in section 2 itself, and that including them within the Act would
require more scope for elaboration than its ambit allows.
973
This assertion is based on the fact that in jurisdictions where assisted dying has been regulated by
the law, the regulation has been legislative. This work is chiefly concerned with the legislation of six
countries: Australia and the now repealed Rights of the Terminally Ill Act (1995); Belgium and The
Belgian Act on Euthanasia (2002); The Oregon Death with Dignity Act (1997); the Netherlands and
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002); The Swiss
Criminal Code (1937) sections 111, 112, 114 and 115; and Lord Joffe’s original and amended versions
of The Assisted Dying for the Terminally Ill Bill (2004), (2006). A telephone interview with Lord Joffe
on 15th July 2007 by Edwards. J.
974
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
253
While the form the eventual reform will take is now settled, its CONTENT is still
undecided. Any and all of the suggestions in options 1 through 10 could be
implemented through legislation, but, having noted their shortcomings in the
preceding discussion, two will be discussed in this chapter as the most promising
possibilities. Selected for their ability to provide the regulation necessitated by the
MSB’s conclusion that euthanasia (the illegal active form) is already practiced under
the guise of ‘passive’ euthanasia and is unregulated, the options discussed are as
follows:
1. creating a special defence for those who have committed
euthanasia;975
2. providing immunity from prosecution if a physician involved in
assisting death follows a set procedure(s).976
At first glance this selection may seem ill-advised, especially in light of Parliament’s
seeming disinclination to support either option presently. However if Parliamentary
reticence alone presented an insurmountable obstacle to suggesting law reform, this
thesis would be undermined from its inception since it concerns just that.
Furthermore, it is posited here that the fact that the current law can be stretched to
accommodate assisted dying does not negate the need for a specialised defence to do
the same. The coming sections will explore this possibility with a view to discovering
if the creation of a defence specific to physicians who perform assisted dying is a
feasible avenue for law reform.
7.1 A special defence for physicians who ‘commit’ euthanasia
At present, there is no single dedicated defence applicable to physicians who procure
the death of their patients by either PAS or euthanasia. Instead they are faced with a
confusing and, as section 5.1 of chapter 5 noted, often irrelevant hotchpotch of
defences, few of which serve any meaningful purpose in terms of exonerating the
physician-defendant. These defences, section 5.1 posited, would be either over-
The Society of Labour Lawyers’ evidence to the Royal Commission on Capital Punishment 194953: para 180.
976
Brazier M, (1992) op. cit.
975
254
stretched in accommodating euthanasia, or are simply irrelevant to it altogether.977
There are, however, avenues which remain open to the possibility of reform. Mercy
killing, divorced entirely from diminished responsibility, has been mooted extensively
as a possible defence for doctors who have practiced assisted dying.978
The concept of mercy is used by the courts in cases were clemency is felt more
appropriate than the mandatory life sentence for murder a defendant would otherwise
face. Depending on the circumstances of the case, this abrogation of the harshness of
the criminal law can be brought about in a number of ways. For instance, in decades
past when England and Wales still imposed capital punishment for murder, the Home
Secretary has on occasion stepped in to commute the death penalty in cases where the
circumstances implied the presence of mercy.979 Sentencing discretion is another tool
which has often been used to reflect what the courts feel to be the appropriate measure
of censure for a merciful murder,980 and the defence of diminished responsibility (DR)
is often applied in cases where the defendant is allegedly suffering from a mental
problem brought on through the stress of caring for an ailing relative.981
While the availability of these methods may imply judicial leniency in cases where
mercy is the alleged motive for a killing, there is no actual standardised defence of
‘mercy killing’ available at law. Mercy killing has been mooted extensively as a
possible defence for doctors who have practiced assisted dying. The Royal
Commission on Capital Punishment between 1949 and 1953,982 and more recently the
Law Commission have made serious proposals for its inclusion as an optional defence
to a charge of murder where ‘a severely depressed husband...has given in to his wife’s
977
It could hardly be said that a physician who performs euthanasia did so in self defence for example,
or under the influence of an intoxicant. He could not use the defences of insanity, automatism either, or
the defence of participating in a suicide pact, for there simply is no pact to participate in.
978
As section 5.1 of chapter 5 pointed out, the ‘defence’ of mercy killing is not actually used in and of
itself to absolve those who kill with merciful motives of guilt. Indeed at present it does not exist outside
of cases where diminished responsibility has been raised to a charge or murder where the defendant is
suffering from a mental problem brought on through the stress of caring for an ailing relative.
979
‘Invalid son’s death’ The Times 2 October 1934.
980
‘Daughter freed over mercy killing bid’ The Evening Standard 28 September 2001; Pratt C, (1974)
‘For beloved Emma, a painless death’ Daily Express 26 October 1974.
981
Carter H and Khaleeli H, (2004) op. cit; http://www.telegraph.co.uk/comment/personalview/3621791/Killing-your-son-is-not-proof-of-love.html (accessed on November 1st 2010 at
10.24am).
982
Royal Commission on Capital Punishment (1949-53) Report of the Royal Commission on Capital
Punishment, paras 177-80.
255
demands that he “put her out of her misery”...’983 Indeed at paragraph 1.114 in its
2005 Report ‘A new Homicide Act for England and Wales?’984 the Commission
recommended that mercy, recognised in section 269 and Schedule 21 of the Criminal
Justice Act (2003) as a mitigating factor in murder cases, ought to be considered
‘...outside the scope of murder...and into manslaughter instead.’985 Murphy’s
commentary is in keeping with the Law Commission’s conclusions and describes
mercy killing as a species of:
‘... manslaughter...where the dilemma which has caused the accused
to kill can be said to have given rise to depression or some other
medically recognised disorder which can be said to be the cause of
some abnormality of mind.’986
Another possible defence is that of necessity. This defence, unlike mercy killing, has
already been applied to medical practitioners, though the validity of this use is up for
debate. The chapter will explore these issues in the following order. Section 7.1.1 will
question whether a defence of mercy killing would be a feasible option for reforming
the law. Section 7.1.2 moves on to assess whether a defence of mercy killing would
be a workable option for practitioners to use. Following this discussion section 7.1.3
will focus on the possibility of using necessity as a defence for physicians who
‘commit’ euthanasia.
7.1.1 Mercy Killing
In 1973 the Criminal Law Revision Committee (CLRC) found it ‘...odious that a life
sentence should have to be imposed in cases...’987 where mercy clearly underpinned
the defendant’s actions in killing another. It felt that it ought to be possible for a judge
to make a hospital order under section 60 of the Mental Health Act (1959),988 or a
983
Law Com No. 177 (2005) op. cit., at paras. 6.54 and 6.4.
ibid.
985
ibid., at para. 1.114.
986
Murphy P (ed), Blackstone’s Criminal Practice (Oxford: Oxford University Press 2007).
987
Criminal Law Revision Committee 12th Report (1973): Penalty for Murder Cmnd. 5184, para 42;
The legal correspondent, (1976) ‘Mercy Killing And The Law’ 6047 (2) The British Medical Journal
1333.
988
‘S. 60.-(1) Where a person is convicted before a court of assize or quarter sessions of an
offence other than an offence the sentence for which is fixed by law, or is convicted by a
magistrates' court of an offence punishable on summary conviction with imprisonment, and the
following conditions are satisfied, that is to say- (a) the court is satisfied, on the written or oral
984
256
probation order, or to grant a conditional discharge in cases were justice did not
require the defendant be imprisoned. Three years after the Report on the Penalty for
Murder989 was released, the CLRC circulated a Working Paper990 which suggested a
‘dramatically original way’991 of formalising the use of mercy in cases where ‘mercy
killings’ occurred. It proposed an offence applicable where a person unlawfully kills
another for compassionate reasons. For the offence to apply the victim would either
need to have been, or have been believed by the defendant to be:
(1) permanently subject to great bodily pain or suffering, or
(2) permanently helpless from bodily or mental incapacity, or
(3) subject to rapid and incurable bodily or mental degeneration.
Added to these stipulations, the CLRC pointed out that the accused must have had
reasonable cause for his belief that the victim was suffering in one of the above three
ways, but did not specify whether the reasonableness requirement was to be assessed
objectively or subjectively. He (the accused) must also have either had the consent of
his victim prior to the killing, or at least have been aware that the victim would not
dissent to it being carried out. The difficulties posed by uncommunicative victims, the
very young or mentally incompetent for example, were said to be overcome if it could
be proved that the accused did not believe, or did not have reasonable cause to
believe, that his victim wished to continue living.
The problems with the CLRC’s proposal are, from the above description, readily
apparent. Each aspect of the offence is taken from the point of view of the defendant.
What would concern the court if this proposal became law would be what the
defendant reasonably believed to be the case, not what was the case in actuality. It
evidence of two medical practitioners (complying with the provisions of section sixty-two of this
Act),- (i) that the offender is suffering from mental illness, psychopathic disorder, sub-normality or
severe sub- normality ; and (ii) that the mental disorder is of a nature or degree which warrants the
detention of the patient in a hospital for medical treatment, or the reception of the patient into
guardianship under this Act ; and (b) the court is of opinion, having regard to all the
circumstances including the nature of the offence and the character and antecedents of the
offender, and to the other available methods of dealing with him, that the most suitable
method of disposing of the case is by means of an order under this section, the court may by
order authorise his admission to and detention in such hospital as may be specified in the order
or, as the case may be, place him under the guardianship of a local health authority or of
such other person approved by a local health authority as may be so specified.’
989
Criminal Law Revision Committee 12th Report (1973) op. cit.
990
Criminal Law Revision Committee 14th Report (1980): Working Paper on Offences against the
Person Cmnd. 7844, paras 79-87.
991
The legal correspondent, (1976) op. cit at pg. 1333.
257
could even be alleged that, by including within its proposal a mechanism for dealing
with the situation ‘where the deceased is too ill or too young to communicate his
wishes...’992 non-voluntary euthanasia is silently deemed appropriate in certain
situations. While this is highly unlikely to be the case in reality, it is questionable
precisely who the CLRC had in mind as potential victims for the mercy killer, and
who, by implication, they felt would be the mercy killer himself. Two examples were
highlighted in the British Medical Journal,993 which, curiously, did not concern
medical killing. Rather, it was felt that ‘...a mother (who) killed her deformed child or
a husband who terminated the agonies of his dying wife’ best represented cases of
mercy killing.
Irrespective of the fact that mercy may be a component of the motive a practitioner
has in practicing euthanasia, the MSB supports the implications of the CLRC’s
examples in noting that mercy killing, even though it is not recognised as a defence
proper, has chiefly been applied in cases concerning laymen. Take for example the
cases of Sawyer,994 King,995 Ambrose996 and McShane.997 The prevailing theme
through these cases is judicial disdain for the entire subject of mercy killing where
violence is used to procure the death. Kay J presiding over the case of Sawyer
proclaimed in passing sentence ‘...the court does not and will not sanction any form of
mercy killing.’998 Sawyer had killed his terminally ill partner in a distinctly violent
manner. He had hit, strangled and then drowned the victim and, even though it was
alleged that his partner had asked for his assistance in dying, this consent could not
vitiate the fact that ‘...no one could view this as a mercy killing because of the
substantial physical violence.’999 He was sentenced to 30 months in prison.
A comparable sentiment was expressed by the judge in the King case, where he hoped
that ‘no one will think that I am lending countenance to what is sometimes loosely
called mercy killing.’1000Ambrose, the defendant in a case like Sawyer and King, was
992
ibid., at pg. 1333.
ibid.
994
‘Man jailed for killing gay lover dying of Aids’ The Guardian 31 July 1993.
995
‘Attempted murder of husband’ The Times 16 October 1953: 4.
996
Roland J, ‘Manslaughter son is jailed’ Evening Post (Nottingham) 1989.
997
R v. McShane (1977) 66 Cr App Rep 97.
998
The Guardian 31 July 1993 op. cit.
999
ibid.
1000
The Times 16 October 1953 op. cit.
993
258
also imprisoned after he bludgeoned his mother to death with a hammer after she
requested he help her die.1001 The case of McShane is another example of how the
courts disdain mercy killing. The defendant in this case wanted both to end her ailing
mother’s suffering and gain access to a sizeable inheritance on her death. This duality
made relying on the apparently merciful aspect of her actions impossible. Her two,
two year sentences were subsequently upheld on appeal.1002 The case of R v.
Cocker1003serves as another example of judicial disdain for the concept of mercy
killing. After the defendant’s wife Esther, a Multiple Sclerosis sufferer, persistently
requested his assistance in dying over many months he smothered her with a pillow.
At trial he tried to use the defence of provocation but failed and was convicted of
murder. He was released after 4 years.
Despite this seemingly negative precedent, there is a distinct trend amongst court
decisions implying that the presence of mercy in certain circumstances will afford a
defendant leniency he may not have received in its absence. Take the case of Mrs
Brownhill for example, who killed her 30 year old son in an effort to spare him having
to suffer through a life she described as ‘a living death’.1004 Originally charged with
murder and sentenced to death, the Home Secretary recommended that she be
pardoned, and a year after her arrest she was indeed released. A similar circumstance
faced Mr Long, who was convicted of the murder of his 7 year old ‘imbecile’
daughter.1005 He, like Mrs Brownhill, had his sentence commuted, though he still
faced life imprisonment. Mrs Marshall too found herself with a comparatively minor
sentence for the mercy killing of her 90 year old, bedridden mother. She crushed
sleeping pills into her food in desperation at the quality of her life, and pleaded guilty
to a charge of attempted murder. Unlike Mr Long, her 12 month sentence was
suspended for two years, Rodwell QC reflecting what he perceived to be the
exceptional circumstances of the case in the sentence.1006 Similar leniency was shown
to Mrs Wise, who, according to Jones J, ‘acted, although wrongly, in what you
Roland J, ‘Manslaughter son is jailed’ Evening Post (Nottingham) 1989.
R v. McShane (1977) 66 Cr App Rep 97.
1003
R v. Cocker [1989] Crim. L.R. 740.
1004
‘Invalid son’s death’ The Times 2 October 1934.
1005
‘News in brief’ The Times 23 November 1946; ‘News in brief’ The Times 29 November 1946
1006
‘Daughter freed over mercy killing bid’ The Evening Standard 28 September 2001.
1001
1002
259
considered your child’s best interests. This is an extreme case among exceptional
ones. You have suffered enough.’1007 She was placed on probation for 12 months.
This trend has also been recognised legislatively in the Criminal Justice Act (2003)
which proclaims that the presence of mercy may be a mitigating circumstance that
warrants a lower term.1008 Be that as it may, the alleged presence of a merciful motive
does not guarantee a defendant leniency by any means. Compare for example the
cases of Gilderdale1009 and Inglis.1010
Frances Inglis gave her paralyzed son a heroin overdose as he lay in bed in the
nursing home where he was cared for. She was subsequently convicted of his murder,
though her life sentence has recently been reviewed and she will now be eligible for
parole in 5 years.1011 Mrs. Inglis had tried once before her successful attempt to end
the young man’s life, as she felt he would not wish to persist in a condition she felt he
would have found unbearable. Nowhere in the reported circumstances was it clear that
her son had ever indicated a desire for euthanasia or AS, and given her previous
attempt on his life the court felt imprisonment was the only just recourse it had.1012
Mrs. Inglis’ case can be juxtaposed against that of Kay Gilderdale, the ‘devoted
mother’1013 of Lynn Gilderdale, a sufferer of ME who described her existence, in the
months preceding her death as ‘unimaginably wretched’.1014 Mrs. Gilderdale, at her
daughter’s behest, assisted her suicide by providing both morphine, which Lynn selfadministered through the syringe-driver her everyday doses were given through, and
also by crushing up Diazepam, Temazepam and Zopiclone tablets and feeding them
through her daughter’s naso-gastric tube. Hours later, Mrs. Gilderdale administered a
further two doses of morphine through the syringe-driver. Lynn died some 30 hours
after she asked her mother to help her die.
Pratt C, (1974) ‘For beloved Emma, a painless death’ Daily Express 26 October 1974.
The Criminal Justice Act (2003) section 269, Schedule 21, para 11(f).
1009
http://www.guardian.co.uk/uk/2010/jan/25/kay-gilderdale-devoted-mother (accessed on June 4th
2010 at 15.45pm).
1010
R v. Inglis [2010] EWCA Crim 2637.
1011
http://www.dailymail.co.uk/news/article-1329027/Frances-Inglis-gave-son-lethal-heroin-injectionjail-term-slashed.html (accessed on May 22nd 2010 at 13.24pm).
1012
http://www.dailymail.co.uk/news/article-1244731/Frances-Inglis-guilty-murder.html (accessed on
May 22nd 2010 at 13.24pm).
1013
Op. cit., n. 980.
1014
ibid.
1007
1008
260
Mrs. Gilderdale would have faced a change of murder, but evidential inconsistencies
surrounding the precise cause of her daughter’s death precluded this course of action.
It was not clear from the toxicology reports whether Miss Gilderdale died as a result
of the morphine she self-administered or if the acute morphine intoxication which
eventually killed her resulted from her mother’s actions.
While there are clear parities between the Inglis and Gilderdale cases, most strikingly
the assertion of both women that they were acting ‘mercifully’,1015 it is quite clear on
the facts why their results differed. Not only had Miss Gilderdale repeatedly stated her
wish to end her life, both personally to her parents and later on the blogs she
maintained, she was able, unlike Mrs. Inglis’ son, to self-administer the preliminary
doses of morphine. As well as adding to the evidential uncertainty regarding the cause
of death, this willingness to act to pursue a course of action that would likely prove
lethal alludes strongly to both her wish to die, and to her consent to assistance in
dying. This consent would by no means exonerate Mrs. Gilderdale, but when
compared to the Inglis scenario, where the defendant’s son had never expressed any
desire for death, it appears to be the less questionable of the two cases.
All of these cases are instructive in settling on a tentative definition of what a mercy
killing and a mercy killer amount to. A mercy killing is undertaken, as its name
suggests, with a merciful motive in the mind of the defendant. Judges are more likely
to exercise their own mercy in sentencing when evidence of such a motive is readily
apparent, and are less likely to do so when one is not. The cases of Sawyer and
Ambrose, both of which concerned massively violent deaths for the victims involved,
are testament to this. The defendants in those cases, as was noted above, received
custodial sentences in spite of their apparently merciful motives, remorse and familial
relations with their victims.
It also seems that judges are more comfortable referring to a case as a mercy killing
and ruling accordingly if the victim died as a result of suffocation or an overdose.1016
1015
ibid; Op. cit. n. 975.
Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: RoutledgeCavendish 2007) at pg. 47.
1016
261
The latter preference may be explainable with reference to the Gilderdale judgement
and the evidential inconsistency as to the precise cause of death which assisted the
defendant’s exoneration. Any kind of gentle death is preferred to the Ambrose and
Sawyer examples of horrific violence in procuring a victim’s ‘merciful’ end, as it is
much easier to imply mercy and convince a jury of its existence if the death in
question was easeful.1017 Furthermore, clemency is more likely in cases where the
victim was terminally or chronically and somatically ill,1018and less likely where he
was not suffering at all. Suffering however is not only considered indicative of the
need for clemency when it is the victim who was suffering as a result of an illness.
The ‘overwhelming emotional stress’1019 suffered by the relatives of chronically and
terminally ill people in caring for them is often cited in cases where a mercy killing
has taken place as a basis on which to ground the defence of diminished
responsibility. The case of Heginbotham is an example of this.
The defendant in the Heginbotham case was the oldest man to be brought to court
charged with murder. He was 100 years old when he slit his wife’s throat after she
was taken into a home following a fall. After he had done this he returned home and
attempted to commit suicide. Mrs Heginbotham had never expressed any desire for
assistance in dying, nor was there evidence of a suicide pact between them, but this
fact did not stop a successful plea of manslaughter based on DR being made on the
defendant’s behalf. Heginbotham received a 12 month community rehabilitation order
and was released into the care of his family after Leveson J ruled:
‘The killing of your wife, to whom you had been married joyously
for some 67 years, followed by your attempt to take your own life,
was an act of desperation carried out in an attempt to end her
suffering while you were under intolerable pressure. It was, in truth,
an act of love and I have no doubt that you suffered a mental
disorder at the time and the responsibility which you bear is
substantially reduced. It was, as you well know, a terrible thing to do
but I entirely accept the circumstances in which you did it, and your
feelings of guilt and remorse have been truly overwhelming.’1020
1017
ibid., at pgs. 47-48.
See for example the Heginbotham and Gilderdale cases, where the victims were chronically, and in
Gilderdale’s case terminally ill.
1019
HLSC (1988-9) Murder and Life Imprisonment, HL Paper 78-1 (the Nathan Committee) Vol 1,
para 99; Law Com No. 177 (2005) op. cit., at para. 8.54.
1020
Carter H and Khaleeli H, (2004) op. cit.
1018
262
There are interesting parities between Heginbotham’s case and that of Mr Cocker,
detailed above. Both of the men in question murdered a loved one. Both, though Mr
Heginbotham is arguably the more violent of the two, did so in a manner that likely
distressed the victim, or would have if she was aware. Both had been happily married
to their eventual victim for a great many years. The only disparity was the defence
employed by counsel in their trials. Huxtable feels, and the MSB concurs,1021 that Mr
Cocker’s counsel did him a disservice by pleading provocation on the basis of
repeated requests for assistance in suicide.1022 Whether those requests were violent at
times or not, they alone could not provoke the needed sudden and temporary loss of
self-control needed to utilise the Homicide Act’s now repealed section 3 defence. Had
Cocker alleged that he was suffering from a ‘mental disorder’, as Leveson J felt
Heginbotham was, and used that as a basis for a plea of DR, he may have been treated
with more leniency. DR was again used by the court in the case of Andrew Wragg.
Mr. Wragg killed his severely disabled young son because he felt unable to care for
him, and that his quality of life was negligible. Mr. Wragg was not given a custodial
sentence for the killing. He was convicted of manslaughter by DR and received a 2
year suspended sentence.1023
In situations like those facing Heginbotham and Wragg, where stress overrides their
better judgement and prompts them, in Mr Heginbotham’s words to ‘go berserk’1024
and kill the person in their care as a final expression of ‘familial love’,1025 the defence
of DR serves its purpose in mitigating a charge of murder admirably. However, if
applied to a mercy killing which has taken place in the medical setting, the
effectiveness of DR is greatly reduced. As section 5.1 of chapter 5 of this work notes,
the lack of a close familial bond, and the availability of the DDE make recourse to a
defence which hinges upon mental incapacity both unnecessary and, if indeed it was
used, inaccurate. It is improbable that a professional carer or physician would come
1021
See chapter 5 sections 5.1 of this work for a discussion of provocation and diminished
responsibility in relation to cases of AS. The same arguments apply here.
1022
Huxtable R, (2007) op. cit.
1023
http://www.telegraph.co.uk/comment/personal-view/3621791/Killing-your-son-is-not-proof-oflove.html (accessed on November 1st 2010 at 10.24am).
1024
http://www.telegraph.co.uk/news/uknews/1466543/100-year-old-cut-his-ailing-wifes-throat-in-actof-love.html (accessed on November 2nd 2010 at 13.50pm).
1025
Op. cit., n. 974.
263
under the overwhelming stress which can cause family members like Heginbotham or
Wragg to act in the ways they did.
If DR is taken from the equation then, could it be possible, in upholding the MSB’s
conclusion that reform is necessary, to provide a defence of mercy killing tailored to
the needs of physicians and divorced from the idea of mental incapacity entirely?
Section 7.1.2 explores this possibility.
7.1.2 Mercy Killing as a doctor’s defence?
Mercy killing, as the preceding section noted, appears to be a defence geared towards
the lay-person. None of the defendants mentioned: Heginbotham,1026 Cocker,1027
Sawyer,1028 Ambrose1029 or McShane1030 were physicians, nor did they commit their
crimes in a medical setting. Indeed the most recent reform attempt proposed by the
Law Commission concerned laymen exclusively.1031 As section 7.1.1 made clear,
fitting a physician into the current mould used to define a mercy killer would be
extremely difficult, irrespective of the presence or absence of a merciful motive for
acting. Consequently, the applicability of the legal frameworks currently surrounding
the ‘defence’ for physicians and physician assisted death is questionable.
However, the courts’ appreciation of mercy killing is not based upon the presence of a
mental abnormality alone. Section 7.1.1 implied certain criteria with which the courts
distinguish between mercy killings and non-mercy killings, and these will go some
way to informing the possible content of a defence:
1. The defendant had a ‘merciful’ motive;
2. A ‘gentle’ death, preferably brought through an overdose;1032
3. A complete lack of violence of any kind1033, and;
Heginbotham: Carter H and Khaleeli H, ‘Husband, 100, spared jail for “act of love” killing’, The
Guardian, 9th July 2004.
1027
R v. Cocker [1989] Crim. L.R. 740.
1028
Sawyer: The Guardian 1993 op. cit.
1029
Ambrose: Roland. J, (1989) op. cit.
1030
R v. McShane (1977) 66 Cr App Rep 97.
1031
Law Com No. 177 (2005) op. cit.
1032
Huxtable R, (2007) op. cit., at pgs. 47-48.
1026
264
4. The victim was suffering from a somatic illness that was either
chronic or terminal.1034
The CLRC’s 1976 Working Paper1035 provides supplementary criteria which are
equally necessary, regardless of the identity and vocation of the defendant:
5. The accused must have had an objectively verifiable reasonable
cause for his belief that his victim was suffering from an illness of a
kind noted in point 4, above, and;
6. The accused must have had the consent of his victim prior to the
killing.
There are, of course, problems with all six of these criteria. Quantifying precisely
what constitutes a ‘gentle’ death for example is fraught with obstacles, particularly
because there are those who would argue that ANY action that results in a death,
however objectively gentle it seems, inflicts violence on the recipient.
Requiring that the ‘victim’s’ illness be terminal would also pose problems
definitionally. Terminal illnesses are known to be ‘incurable’,1036 yet not all incurable
illnesses are terminal. They can also be somatic, yet, again, not all somatic illnesses
are terminal. While it may be easy enough for a physician to form an objectively
verifiable reason for his belief that the victim was suffering from such an illness,
precisely what this belief concerns is unclear. It could imply either than the physician
has reason to believe the patient has a terminal illness, or that he has reason to believe
that the patient is actually suffering while having that illness.
The most pressing of the problems encountered in using the above noted criteria
however is the reliance on a barely objectively provable criterion, a merciful motive,
as the issue upon which liability rests. The only real evidence of mercy’s presence,
but for that which can be implied from the facts surrounding the case, would be the
testimony of the physician himself. That is not to imply however that referencing
1033
Recall the cases of R v. McShane (1977) 66 Cr App Rep 97 and Sawyer: Guardian 1993 op. cit,
both of which concerned the conviction of defendants who killed their victims with a massive degree of
violence.
1034
Huxtable R, (2007) op. cit., at pgs. 47-48. Also see, Carter H and Khaleeli H, (2004) op. cit;
Gilderdale: http://www.guardian.co.uk/uk/2010/jan/25/kay-gilderdale-devoted-mother (accessed on
June 4th 2010 at 15.56pm).
1035
Criminal Law Revision Committee 14th Report (1980) op. cit.
1036
Oregon Death with Dignity Act (1997) s.127.800 s. 1.01(2)
265
mercy would be an impossible task. The Swiss law on homicide and AS is based on
the defendant’s good motives. Articles 114 and 115 read as follows:
‘Art 114: Killing on request (Tötung auf Verlangen) A person who,
for decent reasons, especially compassion, kills a person on the basis
of his or her serious and insistent request, will be sentenced to a term
of imprisonment (Gefängnis).’
‘Art 115: Inciting and assisting someone to commit suicide
(Verleitung und Beihilfe zum Selbstmord) A person who, for selfish
reasons, incites someone to commit suicide or who assists that
person in doing so will, if the suicide was carried out or attempted,
be sentenced to a term of imprisonment (Zuchthaus) of up to 5 years
or a term of imprisonment (Gefängnis).’
As the quotations clearly show, there is a total prohibition of AS and euthanasia in
Article 114. Article 115 however only criminalises the act of inciting and assisting
suicide if the person performing the criminal act does so for ‘selfish reasons’. As
such, if compassion could be said to have been motivating a person’s actions, and
he/she could prove that to the court, no criminal liability would accrue regardless of
that person being a layman or a medical practitioner. While the Swiss law is explicit
in its requirement for non-selfish reasons however, it is silent on precisely how such a
motive should be ascertained. The same is true of the Policy for Prosecutors in
Respect of Cases of Encouraging or Assisting Suicide (2010), though it goes further
than most in clarifying what is NOT a merciful or compassionate motive:
‘...the suspect was motivated by the prospect that he or she or a
person closely connected to him or her stood to gain in some way
from the death of the victim.’1037
In exploring, if briefly, the idea of what a non-compassionate motive entails, the
DPP’s Policy sets an instructive example of how it may be possible to implement a
defence of mercy killing. Paragraph 43(6), quoted above, is added to by paragraphs 44
through 48 of the Policy, which detail the public interest factors tending towards and
against prosecution. By making explicit reference to situations and scenarios which
add to or detract from the strength of a defendant’s case, it is possible, as section 5.5.2
of chapter 5 of this work does in relation to AS, to put together a composite of the
1037
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010) section
43(6).
266
‘perfect innocent defendant’. A set of factors akin to those in paragraphs 43 through
48, tailored to the situation and needs of the practitioner mercy killer, would make
quantifying a truly merciful act more straightforward. They would not though, on the
same token, remove the issue of relying on the physician’s word as to the
mercifulness of his motives entirely, nor should they. They would simply provide a
codified list of factors from which the courts could guide juries in weighing the need
for prosecution in individual cases.
The clarity afforded by the creation of such a list as part of a defence would likely be
welcomed by the courts, but it is questionable whether this method of reform would
properly effect the change the MSB states is necessary. While it would protect a
physician who took a patient’s life with merciful motives, it is uncertain whether it
would work to facilitate the competent patient’s autonomous choice in seeking
assisted dying appropriately. The focus of the defence would, by its nature, be on the
defendant physician, not on patients who have decided to seek assisted dying. The
MSB, in claiming that patients should be able to make such a choice,1038 looks to
defend their interests and ensure proper protection is in place before it deals with
creating mechanisms through which the morally blameless physician can be defended.
That is not to imply that the concept of a defence is altogether unworkable. Indeed, as
a representation of both the wrongfulness of murder and the blamelessness of
physicians who assist consenting patients in suicide or commit euthanasia with
merciful motives, a defence is the most appropriate course to take. It is concluded
here however that it would be advisable, if a defence specific to physicians was
considered, for it to be enacted outside of the stigma and rhetoric surrounding the
concept of mercy killing entirely. As the opening paragraph of this section pointed
out, the concept of mercy killing is almost entirely geared towards exonerating
laymen. In support of this trend, to date there have been no official recommendations
for a defence of mercy killing specific to medical practitioners. The recommendation
of the CLRC regarding mercy killing1039 was silent as to the identity of possible
defendants, but its nature as an offence precluded the exclusion of certain persons
1038
See for example section 3.5.2 of chapter 3 and sections 4.1 and 4.4 of chapter 4 regarding the
importance of respecting the competent patient’s autonomy.
1039
See the discussion in section 7.1.1; Criminal Law Revision Committee 14 th Report (1980) op. cit.
267
from its ambit. The simple fact that a person was or was not a physician should make
no difference to the fact that he or she performed a prohibited act. The case of Re
A(children)1040 appears to go against this assertion however. The court in Re A applied
the defence of necessity in a cunningly singular manner in order to achieve the result
it felt morally right in the unique circumstances of the case. Section 7.1.3 will explore
Re A and its impact on the defence of necessity with a view to evaluating whether,
like mercy killing, it would be appropriate or inappropriate for a practitionerdefendant to rely on as a defence.
7.1.3 Necessity
The defence of necessity has been a source of jurisprudential consternation for a
number of years. A Common Law defence first referenced in the case of R v. Dudley
and Stephens,1041 it applies in circumstances where the defendant was forced to make
a choice between two negative outcomes, and seeks, once the lesser of those two evils
is accomplished, to justify that outcome as the product of necessity. Necessity’s
boundaries and distinguishing features have been defined and re-defined through case
law and its application to cases concerning PAS and euthanasia has long been mooted.
Ost for example, in her paper Euthanasia and the Defence of Necessity: Advocating a
More Appropriate Legal Response1042 argues that the availability of the defence of
diminished responsibility to lay mercy killers would make denying practitioners
access to necessity unfair, as doing so ‘may place (them) at greater risk of conviction
for murder than the layperson.’1043
The Law Commission, unlike Ost’s quite clear support for necessity’s usefulness to
practitioners, has been of two minds on the issue. In its 1974 Working Paper
‘Codification of the criminal law: General principles and defences of general
application’1044 the Commission was of the opinion that the defence was a viable
1040
Re A (children) [2000] 3 FCR 577, [2001] Fam Law 18, [2001] 2 WLR 480, [2000] 3 FCR 577;
[2001] Fam 147.
1041
R v. Dudley and Stephens (1884) 14 QBD 273.
1042
Ost S, (2005) ‘Euthanasia and the Defence of Necessity: Advocating a More Appropriate Legal
Response’ Criminal Law Review 355.
1043
ibid.
1044
Law Com Working Paper No. 55 (1974) Codification of the criminal law. General principles and
defences of general application.
268
option, yet in its 1977 Report ‘Criminal law Report on defences of general
application’1045 it expressed the opposite view and called for its abolition. Neither
suggestion was implemented, and in its 1985 Report the Commission proposed the
current, compromised position found at law today. 1046 Necessity therefore remains a
Common Law defence over which the courts retain the power to develop and clarify
as needed.
In order to explore whether or not necessity would be an appropriate defence for a
physician who has assisted a patient to die, it is necessary first to look at how the
courts have dealt with its application in cases concerning the prospective charge of
murder, since this is what a physician-defendant would face if brought to trial. The
seminal case of Re A (children)1047 is both the beginning and the end of this
exposition, since no case before or since has relied so heavily on the defence. The
facts of Re A are set out in Jenny McEwen’s article ‘Murder By Design: The 'FeelGood Factor' And The Criminal Law’ as follows;
‘The twins Jodie and Mary were joined at the lower abdomen. They
had a common artery and shared a bladder… Mary had very weak
cardiac performance and no useful lung function. Jodie's heart was
pumping blood around the bodies of both babies… if the twins were
not separated, Jodie would die, although not immediately. The
proposed treatment…would inevitably lead to Mary's death,
because…her own heart could not supply her with sufficient
oxygen.’1048
With these circumstances in mind the judges found themselves in a position where
choosing the lesser of two evils, saving one twin instead of neither, would involve an
action on the part of the physicians involved in their care that would be tantamount to
murder.1049 Conviction would be certain unless a mechanism was found to relieve
1045
Law Com No. 83 (1977) Criminal law. Report on defences of general application.
Law Com No. 143 (1985) Codification of the criminal law. A Report to the Law Commission.
1047
Re A (children) [2000] 3 FCR 577, [2001] Fam Law 18, [2001] 2 WLR 480, [2000] 3 FCR 577;
[2001] Fam 147.
1048
McEwen J, (2001) ‘Murder By Design: The 'Feel-Good Factor' And The Criminal Law’ 9 (3)
Medical Law Review 246.
1049
The court was adamant that it was not valuing the life of either twin as more or less worthy of
protection than the other. However, the judgement seems to imply that one life is better than no life at
all, even though, in Ward J’s judgement, such an approach is expressly denied. See Re A (Conjoined
Twins: Surgical Separation) [2001] Fam. 147 (Court of Appeal, Civil Division) at 188. For a
commentary on this aspect see, Huxtable R, (2000) ‘The Court of Appeal and Conjoined Twins;
Condemning the Unworthy Life?’ 162 Bulletin of Medical Ethics 13.
1046
269
those involved of culpability, and each judge involved favoured a different approach.
Ward L.J. argued for the application of the defence of self defence, Walker L.J.
focused on the idea of bodily integrity and Brooke L.J. favoured using necessity.
Though it was concluded that necessity was the most fitting option, there were
underlying logistical problems to overcome in applying the defence to the case, not
least the fact that the ratio in the case of Dudley and Stevens precluded the offence of
murder from necessity’s ambit.1050
In answer to this quandary Brooke L.J. pointed out that important policy
considerations behind the decision in the Dudley case did not exist in Re A, and that it
was only in cases where these policy considerations did exist that the defence would
not be accessible. His Lordship outlined these considerations succinctly:
‘The first objection was evident in the court's questions: who is to be
the judge of this sort of necessity? By what measure is the
comparative value of lives to be measured? The second objection
was that to permit such a defence would mark an absolute divorce of
law from morality.’1051
Brooke L.J felt that the first consideration did not apply in the present case, because it
was the doctors and the courts that were making the decision to save the stronger
twin's life by separating the weaker twin from her, rather than a defendant making the
choice to sacrifice another's life to save her own. It was also impressed throughout the
judgement in Re A that the doctors and the courts were not valuing J’s life over M’s,
but instead giving the stronger twin the best chance of survival. On this understanding
it was concluded that it was not the court but circumstances, or nature that selected M
for death. In Brooke L.J’s words,
‘...In my judgement, neither of these objections are dispositive of the
present case. Mary is, sadly, self-designated for a very early death.
Nobody can extend her life beyond a very short span...’1052
As to the second consideration outlined above, there was simply no choice, on the
facts, but to accept that either choice the court could make – allowing the surgical
1050
R v. Dudley and Stephens (1884) 14 QBD 273.
Re A (Conjoined Twins: Surgical Separation) [2001] Fam. 147 (Court of Appeal, Civil Division) at
239.
1052
ibid., at 239.
1051
270
intervention to save J’s life at the cost of her sister’s, or debarring the physicians from
acting and allowing both twins to die – would result in the death of an innocent.
Regarding the feared divorce of law and morality Brooke L.J noted:
‘...all that a court can say is that it is not at all obvious that this is the
sort of clear-cut case, marking an absolute divorce from law and
morality, which was of such concern to Lord Coleridge CJ and his
fellow judges.’1053
Distinguishing Re A on its facts from other cases concerning the defence of necessity
allowed the CA to render justifiable a positive act, the physicians separating the twins,
which resulted in the weaker twin’s almost immediate death, an act which, without
the defence, would have been treated as murder.1054 The court was quick to defend its
judgement and vehement in its assurances that the case did not create a precedent,
though how literally that assurance can be assumed to be is unclear.1055 Evidently,
giving physicians carte blanche to cause ‘necessary’ deaths was never the CA’s
intention in affording the physicians in Re A a defence, and the MSB approves of this
caution entirely.
Clearly, based on how the court dealt with Re A, in order for necessity to be
applicable to cases concerning assisted dying it must be shown that the policy
considerations used by Brooke L.J. do not manifest in the circumstances facing a
physician who has acceded to a patient’s request for assistance. If they do, the
1053
ibid., at 239.
ibid., at 1027. The moral implications of this decision are legion, and have been discussed in
numerous articles. See for example: Appel J, (2000) ‘English High Court Orders Separation of
Conjoined Twins’ 28 Journal of Law, Medicine and Ethics 312; Burrows L, (2001) ‘A Dilemma of
Biblical Proportions’ 27 Human Life Review 31; Gillon R, (2001) ‘Imposed Separation of Conjoined
Twins – Moral Hubris by the English Courts?’ 27 Journal of Medical Ethics 3; Knowles L, (2001)
‘Hubris in the Court’ 31 Hastings Center Report 50; London A, (2001) ‘The Maltese Conjoined Twins’
31 Hastings Center Report 48; London A, (2001) ‘A Separate Peace’ 31 Hastings Center Report 49;
McCall Smith A, (2000) ‘The Separating of Conjoined Twins’ 321 The British Medical Journal 782;
Pearn J, (2001) ‘Bioethical Issues in Caring for Conjoined Twins and their Parents’ 357 The Lancet
1968; Ratiu P and Singer P, (2001) ‘The Ethics and Economics of Heroic Surgery’ 31 Hastings Center
Report 47, and, Huxtable R, (2000) ‘The Court of Appeal and Conjoined Twins; Condemning the
Unworthy Life?’ 162 Bulletin of Medical Ethics 13.
1055
Re A (Conjoined Twins: Surgical Separation) [2001] Fam. 147 (Court of Appeal, Civil Division) at
218. The case has however been applied in State of Queensland v. Alyssa Nolan and Anor ([2001] QCS
174) as it was possible for the court to find comparable provisions in the Queensland Criminal Code.
1054
271
prohibition on using necessity as a defence to murder imposed in the Dudley case1056
will still be operative, and the defence will fail.
Regarding the first of the policy considerations, performing euthanasia does not
require the physician to value his life over his patient’s. He is working to assist a
person who has valued their own life and who, on the basis of that valuation, is acting
to pursue his desired end. This supposition supports and is supported by the MSB,
which claims in chapter 4 of this work that the subjective value of a competent
patient’s life should be seen to override the objective value imposed upon all human
life by society.1057 The applicability of Brooke L.J’s first policy consideration to a
case concerning assisted dying, and therefore the availability of the defence of
necessity, is at best suspect, since the circumstances do not force a choice to be made
between one life, the physician’s, and another, the patient’s.
As to the second consideration, the feared divorce of law from morality, Ost argues
the physician in a case concerning assisted dying is faced with circumstances where,
morally, he may feel compelled to end his patient’s life in order to achieve a greater
good, i.e. the relief of pain, when all other preventative measures have failed. His
actions are therefore motivated by his appreciation of morality, much as the actions of
the physicians in Re A were, not divorced from it.1058
While this argument is a compelling one, and one which the MSB countenances as
plausible, a more appropriate one, this work contends, is based on the precepts
espoused in section 1.4.1 of this work on the equivalence between ‘passive’ acts and
active ones. The case of Re A, from its outset, was based upon the need to excuse the
physicians involved in separating the twins from culpability for an action, the
severing of the arteries keeping the weaker twin alive, that would cause a death.
While it may have occupied a moral grey area, the separation was permitted and the
court allowed the defence of necessity to be applied in the case.
1056
R v. Dudley and Stephens (1884) 14 QBD 273.
See specifically chapter 4 section 4.3.
1058
Ost S, (2005) op. cit.
1057
272
The MSB’s nod to the equivalence of passive acts and active ones allows this work to
extrapolate from Re A thus. Since ‘passive’ modes of procuring death are already
permitted and cause no divorce between law and morality, active ones, like those
performed by a physician involved in assisted dying, should be likewise permitted and
should likewise cause no divorce between law and morality.1059 Brooke L.J’s second
policy consideration, it is opined here, is also conspicuously absent under the MSB’s
reasoning. The absence of both considerations appears to make necessity as applicable
to a physician accused of ‘committing’ euthanasia as it was to the physicians involved
in the case of Re A.
The applicability of necessity however does not rid its implementation of difficulties
when it is used as a physician’s defence to a charge of euthanasia. First and foremost,
the judgement in Re A involved the intention to preserve life, not the intention to end
it based on an appreciation of the lesser of two competing evils.1060 Added to this,
while its status as a Common Law defence lends it the malleability to be applied in
difficult cases like Re A, does little to provide concrete guidelines for physicians faced
with an appeal for assistance in dying on whether or not they will face prosecution if
they accede to the request. A similar conclusion was reached by the European Court
of Human Rights (ECtHR) in the case of HL v. UK.1061 The ECtHR overturned the
House of Lords decision in R v. Bournewood Community Mental Hospital1062 which
propounded that necessity could be used to authorise the detention of a mentally
incompetent autistic man (HL) against the will of his carers. It was concluded that the
doctrine of necessity did not contain sufficient safeguards to protect HL from arbitrary
or mistaken detention, and that consequently he had been denied his liberty in breach
of Articles 5(1) and 5(4) of the European Convention on Human Rights.
In light of the uncertainty highlighted in HL’s case, legislative codification would be
required, much as it would be if mercy killing was ever brought into the open as a
defence in its own right, to make the intricacies required of a law dealing with
1059
For commentaries on the ethical dimension of Re A(children) see: Pearn J, (2001) op. cit; Ratiu P
and Singer P, (2001) op. cit, and, Huxtable R, (2000) op. cit.
1060
Dennis I H (2008) 'On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of
Justification and Excuse.' 3(1) Criminal Law and Philosophy 29.
1061
HL v. UK Applic.No. 45508/99.
1062
R v. Bournewood Community and Mental Health NHS Trust Ex p. L [1998] UKHL 24.
273
euthanasia clear to all those affected by it.1063 This approach has already been taken in
five of the six jurisdictions studied pursuant to this PhD.1064 Australia, Belgium, the
Netherlands, Oregon and England and Wales (through Lord Joffe’s proposals) have
either taken, or suggested taking, legislative steps in codifying their respective laws
on assisted dying. Section 7.2 will focus on the predominant method employed by
these jurisdictions to regulate the practice – the provision of immunity from
prosecution provided that certain specified criteria are adhered to. Although this
method may seem much akin to the provision of a defence, defences like those
discussed in sections 7.1 through 7.1.3 are retroactive, requiring the person who
wishes to use them to have performed an illegal act. The provision of immunity
however is proactive, requiring compliance with the criteria set down in the Act in
order for the protection it offers to be applicable.
7.2 Immunity from prosecution if certain criteria are met
‘...We have considered that it is desired to include a ground for
exemption from criminal liability for the physician who with due
observance of the requirements of due care...terminates a life on
request or assists in a suicide of another person...’1065
‘No person shall be subject to civil or criminal liability or
professional disciplinary action for participating in good faith
compliance with ORS 127.800 to 127.897. This includes being
present when a qualified patient takes the prescribed medication to
end his or her life in a humane and dignified manner.’1066
‘Subject to the provisions of this Act, it shall be lawful for a
physician to assist a patient who is a qualifying patient, and who has
made a declaration in accordance with this Act that is for the time
being in force, to die.’1067
As the above quotations show, the Netherlands, Oregon and Lord Joffe’s never
implemented Bill each seek to provide a conscientious medical practitioner with
immunity from prosecution if, and only if, he acts in accordance with a set of
1063
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
The jurisdictions under scrutiny are Australia, Belgium, Oregon, England and Wales the
Netherlands and Switzerland.
1065
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) abstract.
1066
The Oregon Death with Dignity Act (1997) at paragraph, 127.885 s.4.01.
1067
The Assisted Dying for the Terminally Ill Bill (2004) section 1(1).
1064
274
specified criteria. Though the exact content of these criteria vary from jurisdiction to
jurisdiction, there are themes evidenced across all six of those under consideration by
this work which appear to be almost universal. In all but the Swiss Criminal Code, for
example, it must be a physician who provides the assistance allowed under the
legislation,1068 and he must seek a second opinion from a ‘consulting’ or ‘secondary
physician’ on the patient’s case.1069 Any instance of assisted death must be reported in
a prescribed manner,1070 and all but the Swiss Code specify a person or body that
oversees the practice.1071
The patient himself must meet certain criteria also. His request must be voluntary;1072
he must be suffering to a degree judged enough to warrant assisted dying;1073 the
Australian,1074 Belgian,1075 Oregon1076 and English1077 pieces of legislation require
him to have attained the age of majority and, but for the Dutch law and the Swiss
Code, he must be terminally ill.1078 Each of these specifications requires individual
1068
The Rights of the Terminally Ill Act (1995) section 4; The Belgian Act on Euthanasia (2002) section
3(1); The Oregon Death with Dignity Act (1997) sections 1.01(2) and 3.01; The Termination of Life on
Request and Assisted Suicide (Review Procedures) Act (2002) article 2(1); The Assisted Dying for the
Terminally Ill Bill (2004) section 2(1).
1069
The Rights of the Terminally Ill Act (1995) section 7(1)(c); The Belgian Act on Euthanasia (2002)
sections 2(3) and 3(1); The Oregon Death with Dignity Act (1997) sections 1.01(4) and 3.02; The
Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) article 2(1)(e);
The Assisted Dying for the Terminally Ill Bill (2004) section 2(3).
1070
The Rights of the Terminally Ill Act (1995) sections 13 and 14; The Belgian Act on Euthanasia
(2002) sections 5 and 6 through 13; The Oregon Death with Dignity Act (1997) section 3.11; The
Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) articles 3 through
19; The Assisted Dying for the Terminally Ill Bill (2004) section 14.
1071
The Rights of the Terminally Ill Act (1995) sections 14 and 15; The Belgian Act on Euthanasia
(2002) section 6(1); The Oregon Death with Dignity Act (1997) section 3.11; The Termination of Life
on Request and Assisted Suicide (Review Procedures) Act (2002) articles 3 through 19; The Assisted
Dying for the Terminally Ill Bill (2004) section 14. Since the Swiss law on assisted dying is an
extension of its Criminal Code, the courts oversee and are responsible for determining the correct
application of sections 111 through 115 in cases concerning euthanasia and assisted suicide.
1072
The Rights of the Terminally Ill Act (1995) sections 4 and 7(1)(h); The Belgian Act on Euthanasia
(2002) section 3(1); The Oregon Death with Dignity Act (1997) sections 1.01(7) and 2.01; The
Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) article 2(1)(a);
The Assisted Dying for the Terminally Ill Bill (2004) sections 2(2)(f) and 2(3)(f); the Swiss Criminal
Code article 114 details the offence of ‘killing on request’.
1073
The Rights of the Terminally Ill Act (1995) section 4; The Belgian Act on Euthanasia (2002) section
3(1); The Oregon Death with Dignity Act (1997) section 2.01; The Termination of Life on Request and
Assisted Suicide (Review Procedures) Act (2002) article 2(1)(b); The Assisted Dying for the Terminally
Ill Bill (2004) section 2(2)(d).
1074
The Rights of the Terminally Ill Act (1995) section 7(10(a).
1075
The Belgian Act on Euthanasia (2002) section 3(1).
1076
The Oregon Death with Dignity Act (1997) section 1.01(1).
1077
The Assisted Dying for the Terminally Ill Bill (2004) section 1(2).
1078
The Rights of the Terminally Ill Act (1995) sections 3, 4 and 7(1)(b)(i); The Belgian Act on
Euthanasia (2002) section 3(1) cites ‘medical futility’; The Oregon Death with Dignity Act (1997)
sections 1.01(12) and 2.01; The Assisted Dying for the Terminally Ill Bill (2004) section 2(2)(c).
275
consideration that would be out of place in a section geared towards a more general
discussion of this mode of reform. Section 8.3.3 of chapter 8 will explore them in the
context of evaluating the draft Bill contained in appendix 1.
What then can be said of the efficacy of providing immunity from prosecution as a
method of dealing with assisted dying at law? Section 7 of this chapter has already
pointed out that it would both impose the necessary censure on an act that, barring
compassionate motives, looks suspiciously like murder, and imply that this act can be
legitimately performed in certain circumstances. This duality is arguably already
present in the law now, passive euthanasia and the defences specific to murder being
notable examples, but it is not as clearly expressed, or as well regulated, as it has been
in the Australian and Dutch Acts and in Lord Joffe’s Bill. The importance of creating
a piece of legislation to provide the presently absent regulation should not, therefore,
be underestimated.
It is also the case that, unlike the enactment of a defence such as those considered in
sections 7.1.2 and 7.1.3, the provision of immunity from prosecution would work
proactively. This seemingly innocuous point has appreciable ramifications on the
perception of the rightness of assisted dying. Using a defence implies that an illegal
act has been committed, but that the conduct is excusable because of certain
circumstances.1079 The provision of immunity from prosecution on the other hand
requires no offence to have been committed at all, and could be seen as a result to
imply that assisted dying should not be punished at law. This implication is not one
that is in any way supported by the MSB, which has at its core the recognition that
assisted dying requires regulation, not legalisation or a legal mandate. The criteria that
may allow its practice, should immunity from prosecution be the substance of this
work’s eventual reform, would not make it any less illegal than it rightly is at present.
Clearly and without question there are arguments against taking this seemingly
moderate approach to reform. Those on both the pro and anti-euthanasia fronts could
argue that it is simply a stop-gap measure before a full legalisation of active
euthanasia is effected. Members of the former group, Otlowski for example, whilst
1079
The defences of self defence, insanity and automatism for example can excuse an otherwise
inexcusable use of violence.
276
identifying problems inherent in legalising the practice, would conclude that outright
legalisation is the most appropriate method of changing the law. 1080 Anti-euthanasia
advocates on the other hand would note that the same moderation is a step too far
along the slippery slope to outright legalisation, and would oppose it with reference to
the danger they perceive legalised assisted dying poses to the vulnerable.1081 Chapters
5 and 6 have already detailed this work’s opinions regarding the efficacy of these
arguments and the necessity for law reform, so these issues need not be extensively
revisited here.
It is important to note however that there is very little difference between the pieces of
legislation that legalise some form of assisted dying and those that do not. The
safeguards present in the Oregon Death with Dignity Act and the UK’s Assisted Dying
for the Terminally Ill Bill are no less stringent than those of the now repealed
Australian Rights of the Terminally Ill Act and the Belgian Act on Euthanasia because
the former pair ‘only’ provide immunity from prosecution, where the latter openly
legalise PAS and euthanasia. Compare, for example, the requirement of a ‘waiting
period’ between the Australian and Dutch Acts:
‘A medical practitioner may assist a patient to end his or her life only
if all of the following conditions are met...the patient, or a person
acting on the patient’s behalf...has, not earlier than 7 days after the
patient has indicated to his or her medical practitioner (that he or she
wishes to be assisted to die...’1082
‘No less than fifteen (15) days shall elapse between the patient’s
initial oral request and the writing of a prescription under ORS
127.800 to 127.897...’1083
Strikingly it appears that the Act which legalises PAS requires less time to elapse than
that which provides immunity from prosecution. The notoriously difficult to define
phrase ‘terminally ill’ is another example of how an Act which provides immunity is
worded more stringently than one which seeks to legalise PAS and/or euthanasia:
Otlowski M, (1994) ‘Active Voluntary Euthanasia: Options for Reform’ 2 (2) Medical Law Review
161 at pgs. 202-203.
1081
Mclean S A M, Assisted Dying: reflections on the need for law reform (Abingdon: RoutledgeCavendish 2007).
1082
The Rights of the Terminally Ill Act (1995) section 7(1)(k).
1083
The Oregon Death with Dignity Act (1997) section 127.850 s.3.08.
1080
277
‘...the patient is in a medically futile condition or constant and
unbearable physical or mental suffering that cannot be alleviated,
resulting from a serious and incurable disorder cause by illness or
accident.’1084
‘terminal illness’ means an illness which in the opinion of the
consulting physician is inevitably progressive, the effects of which
cannot be reversed by treatment (although treatment may be
successful in relieving symptoms temporarily) and which will be
likely to result in the patient’s death within a few months at
most...’1085
The former quotation from the Belgian Act on Euthanasia identifies a ‘medically
futile condition’, characterised by constant suffering and caused by illness OR
accident; a notably wider definition than that employed by Lord Joffe’s Bill which
references ‘progressiveness’ and provides a timescale for the likely death as indicators
of a condition’s ‘terminal’ quality. The definitional problems of ‘terminal’ will, as
was noted above, be taken up thoroughly in chapter 8 section 8.3.3a. Presently it is
only necessary to again impress that the ‘moderate’ option of providing immunity
from prosecution appears to be taken no less seriously than attempts to legalise
assisted dying. Indeed, despite the rancour of the anti-euthanasia lobby, immunity
based upon set criteria may be a more appropriate and indeed safer option than
legalising assisted dying altogether.
7.3 Conclusion
During the course of this chapter numerous conclusions have been reached regarding
the most appropriate way of reforming the law. Section 7 posited legislative reform,
as opposed to the enactment of a policy or other similarly perfunctory method, as the
most prudent vehicle with which to effect reform for two reasons;
1. firstly, because not reforming the law at all has, by virtue of the
moral step back’s reasoning, been discounted as a possibility;1086
2. and secondly, because reforming an existing defence in a manner
that would allow a patient to seek assistance in dying would
1084
The Belgian Act on Euthanasia (2002) section 3(1).
The Assisted Dying for the Terminally Ill Bill (2004) section 2(2)(c).
1086
See section 1.4.1 in chapter 1 and section 2.3.2 of chapter 2 of this work for an explanation of the
MSB’s reasoning regarding the non-distinction between acts and omissions and that between intention
and foresight in the DDE respectively.
1085
278
necessitate the creation of a separate set of safeguards to ensure that
the possibility of abuse was minimised.
For these reasons the reform this work presents in appendix 1 takes the form of a draft
Bill entitled The Assistance In Dying Bill (AID). It will not aim to change any aspects
of the laws of homicide or assisted suicide, nor will it, as opponents of reform often
claim, effectively legalise either practice. Given the weight of academic commentary,
judicial disdain for and the dangers inherent in legalising assisted dying, doing so
would be jurisprudentially imprudent. Furthermore the absence of overt censure
engendered by legalisation would neither accurately reflect the opinions of the
medical community, nor cast the admittedly contentious practices in the correct light.
In view of these considerations, the Bill is written as a standalone piece of legislation
that provides physicians with immunity from prosecution on the condition that they
comply with a prescribed set of criteria. The decision to frame the proposed reform in
this manner was based heavily on the precedent set by pre-existing legislation from
Oregon,1087 the Netherlands1088 and also upon Lord Joffe’s most recent attempt at
reforming English law in 2006.1089 The fifth row of Table 3 in section 8.1.3 of chapter
8 displays how the various methods by which the legislation studied pursuant to
writing the Bill affect the legal systems they exist within, and there is a clear trend
evidenced towards what this work terms the compliance-innocence method of
regulation. As its name suggests, this method promises innocence to those people who
comply with a set of criteria that impose checks and balances on the conduct in
question. The Dutch Act for example works in this manner, stating in its preamble
that,
‘...We have considered that it is desired to include a ground for
exemption from criminal liability for the physician who with due
observance of the requirements of due care to be laid down by law
terminates a life on request or assists in a suicide...’1090
Furthermore, while this work acknowledges the danger noted in section 7 of this
chapter regarding overly wide-ranging reforms, the Bill will include both PAS and
euthanasia within its ambit. At first sight this may seem counterintuitive, especially
1087
Oregon Death with Dignity Act (2002).
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002).
1089
The Assisted Dying for the Terminally Ill Bill (2006).
1090
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002).
1088
279
since Lord Joffe’s first draft of his Bill in 2004, which encompassed both forms of
assistance, was rejected by the House of Lords for being too wide in scope. The Bill
created pursuant to this work however is not similarly bound by a need to be
thoroughly palatable to the legislature. Although the outlandishness of certain actions,
writing in a covert legalisation of any form of assisted dying for example, is
inherently acknowledged here and has informed the structure of the Bill, inclusions
that the MSB necessitates to properly reflect its premises have not been missed out.
Chapter 8 will build on the conclusions reached in this chapter, using the evidence
collected pursuant to this work with a view to discussing and evaluating the draft Bill
contained in appendix 1.
280
Chapter 8
The Assistance In Dying Bill (2011)
8. Introduction
This chapter will be split into four main sections to facilitate a proper analysis and
evaluation of the Assistance in Dying Bill (AID) in appendix 1. First, the empirical
evidence collected pursuant to this thesis will be detailed. The sections following this
will roughly correspond to those in the Bill itself – Part A which deals with the
immunity for doctors; Part B, which is concerned with outlining the roles and
characteristics of both doctor and patient, and also in setting out guidelines which, if
followed, will spare the physician culpability; and Part C, which contains, amongst
other things, the mechanisms suggested to monitor the practices under the Bill.
8.1 Tabulating concepts
The coming sections present the main themes within the pieces of legislation/Code set
out in three separate tables to ease analysis and comparison. It should be noted that it
is Lord Joffe's Bill, not the law surrounding assisted dying in England and Wales as a
whole, that used to evaluate the AID Bill.
8.1.1 Table 1: Doctor related issues
Australia
Doctor
assists?
Belgium
Netherlands
Oregon
Switzerland
personally
Yes: s.4
Yes: s.3(1)
Yes: art.2(1)
Yes: s.1.01 (2);
s.3.01.
Conscientious objection?
Yes: s.5
Yes: s.14
Yes: s.4.01(4)
Compelled to transfer
patient to another doctor
if unwilling to assist?
Second opinion?
No: s.29
Yes: s.14
No explicit
mention.
No explicit
mention.
No: but see
s.4.01(4)
N/A
Yes: art.2(1)(e)
N/A
Reporting?
Yes: s. 13; s.14
Yes: s.1.01(4);
s.3.02
Yes: s.3.11
Yes: s.7.1(c)
Yes: s.2(3);
s.3(1)
Yes: s.5; s.6s.13
Yes: art.3-art.19
No: Criminal
Code does not
specify.
N/A
England and
Wales
Yes: s.2(1)
Yes: s.7(1)
Yes: s.7(2);
s.7(3)
Yes: s.2(3)
As any criminal
case would be.
281
Yes: s.14
8.1.2 Table 2: Patient related issues
Australia
Belgium
Netherlands
Oregon
Switzerland
Terminally ill?
Yes: s.3; s.4;
s.7(1)(b)(i)
No clear indication.
Voluntary?
Yes:
s.7(1)(j)
Questionable:
s.3(1) ‘medically
futile’
Yes: s.3(1)
Yes:
s.1.01(12);
s.2.01
Yes: s.1.01(7);
s.2.01
Sufferingobjective/subjective?
Age of majority?
Subjective: s.4
Objective: s.3(1)
Yes: s.7(1)(a)
Yes: s.3(1)
Objective:
art.2(1)(b)
No: art. 2(2); 2(3);
2(4)
Nothing in the
Criminal
Code.
Art. 114
details the
offence of
‘killing on
request’.
N/A
s.4;
Yes: art.2(1)(a)
Objective:
s.2.01
Yes: s.1.01(1)
N/A
England and
Wales
Yes:
s.2(2)(c)
Yes:
s.2(2)(f);
s.2(3)(f)
Subjective:
s.2(2)(d)
Yes: s.1(2)
8.1.3 Table 3: Miscellaneous sections
Australia
PAS
Euthanasia?
or
Belgium
Netherlands
(P)AS: s.7(1)(p)
Euthanasia: s.2
Waiting period?
Yes: s.7(1)(i) 7
days minimum
One month:
s.3(3)(2)
Psychological
assessment?
Yes: 7(1)(c)
Yes: s.3(3)(1)
No explicit
mention
Certificate
of
request?
How
the
Act/section
changes the law.
Yes:
s.7(1)(i),(j),(k),(l)
Legalises PAS in
accordance with
the Act.
The request must be
in writing: s.3(4)
Legalises
euthanasia in
accordance with the
Act.
No explicit
mention
Provides
immunity from
prosecution so
long as the due
care criteria are
followed
Governing body?
The coroner: s.14;
s.15
Regional review
Committees:
art.3-art.19
The Department
of Human
Services: s.3.11
Effect
insurance?
Remains
unaffected s.18;
s.19
s.6(1) creates the
Federal Control and
Evaluation
Commission.
Remains
unaffected: s.15
No explicit
mention
Remains
unaffected:
s.3.13
on
Both PAS and
euthanasia:
art.2(1)(f)
No explicit
mention
Oregon
PAS: s.2.01
Yes: s.3.08 15
days minimum
in repeating oral
request
Noncompulsory:
s.3.03
Yes: s.2.02
Immunity from
prosecution if
Act is followed
in good faith
Switzerland
Art.114 and
115 concern
(P)AS
N/A
England and
Wales
PAS: s. 1(2)
Yes: s.1(2)
N/A
Non-compulsory:
s.8
N/A
Yes: s.4; s.6
Compassionat
e
motives
render
unlawful
assistance in
suicide
permissible
N/A
N/A
Assisted suicide
still illegalimmunity granted
if Act followed
Monitoring
commission: s.14
Remains
unaffected s.12
282
8.2 Evidence from interviews
The table in this section displays the thoughts of the interviewees regarding the key
elements of this thesis’ arguments on acts and omissions; intention and foresight in
respect of double effect; the participants’ views on euthanasia and assisted suicide as
a whole; the reasons behind those views; their feelings on the possibility of reforming
the law and, lastly, their reasons for feeling as they do about reform.
8.2.1 Table 4: Participant opinions
D1
D2
D3
D4
D5
D6
Acts/Omissions?
Recognises
the
distinction.
Recognises
the
distinction.
Was
a
little
confused by the
distinction
and
cited
Dignitas,
Daniel James and
Dianne Pretty.
Recognises
the
distinction.
Concedes the MSB
has a point, but it is
not D4’s point of
view.
Recognises
the
distinction. D5 is
not
against
withdrawing
treatment but will
not
administer
treatments to end
life.
Passive euthanasia
does happen in
D6’s opinion and
active euthanasia
has a place in the
future.
Intention/Foresight?
N/A
Pro/Anti reform?
Pro
As to column 3, why?
The law is years out of
date. Each individual has
the right to decide about
AS/EU.
It would be impossible to
regulate the practice.
Experience
in
the
Netherlands shows that a
workable
system
is
possible.
Is reform an option?
The law needs ‘turning upside
down’.1091
N/A1094
Recognises the
distinction.
Recognises the
distinction.
Anti
Recognises the
distinction.
Anti
The danger posed by a
slide into eugenics is too
great to risk.
Recognises the
distinction.
Anti
Religious
objections
given to reform.
No
chance
Diametrically
it.1095
Recognises the
distinction.
Pro
AS/EU ‘...has a place in
the future’.
Change is necessary, but the
participant felt unqualified to
postulate on possible types.1096
Pro
Reform would not make the
law clearer.1092
We should follow the example
of the Netherlands.1093
An interview with ‘Doctor 1’ by Edwards. J conducted on October 23 rd 2008.
An interview with ‘Doctor 2’ by Edwards. J conducted on 15 th April 2009.
1093
An interview with ‘Doctor 3’ by Edwards. J conducted on 27 th June 2009.
1094
An interview with ‘Doctor 4’ by Edwards. J conducted on 3rd September 2009.
1095
An interview with ‘Doctor 5’ by Edwards. J conducted on June 17 th 2009.
1096
An interview with ‘Doctor 6’ by Edwards J conducted on 14 th September 2009.
1091
1092
283
of reform.
opposed to
D7
D8
D9
D10
D11
Didn’t see much of
a
distinction
between acts and
omissions.
Recognises
the
distinction.
Recognises the
distinction.
Pro
The distinction is
tantamount to ‘dancing
on the end of a pin.’1098
Anti
Recognises
the
distinction though
spoke in terms of
intention,
not
actions
and
omissions,
in
making
the
distinction.
Recognises
the
distinction but is
more comfortable
with
omitting
treatment.
Recognises
the
distinction.
Recognises the
distinction.
Anti
Recognises the
distinction.
Pro with qualifications:
uncomfortable with the
effect on the doctor’s
role.
Pro with qualifications:
uncomfortable with the
effect on the doctor’s
role.
It would be impossible to
regulate. It is the
doctor’s role to promote
health.
Felt that a separate branch of
medicine should deal with
AS/EU.1097
Pro
It is the doctor’s job to
promote health and treat
illness, not prolong life.
N/A1101
Recognises the
distinction.
Anti
There
is
a
clear
difference
between
AS/EU and therapeutic
treatments.
There are benefits and
burdens on both sides.
It would be incredibly
difficult to regulate the
practice were it legislated
for.1102
Perceived
an
inequality
between patient demographics
and access to AS/EU that
reform could solve.1103
N/A1104
D12 Recognises
the
Recognises the
distinction.
Agnostic
D13 Recognises
the
Recognises the
distinction.
Anti
distinction.
distinction.
It is not the ethos of the
palliative care movement
to promote AS/EU.
Greater clarity would be
welcomed – legislative or
otherwise.1099
Legislative reform is not the
only change needed if society
is to accept AS/EU.1100
8.3 Deconstructing the Bill – preliminary considerations
The AID Bill is based on the MSB’s conclusion that active assistance in dying is
already available under a cloak of sophistry surrounding the doctrine of double effect
(DDE) and so called ‘passive’ euthanasia. Because of its covert nature this assistance
is arguably regulated by little more than the practitioner’s conscience, a state of affairs
which engenders confusion, sends a severely mixed message regarding the morality of
assisted dying, and makes the possibility of abuse, if limited, far too great for comfort.
This lack of regulation is what the Bill aims to remedy. It works both as a shield for
An interview with ‘Doctor 7’ by Edwards J conducted on 21 st October 2009.
An interview with ‘Doctor 8’ by Edwards. J conducted on 10 th November 2009.
1099
An interview with ‘Doctor 8’ by Edwards. J conducted on 10 th November 2009.
1100
An interview with ‘Doctor 9’ by Edwards. J conducted on 27 th November 2009.
1101
An interview with ‘Doctor 10’ by Edwards. J conducted on 18 th March 2010.
1102
An interview with ‘Doctor 11’ by Edwards. J conducted on 19 th March 2010.
1103
An interview with ‘Doctor 12’ by Edwards. J conducted on 7 th January 2010.
1104
An interview with ‘Doctor 13’ by Edwards. J conducted on 1st February 2010.
1097
1098
284
physicians who find themselves dealing with a patient who seeks assisted dying, and
as a mechanism for the patient to seek the assistance he desires in a formal, controlled
manner. The coming sections explore the workings of the AID Bill’s reform in detail.
8.3.1 ‘Part A’ of the AID Bill (2011)
Part ‘A’ of the AID Bill (2011) contains clause three and its three sub-clauses. It
works in tandem with the authorisations in clause 1 sub-clauses 1 and 2 which detail
the Bill’s effect. Clauses 1(1), 1(2) and 1(3) contain references to numerous issues
which are repeated throughout the Bill, all of which will be explored in greater depth
in later sections of this chapter. Those pertinent to the present section are, firstly, the
Bill’s effect, secondly, its extent and thirdly, the types of assistance in dying within its
ambit. These will be discussed in turn.
The AID Bill’s effect has already been referenced on numerous occasions through the
preceding sections and in section 7.3 of the preceding chapter, and needs little in the
way of elaboration here. The Bill was written pursuant to what this work terms the
‘compliance-innocence’ model of regulation. That is it provides immunity from
prosecution for those who seek it, providing they comply with a prescribed set of
criteria set out in the Bill. This format is similar to that adopted in Oregon,1105 the
Netherlands1106 and by Lord Joffe in his revisions of his Bill,1107 and, as row 5 of
Table 3 in section 8.1.3 shows, it is the most common kind of regulation among the
jurisdictions this work has focussed on for inspiration. This model is preferable to the
approach that was adopted under the now repealed Australian Act1108 and to that
which is still enforced in Belgium,1109 as both jurisdictions legalise a form of assisted
dying. As sections 7 and 7.3 of the preceding chapter point out, legalising PAS or
euthanasia discounts both jurisprudential and professional disdain for the practices.
But for Swiss law, the legislation this chapter is exploring stipulates that only a
physician may end the life of his or her patient lawfully, and the AID Bill follows this
1105
Oregon Death with Dignity Act (1997).
Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002).
1107
Assisted Dying for the Terminally Ill Bill (2004).
1108
Rights of the Terminally Ill Act (2001).
1109
The Belgian Act on Euthanasia (2002).
1106
285
trend in defining its extent. This restrictiveness implies that, while the
decriminalisation of some form of medically assisted death is desirable, there is a need
to maintain a prohibition on suicides assisted by non-physicians. As section 7 of the
preceding chapter noted, there are numerous possible explanations for the restriction,
the most obvious of which is that a physician has the requisite training needed to
properly care for his dying patient, and to assist him with all due care, where a nonphysician does not.
The need to enforce the law’s negative view of assisted dying in general would be
another reason for the restriction, as would the fact that creating barriers to who may
legally assist a patient’s suicide reduces the risk of the provisions being abused. An
example of one such barrier is provided by the Australian Act, which sets out the need
for the assisting practitioner to remain free from outside influences in section 6(1);
‘A person must not give or promise any reward or advantage (other
than a reasonable payment for medical services), or by any means
cause or threaten to cause any disadvantage, to a medical practitioner
or other person for assisting or refusing to assist, or for the purpose
of compelling or persuading the medical practitioner or other person
to assist or refuse to assist, in the termination of a patient's life under
this Act.’
This is the only piece of legislation that states these prohibitions so early in the text
and in such clear terms. In fact, but for the provisions in the Oregon Act,1110 no other
piece of legislation prohibits external influences expressly. In recognition of both the
danger of biased judgements and of the need to maintain the impartiality of
practitioners, clause 8(10) of the AID Bill emulates the Australian Act in noting that:
‘No person may give or promise to give the primary or secondary
medical practitioner any reward or advantage for either assisting, or
refusing to assist a patient to die. Furthermore, any physician who
accepts such a reward or advantage has no legal right or capacity to
receive or retain it…’
1110
Oregon Death with Dignity Act (1997) section 127.890 §4.02 ss. 1-4
286
This provision adds to the earlier clauses of the Bill which are predicated upon
ensuring that the patient is free from coercion.1111 This freedom is especially
important because the AID Bill, as Lord Joffe’s did prior to the amendments
prompted by the House of Lords Select Committee (HLSC), applies to instances of
both euthanasia and PAS – clauses 1(1) and 1(2) respectively.
The decision to include both forms of assisted dying in the AID Bill was influenced
by numerous factors, the most prominent of which was the MSB’s conclusions
regarding the ability of a competent person to decide when and how his life should
end. These conclusions are discussed at length in section 3.5.2 of chapter 3 and
section 4.5.1 of chapter 4 of this work, and need not be extensively detailed here. It is
pertinent only to note that, while it is recognised that there is no legal right to either
end or have one’s life ended, the patient’s possession of competence and his personal
approximation of his life’s worth should be the determining factors in how his request
for assisted dying is treated. The ability to choose engendered by the possession of
competence is best respected by allowing the patient the choice between either form
of assisted dying covered by the Bill.
Further inspiration for the inclusion of both forms of assisted dying was drawn from
the Australian, Belgian and Dutch legislation, and, as noted above, from Lord Joffe’s
2004 Bill. The preamble of the Australian Rights of the Terminally Ill Act 2001 states
that:
‘(The) Act establish(es) and confirm(s) the right of a person who is
terminally ill to request assistance from a medically qualified person
to voluntarily terminate his or her life in a humane manner…’
The manner of the assistance, which is explained in the section, makes it clear that
(like the AID Bill) both active euthanasia and PAS are included in the Bill’s ambit:
‘Assist… includes the prescribing of a substance, the preparation of
a substance and the giving of a substance to the patient for selfadministration, and the administration of a substance to the patient.’
1111
See for example sections 5(4)(b) and 6(2)(b) of the Assistance In Dying Bill (2011) in appendix 1.
287
Though it can only be speculated at this point why the Australian legislature settled on
allowing both voluntary active euthanasia and PAS under the Bill, the reasons behind
the AID Bill’s emulation of the format are clear. PAS, as can be seen in the Australian
definition of ‘assist’, is indicative of the prescription of a substance which a patient
then ingests. Similarly, the Oregon legislation is couched in terms of ‘written and oral
requests for medication’ which are made by the patient ‘for the purpose of ending his
own life in a humane and dignified manner…’1112 Both definitions presuppose the
patient’s physical capacity to administer the lethal dosage without aid.
Restricting an Act in this way has its advantages. As was noted above, the provisions
regarding active euthanasia in Lord Joffe’s 2004 Bill were written out in an attempt to
mollify critics who claimed that its scope was too wide. 1113 Furthermore, including
only PAS would shift the onus from the physician’s actions in actively procuring
death, to the patient’s act of ‘self deliverance’ through ingesting the lethal medication
provided under the Act.
This shift however, while arguably providing physicians with a measure of
psychological distance1114 from being the cause of a patient’s death, puts pressure on
patients to ‘self deliver’, a task many would find too daunting to face. Lord Joffe
pointed out on this issue that many attempts at suicide fail, leaving the patient in a
worse state than that he wished to escape in the first place.1115 With that fear in mind,
patients who may otherwise wish for assistance in dying could be deterred from
requesting it under a ‘PAS only’ Act. This reticence raises the question whether those
who thought to apply but did not due to the nature of the aid they would receive really
wished for assistance in the first place, and whether, with this consideration in mind,
it would not be safer to predicate the AID Bill on PAS alone.
This dilemma raises two separate issues surrounding the efficacy of the AID Bill’s
ambit. The first draws directly from the MSB’s assertions regarding the availability of
active assistance in dying under the guise of purported omissions of treatment, and the
1112
Oregon Death with Dignity Act (2002) section 127.805 s. 2.01
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
1114
See section 3.5.1 of chapter 3 and section 6.6 of chapter 6 of this work for a discussion of the
psychological effects assisting death has on physicians.
1115
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
1113
288
second involves the physical condition of the patient himself. As to the first, the MSB
claims, as chapter 1 section 1.4.1 made clear, that actions and omission are, but for in
very specific circumstances, equivalent in their ends and means. This implies that it is
already possible, by framing his request as one for an omission of treatment, for a
patient to seek his own death through active means. This practice is, at present,
unregulated and for this reason alone, the AID Bill provides an equivalent regulated
option to that already available.
The second issue is raised not by the MSB or by the need for regulation, but in
recognition of the fact that not all patients, regardless of their preferences as to the
manner their death is procured, will be physically able to self-administer as PAS
demands. While a more restrictive approach may safeguard against possible abuse by
restricting the demographic of patients with access to the legislation, such a restriction
would discriminate against patients who, regardless of their physical incapacity,
desire assistance in dying. It would also force people with degenerative conditions
like that afflicting Debbie Purdy1116 to avail themselves of that assistance earlier than
they would be comfortable with.
This argument is the same as that deployed by Ms Purdy in her case before the House
of Lords, and it was compelling enough then to have the DPP ordered to promulgate a
policy detailing his strategy for convicting persons accused of assisting suicide. While
this move was criticised in section 5.4.2 of chapter 5 of this work, the weight of Ms
Purdy’s argument should not be misjudged. Her worry about being rushed into a
decision that is quite obviously pivotal in her life because she must make it while she
is physically able to travel was clearly well-founded, and is one likely shared by
others in her position. Limiting the AID Bill’s ambit is therefore out of the question
because doing so would have the same effect as the lack of concrete guidance on
assisted suicide did in Ms Purdy’s case – it would force those who wish to be assisted
to die and who have diminishing physical capacity to seek that assistance much
sooner than they wish to.
1116
R (on the application of Purdy) v. DPP [2009] UKHL 45.
289
For these reasons the Bill offers immunity from prosecution for physicians, but not
laymen, who assist a qualifying patient to die in the manner prescribed in the
provisions contained in ‘Part B’ of the Bill. Precisely what makes a qualifying patient
a qualifying patient and what his doctor must do to comply with the provisions of the
Bill will be discussed next.
8.3.2 ‘Part B’ – Defining the ‘qualifying patient’
Before any assistance is given under any of the pieces of legislation detailed in Tables
1, 2 and 3 in sections 8.1.1 through 8.1.3, the patient must ‘qualify’ under the Act in
question. This section is devoted to discussing the inclusion criteria set out under the
AID Bill, and will begin by quoting them clearly to aid evaluation. Clause 4 defines
the qualifying patient in the following manner:
‘(1) Before the primary physician can assist the qualifying patient’s
suicide the conditions set out in the following clause must be met;
(a) The patient must be suffering from untreatable pain as a result of
an intractable illness;
(b) The patient may, by virtue of his/her intractable illness or other
physical incapacity, be unable to take his/her own life;
(c) The patient must have reached the age of 18 years;
(d) Subject to the provisions in clauses 5(1), 5(2), 6(2) and 6(3), the
patient must be deemed to have capacity to consent to treatment.’
Each of these requirements will be discussed in turn.
8.3.2(a) An ‘Intractable’ illness
‘...“intractable illness” means a physical illness which, in the
reasonable medical judgement of the primary and secondary
physicians, is inevitably progressive, the effects of which cannot be
reversed by any treatment acceptable to the patient, although
temporary relief may be possible.’1117
Clause 2(1) of the AID Bill, quoted above, requires that the patient who has been
assisted under its provisions was suffering from an ‘intractable’ physical illness at the
The phrase ‘reasonable medical judgement’ is to be interpreted as requiring the same standard of
reasonableness expected under the Bolam and Bolitho tests.
1117
290
time of the assistance. The requirement that the illness be ‘physical’ is better suited to
exploration in section 8.3.2(b), as its inclusion is tied directly in to the subject of that
section. This section will focus on ‘intractability’.
The phrase ‘intractable’ and not ‘terminal’ was inspired by the definitional
uncertainty rife amid both legal and professional writing concerning the latter. To
better explicate the differences of jurisprudential opinion regarding the definition of
‘terminal’ and the nature of the illness required that the patient may ‘qualify’, those
employed by the legislation of Australia, Belgium, the Netherlands, and Oregon will
be detailed and discussed below, grouped depending on the breadth their respective
definitions employ.
The Australian and Oregon legislation are the only pieces under scrutiny which refer
directly to the illness as ‘terminal’:
‘…terminal illness, in relation to a patient, means an illness which in
reasonable medical judgment will, in the normal course, without the
application of extraordinary measures or of treatment unacceptable
to the patient, result in the death of the patient.’1118
‘...‘terminal disease’ means an incurable and irreversible disease that
has been medically confirmed and will, within reasonable medical
judgment, produce death within six months.’1119
These definitions have common components; the need for the disease to result in
death and for reasonable medical judgement to determine the course of the illness.
The legislatures of Australia and Oregon have taken slightly different approaches to
their definitions.
The Australian legislation predicates its determination of what constitutes a ‘terminal
illness’ on the illness’s ‘normal course’, if ‘no extraordinary measures’ are provided.
Conversely the Oregon legislation emphasises the ‘incurable, irreversible’ quality of
the disease and denotes the life expectancy of the patient as the chief determinant of
what constitutes a terminal illness, 6 months being the allotted time limit. The
1118
1119
Rights of the Terminally Ill Act (2002) s.3.
Oregon Death with Dignity Act (1997) s.127.800 s. 1.01(2)
291
inclusion of this criterion is troubling, as determining a person’s life expectancy is an
inexact science at best. A person may be terminally ill, with Parkinson’s disease for
example, but have a life expectancy of a number of years. This group of patients
would therefore be excluded from the legislation’s ambit, a decision made to
safeguard their interests perhaps since a limited scope allows fewer opportunities for
abuse.
Under the Belgian Act the patient must be in a ‘medically futile condition of constant
and unbearable physical or mental suffering that cannot be alleviated, resulting from a
serious and incurable disorder caused by illness or accident.’1120 This definition takes
a different approach than those discussed above, no mention being made of the
condition needing to be terminal. Instead, the phrases ‘medically futile’ and ‘serious
and incurable’ are used. Whilst some may suggest that these criteria allude to the
terminal character of the condition, the devil’s advocate would suggest that, strictly
speaking, both fall far short of that mark. The same is true in the Dutch legislation. As
Dr Legemaate of the KNMG (the Royal Dutch Medical Association) put it ‘the main
basis is hopeless and unbearable suffering; it has nothing to do with your life
expectancy…’1121 That being said however Dr Legemaate noted later that ‘…in actual
practice I think that our law is very close to the Assisted Dying for the Terminally Ill
Bill, in the sense that 95% or 98% of the cases…are patients within the last days or
weeks of their life…’1122
A condition which is ‘medically futile’ need not be terminal, simply chronic, long
term and whilst treatable, incurable. Arthritis in its worst cases could be seen as
medically futile, the pain unrelenting regardless of the various treatments available for
it. The same could be said about conditions such as severe asthma, certain types of
heart disease and severe clinical depression; none are terminal in the direct sense of
the definition, yet all are long term regardless of their treatability. Furthermore
1120
The Belgian Act on Euthanasia (2002) section. 1
HLSC (2005) Report on the Assisted Dying for the Terminally Ill Bill 2004, HL Paper 86-I, at para
170.
1122
ibid., at para. 170.
1121
292
‘they can become fatal: over the next 10 years almost five million people in the UK
will die from a chronic condition.’1123
As noted above, the Dutch legislation and the Swiss Penal Code make even less
reference to the terminal character of the illness required before their provisions may
be relied upon.1124 The former in article 2(1)(b) states, much like the Belgian Act, that
‘…the patient’s suffering was lasting and unbearable’ and in article 2(1)(d) that ‘(the
physician) and the patient hold the conviction that there was no other reasonable
solution to the situation he was in’ but is otherwise lacking in definitional clarity. The
Swiss law is even more vague, sections 111-115 of the Penal Code making no
mention at all of the need for the ‘victim’ to be ill at all; only that the accused acted
with an unselfish motive.
A further disparity noted when the definitions are compared is the need, or the lack of
need for the disease to cause the patient to suffer to a degree he or she finds
unbearable. As was shown above, the Australian and Oregonian definitions make no
mention of suffering at all and the Swiss code is similarly silent. The Belgian
legislation on the other hand closely links the patient’s suffering to the definition of
‘terminal illness’: ‘…constant and unbearable physical or mental suffering…resulting
from a serious and incurable disorder …’1125 The same is true of the Dutch legislation
which states: ‘…the patient’s suffering is lasting and unbearable…’,1126 though the
former refers to both physical and mental suffering and the latter does not specify the
type of suffering required.1127 The AID Bill is somewhat conservative on this issue,
the need for the pain and suffering being corporeal is impressed to reduce the risk of
the system covering too wide a patient group i.e. those who are clinically depressed
and seeking assistance in dying.
1123
http://www.fih.org.uk/healthy_living/chronic_illness/index.html (accessed on September 10 th 2008
at 14.21pm).
1124
However, the EXIT criteria provided by the pressure group speak of the need for ‘intolerable health
problems’
to
be
present
prior
to
any
assistance
being
rendered.
See
http://www.finalexit.org/dr_schaer_switzerland_1996-97_report.html (accessed on May 9th 2011 at
11.47am).
1125
The Belgian Act on Euthanasia (2002) s.1.
1126
Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) article 2(b).
1127
The issue of ‘suffering’ will be discussed in a section 8.3.3(b).
293
On this matter the scope of the Belgian legislation is further broadened by the
provision in section 3, which deals with the situation where ‘…the physician believes
that the patient is clearly not expected to die in the near future…’ The character of this
provision, like those above which loosely define the form of illnesses covered, would
meet considerable problems if introduced into the traditionally conservative English
courts1128 and is therefore notably absent in the AID Bill.
Both the Australian and Belgian legislation mention the need for ‘reasonable medical
judgement’ to be exercised when diagnosing the patient’s condition as terminal. This
parallels the need within English and Welsh law for medical decisions to be made in a
manner concordant with those of a reasonable body of medical expertise; the
Bolam1129 and Bolitho1130 principles.
To summarise, the AID Bill, while retaining a requirement of reasonableness in
defining the character of the patient’s illness, steers away from the concept of
‘terminal’ entirely, replacing it with the term ‘intractable’. The main reason behind
this decision rests on the possibility of problems caused by semantic inaccuracy and
interpretation i.e. precisely how terminal must an illness be to qualify under the Bill?
Timescales are often relied upon in determining a disease’s terminal quality and these
are, as all estimations based on evidence are, prone to inaccuracy and subjective
interpretation. Removing the concept of ‘terminal’ altogether makes reliance on such
assessments unnecessary. Intractability is used as a measure of both the nature of the
patient’s illness, and of the suffering he claims to be caused by it. Section 8.3.3(b)
will explore this concept.
8.3.2(b) Suffering
In each of the jurisdictions where legislation has been adopted to regulate assisted
dying, suffering, in some form, is mentioned within the text. Its presence is even more
pervasive than the need for its cause to be a terminal illness, and it is used as a kind of
yardstick regarding the applicability of assisted dying to a patient’s case. The
See for example the critique by Keown J, (2007) ‘PAS: Lord Joffe's Slippery Bill’ 15(1) Medical
Law Review 126-135
1129
Bolam v. Friern HMC [1957] 2 All ER 118.
1130
Bolitho v. Hackney HA [1997] 4 All ER 771.
1128
294
appropriate way to gauge this important facet of the ‘qualification’ criteria is a matter
of considerable confusion. When debating Lord Joffe’s Bill, the HLSC noted that
suffering – ‘unbearable suffering’ as the Bill stipulated in clause 2(2)(d) – was
measured in two ways; from the patient’s subjective assessment of his or her
suffering, backed up with the primary and secondary physicians’ objective
conclusions.
When presenting evidence to the HLSC regarding this method, Dr Tate of the
National Council for Hospices and Specialist Palliative Care Services (NCHSPCS)
noted:
‘…whilst it may be possible for the attending physician, based on a
longer relationship with the patient, to assess changes in his level of
suffering, such an assessment cannot be made during the course of a
single visit to a consulting physician that the Bill envisages…’1131
A proper assessment, according to Dr Tate ‘may take a week or more of knowing the
patient and the situation.’1132 While this conclusion is not disputed by the MSB, the
AID Bill has sought to address it through including in clauses 5, 6 and most
prominently in clause 7, a requirement that both physicians conduct a minimum of
four sessions1133 with the patient. While this requirement could be critiqued as
unwieldy, especially given the likelihood that a patient using the Bill would be very
ill, it is recognised, on balance between paternalistic caution and respect for the
patient’s autonomous choice to seek assisted dying, as necessary. As a result of this
repeated contact with the patient, spread over a time period tailored to his specific
needs, there are a minimum of eight chances for the physicians, working together as
they are required to under the Bill, to assess the patient’s condition and make a
judgement on whether he or she is or is not suffering to a degree ‘which cannot be
adequately alleviated to the patient’s satisfaction by palliative care.’1134
The AID Bill’s stance on the need for ‘untreatable pain’ was based on the idea that
‘unbearable suffering’ was too subjective a criterion to be reliably assessed by the
1131
HLSC (2005) op. cit., at para 128.
ibid.
1133
As defined by clause 7 of the Assistance In Dying Bill (2011).
1134
Clause 2(1) of the Assistance In Dying Bill (2011).
1132
295
primary and secondary physicians. This formulation could, depending on how it is
read, be seen as either objective or subjective. Objectively, the physician is aware of
whether any of the treatments he proscribes reduce the patient’s pain by examining
him. Subjectively, individual patients may react differently to the same medication,
one finding relief, another finding none through the same dosages. One man’s
untreatable pain may not be another’s.
Semantically however an intractable pain is more objective than an unbearable one.
Something which is intractable cannot be cured by an outside agent, in this case the
doctor and his treatments. Something which is unbearable on the other hand cannot be
borne by the person who is afflicted by it, in spite of the continued hope of remission
or cure. On this level one can understand the recommendation of the HLSC1135 to
replace the latter with the former; the vagueness being replaced by some modicum of
measureable effect, or in this case the lack of measureable effect on the patient’s
suffering.
The use of ‘unbearableness’ has its supporters however. Dr Wilks of the NCHSPCS
states that ‘it is necessarily vague…the important point is that it is what the patient
feels is unbearable…’1136 Further support for the patient having the final say on what
he or she considers ‘unbearable’ was given by Baroness Greengross. She felt that:
‘...with all the safeguards and all the expertise being available…it is
that person in the end whose view should prevail, because it is about
the quality of that person’s life.’1137
The difficulty in adopting this phraseology is that not all conditions that are
unbearable, are terminal. Dr Gilbert, also of the NCHSPCS points out that ‘...there are
people with arthritis who find it unbearable that their lives are restricted by the pain
that they have to endure chronically, perhaps for many years.’1138
On the strength of the HLSC’s recommendations regarding Lord Joffe’s Bill, and the
earlier discussion regarding untreatable pain as both objectively and subjectively
1135
HLSC (2005) op. cit., at para 269(c)(v)
ibid at para 129.
1137
ibid at para 129.
1138
ibid at para 130.
1136
296
comprehensible, the AID Bill states in clause 2(1) that ‘...“untreatable pain” means
corporeal, bodily pain and/or mental anguish, which cannot be adequately alleviated
to the patient’s satisfaction by palliative care.’ The subjectivism i.e. the patient’s
feeling that the pain is unremitting regardless of treatment, apparent in the definition,
is balanced with an objective assessment made by the primary and secondary
physicians (clauses 5(4)(c) and 6(5)(d) respectively) who, in their clinical judgement,
must also conclude that the patient is in ‘untreatable’ pain.
The definition seen in clause 2(1), that the pain can be corporeal ‘and/or mental’, is
mildly contentious, particularly with regard to the discussion of the Chabot1139 case in
section 5.7.1 of chapter 5 of this work. Concern was voiced in that section that the
patient in Chabot, Mrs B, was actually mentally incompetent as a result of wracking
depression at the time of her suicide. She had expressed a wish to die after years of
battling with her depression, citing untreatable mental suffering as her justification to
Chabot.1140 In light of this it would seem that making allowances for mental anguish
in the AID Bill is counterintuitive, especially if the evidence presented by Emanuel et
al1141 and Meier et al1142 on physicians’ inability to diagnose clinical depression is
accurate.1143
However, the danger of the Bill becoming a poison pill for the untreatably depressed
is diminished by a number of clauses, clause 1(1) in particular which, while outlining
the Bill’s extent, states that the untreatable pain must be caused by the patient’s
intractable physical illness. Clinical depression, though it can be progressive and in
certain cases untreatable, is without question an illness of the mind, and clause 2(1)
excludes such illnesses from the AID Bill’s purview. Clause 5(2) adds a further
safeguard against the infiltration of clinical depression into the AID Bill’s ambit by
providing that a physician who feels that a patient is suffering from some kind of
1139
Office of Public Prosecutions v. Chabot (1994) Nederlandse Jurisprudentie 656.
Although Dr Chabot was not punished for his part in assisting her suicide, he was found guilty
under Article 294 of the Dutch Penal Code.
1141
Emanuel E J et al, (1998) ‘The Practice of Euthanasia and Physician-Assisted Suicide in the
United States: Adherence to Proposed Safeguards and Effects on Physicians’ 280 Journal of the
American Medical Association 507.
1142
Meier D E, Emmons C A, Wallenstein S, Quill T E, Morrison R S, and Cassel C K, (1998) ‘A
National Survey of Physician-Assisted Suicide and Euthanasia in the United States’ 338 New England
Journal of Medicine 1193.
1143
The findings of Emanuel et al and Meier et al will be discussed in greater depth in section 8.3.2(e)
of this chapter.
1140
297
psychological or psychiatric problem must refer that patient to a qualified psychiatrist
for evaluation and treatment.1144
The MSB’s respect for patient autonomy is only fettered by its need to ensure that the
patients it affects are competent. Clause 2(1), in recognition of both this fact, and of
the difficulty inherent in distinguishing between mental suffering caused by a
depressive illness, and the depressive illness itself, seeks to exclude patients like Mrs
B from its ambit.
8.3.2(c) The patient may be unable to take his own life
Clause 4(1)(b) of the AID Bill states that, ‘The patient may, by virtue of his/her
intractable illness or other physical incapacity, be unable to take his/her own life.’
This condition puts into practice the statement in clauses 1(1) and 1(2), which extend
the Bill’s remit to include active euthanasia and PAS. The former is included in clause
1(1) and the latter in clause 1(2);
‘The provisions of this Bill provide immunity from prosecution to
doctors who perform active euthanasia as defined under clause 2(1)
of this Bill on a person who has an intractable illness which: a) is
causing him/her untreatable pain which cannot be adequately
alleviated by palliative care and b) may have caused him/her to be
physically incapable of taking his/her own life.’
‘Or, who provide a person who is suffering from untreatable pain as
a consequence of an intractable illness, which cannot be adequately
relieved by palliative care, with a means to end his/her own life with
dignity at a time of his/her choosing.’
As section 8.3.1 explained, this decision was based on the MSB’s claims regarding
the current availability of unregulated active assistance in dying, and in recognition of
the fact that not all patients who competently seek assisted dying will be able to avail
themselves of PAS because of a physical handicap such as that which faced Dianne
Pretty.
1144
Further discussion of this topic will take place in sections 8.3.2(e) and 8.3.2(e)(i) of this chapter.
298
This decision is not an uncontroversial one by any means. Mayo and Gunderson1145
point out that certain disability activist groups, ‘Not Dead Yet’ (NDY) being a notably
vocal one, maintain that it is impossible to provide adequate protection for the
disabled from abuses of any form of leniency in the prohibition on assisted dying.
They feel that the disabled are subject to negative social conditioning, both within
their demographic and outside it in the able population, to feel, and to be seen, as
more apt candidates for PAS or euthanasia.1146
The New York State Task Force on Life and the Law1147 was of a similar opinion and
proclaimed that the ‘social risks’ of legalising assisted dying were too great, and that
even those people for whom further treatment was not an option should not be
allowed access to it. Even Velleman, who acknowledges the argument in favour of
assisted dying with reference to autonomy and self determination, feels that
legalisation would be an unwise legislative move. It would expose, in his view,
vulnerable sub-groups in the population to a further source of pressure to end their
lives. His view is that ‘...this is one occasion where it is better not to have more
choice.’1148
The MSB, while acknowledging these dangers, respectfully disagrees with the
supposition upon which they appear to be based. It appears, going on the evidence
noted above, that NDY and the New York State Task Force are of the opinion that at
present assisted dying is not available. They are correct inasmuch as active euthanasia
and PAS are illegal, but both disregard the availability of ‘passive’ means of
procuring death by choice entirely. At present, the law does not discriminate between
the physically able patient and his disabled counterpart in terms of allowing one to
have his treatment withdrawn and not the other. Since withdrawal is understood to
constitute action by the MSB, both the able and the disabled can presently access
active assistance in dying, and the AID Bill mirrors this.
Mayo D J and Gunderson M, (2002) ‘Vitalism Revitalized: Vulnerable Populations, Prejudice, and
Physician Assisted Death’ 32 (4) Hastings Center Report 14.
1146
Appleyard B, Brave New Worlds: Genetics and the Human Experience (Glasgow: Harper Collins
Publishers 1999). See also section 6.7 of chapter 6 of this work which mentions the possibility that
physicians may come to see the disabled as apt candidates for assisted dying.
1147
The New York State Task Force on Life and the Law (1994) When Death is Sought: Assisted
Suicide and Euthanasia in the Medical Context (Albany, New York: The New York State Task Force
on Life and the Law).
1148
Velleman D J, (1992) ‘Against the Right to Die’, 17 The Journal of Medicine and Philosophy 664.
1145
299
8.3.2(d) The age of majority
Clause 4(1)(c) of the AID Bill, sets out the requirement that, ‘The patient must have
reached the age of 18 years.’ Explaining this stipulation Brazier points out ‘Once a
person reaches 18, the age of majority, no one else, be he next of kin or a professional
carer such as a social worker, can consent to treatment on his behalf.’1149 In legislation
concerning PAS or euthanasia the ‘majority’ requirement is used as a measure of
competence to consent to treatment. Being that treatment without consent is a
criminal act,1150 the inclusion of this tariff appears essential.
The Australian Act, for example, states in section 7(a) that ‘the patient (must have)
attained the age of 18 years’. The same is true of the Oregon Act which, in section
127.800 s.1.01(1) provides, ‘…’Adult’ means an individual who is 18 years of age or
older.’ Excluding minor-patients in this way acts as a possible fetter on how wide a
range of prospective patients can legally apply to end their lives.
The Dutch and Belgian legislation go against this trend however.1151 Both Acts, under
certain circumstances, allow minors to seek assistance and the Dutch provisions go
furthest in allowing this. Under section 2(2) of the Dutch Act:
‘If the patient aged sixteen years or older is no longer capable of
expressing his will, but prior to reaching this condition was deemed
to have a reasonable understanding of his interests and has made a
written statement containing a request for termination of life, the
physician may carry out this request…’
Note here, unlike the later sections, that the patient’s parent or guardian is not
mentioned as being involved with the decision making processes regarding the
cessation of treatment or assistance in suicide. An allusion is made in the phrase
‘…made a written statement containing a request for termination…’ to an advance
directive being sufficient for assistance to be rendered, though the phrase (advanced
directive) itself is never expressly mentioned in the text of the Act. It is also clear in
1149
Brazier M, Medicine, Patients and the Law (Harmondsworth, UK: Penguin Books 1992) at pg. 94
Recall the discussion of the need for consent to treatment for it to be lawful.
1151
Belgian Act on Euthanasia (2002) s.1: ‘…the patient has reached the age of majority or is an
emancipated minor…’ (emphasis added).
1150
300
this section that, to qualify under it, the patient must be presently unable to express his
will i.e. he is incompetent in the legal sense.
The Dutch legislation goes on to break down prospective patients into age categories;
subsection 3 applying to competent 16 to 18 year olds 1152 and subsection 4 to
competent 12 to 16 year olds,1153 In order to qualify the patient must be deemed to
have a ‘reasonable understanding of his interests…’ a similar criterion as that used in
England and Wales to establish competence in children under the Gillick1154 principle.
Despite the possibility of erecting safeguards to doubly protect minor patients from
the risks of mistaken beliefs, misinformation and even possible abuse – as imposed by
the Dutch legislation i.e. the need for parental consent for the PAS or euthanasia is
performed – the AID Bill does not include provisions allowing minors to be assisted
to die. While doing so may acknowledge their inherent right and ability to exercise
their autonomy, it would also render the demographic of patients who ‘qualify’ under
the Bill far too encompassing for comfort.
Linked to the issue of being ‘of age’ to be able to consent to treatment is the
voluntariness of the provision of that consent. Both issues are addressed by the
legislation on PAS and euthanasia and the AID Bill is no exception. Section 8.3.2(e)
discusses this requirement.
8.3.2(e) Capacity and the voluntary character of the patient’s request
From its inception the MSB has made the case that a competent patient should be able
to make a fully informed and voluntary decision to end or have his life ended in a
regulated manner. The words ‘competence’, ‘competent’ and capacity are commonly
understood to denote different concepts. ‘Competence’ and ‘competent’ describe the
state of being possessed of the ‘capacity’ to make informed choices, where ‘capacity’
‘If the minor patient has attained an age between sixteen and eighteen years and may be deemed to
have a reasonable understanding of his interests, the physician may carry out the patient's request for
termination of life or assisted suicide, after the parent or the parents exercising parental authority
and/or his guardian have been involved in the decision process.’
1153
‘If the minor patient is aged between twelve and sixteen years and may be deemed to have a
reasonable understanding of his interests, the physician may carry out the patient's request, provided
always that the parent or the parents exercising parental authority and/or his guardian agree with the
termination of life or the assisted suicide. The second paragraph applies mutatis mutandis.’
1154
Gillick v. West Norfolk & Wisbech AHA [1985] 3 All ER 402, HL.
1152
301
itself is what a person possessed of ‘competence’ has. Thus, provided that the patient
is competent when he decides to pursue assistance under the Bill, his request for it can
be granted.
The need for voluntariness is mirrored in each of the pieces of legislation utilised by
this work in constructing the AID Bill, as the following quotations show;
‘...the medical practitioner is satisfied, on reasonable grounds, that
the patient is of sound mind and that the patient’s decision to end his
or her life has been made freely, voluntarily and after due
consideration.’1155
‘…the request is voluntary, well considered and repeated and is not
the result of any external pressure…’1156
‘...the physician...holds the conviction that the request by the patient
is voluntary and well-considered...’1157
‘...if the patient persists with his request to be assisted to die, (the
physician must satisfy) himself that the request is made voluntarily
and that the patient has made an informed decision...’1158
‘...’Informed decision’ means a decision by a qualified patient, to
request and obtain a prescription to end his or her life in a humane
and dignified manner, that is based on an appreciation of the relevant
facts...’1159
In recognition both of the above-evidenced trend and of the MSB’s conclusions
regarding the competent patient’s ability to make decisions as to how his life should
end, the Bill is predicated on providing a framework in which those decisions can be
made safely. Many of its provisions are in place to ensure that the patient looking to
use the legislation is making his decisions free from coercion, and that the doctor
looking to be protected by the clause 3 immunity is equally so.
1155
Section 7(1)(j) of the Australian Rights of the Terminally Ill Act (2001).
Section 1 of the Belgian Act on Euthanasia (2002).
1157
Article 2(1)(a) of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act
(2002).
1158
Section 2(2)(f) of the Assisted Dying for the Terminally Ill Bill (2004).
1159
Section 127.699, 1.01 of the Oregon Death with Dignity Act (1997).
1156
302
Not only must the patient’s request be voluntary, it must, per the Dutch legislation, be
well considered.1160 Despite its importance however, The Termination of Life on
Request and Assisted Suicide (Review Procedures) Act goes no further in defining
what constitutes a ‘well considered’ decision, leaving it up to the discretion of the
physician attending the patient. The Oregon Act goes into greater depth and states:
‘(7) Informed decision means a decision by a qualified patient, to
request and obtain a prescription to end his or her life in a humane
and dignified manner, which is based on an appreciation of the
relevant facts and after being fully informed by the attending
physician of:
(a) His or her medical diagnosis;
(b) His or her prognosis;
(c) The potential risks associated with taking the medication to be
prescribed;
(d) The probable result of taking the medication to be prescribed;
and
(e) The feasible alternatives, including, but not limited to, comfort
care, hospice care and pain control.’
Without this informed decision the patient cannot be given the prescription promised
under the Act.1161 Similar provisions are included in the AID Bill, specifically in
clauses 5(4)(a), 6(2)(a) and 6(2)(b) which detail the primary and secondary
physician’s duties. These duties are supplemented with the requirement that, if the
patient’s capacity to consent is in doubt, he must be referred to an independent
psychiatrist for evaluation. This psychiatrist is tasked with discovering and treating
clinical depression or any other psychological condition affecting the patient’s ability
to consent.
Referral was at first going to be mandatory under the AID Bill irrespective of the
patient’s competence, an issue which could rightly incite criticism from opponents of
reform due to the impairment any form of mandatory care imposes upon the patient’s
personal autonomy. Lord Joffe, when asked about the inclusion of such a stipulation,
1160
Section 2(a) of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act
(2002) states, ‘the physician…holds the conviction that the request by the patient…was well
considered…’.
1161
Oregon Death with Dignity Act (1997) s.27.830 §3.04. ‘Informed decision. No person shall receive
a prescription for medication to end his or her life in a humane and dignified manner unless he or she
has made an informed decision as defined in ORS 127.800 (7). Immediately prior to writing a
prescription for medication under ORS 127.800 to 127.897, the attending physician shall verify that the
patient is making an informed decision. [1995 c.3 §3.04]’.
303
regarded it as, whilst wise, impractical, the availability of psychiatrists being
limited.1162 He also pointed out that the diagnosis of depression or any other
psychological condition would take more than a single consultation, by which time
the patient may either be too ill to continue with them or have passed away in the
interim. This latter issue is likely dampened by the AID Bill’s lack of the ‘terminally
ill’ criterion in Joffe’s own work, but the idea of mandatory psychiatric referral
remains thorny.
Its inclusion here was based on an appreciation of the dangers posed to vulnerable
patients by undiagnosed mental illness. This is an all too common phenomena
according to Emanuel who, in his work The Practice of Euthanasia and PhysicianAssisted Suicide in the United States, cites statistics regarding how patients are
slipping through the net when it comes to proper psychiatric observation prior to
euthanasia being performed;
‘…less than 10% (of the patients studied) received psychiatric
evaluations for depression, and at least one depressed patient who
was given euthanasia refused psychiatric care. How many depressed
patients were not diagnosed or not given proper treatment but were
given euthanasia or PAS we could not determine.’1163
Meier, Emmons, Wallenstein, Quill, Morrison, and Cassel further establish this
worrying trend by providing evidence that in 39% of cases patients who received
euthanasia were depressed. A lower, though equally worrying 19% of PAS patients
were also depressed.1164 Emanuel concludes that ‘These data suggest a lack of
adequate palliative care for psychological symptoms prior to use of euthanasia and
PAS.’1165 In light of this evidence the question of mandatory referral is clearly raised.
Is the cost to a possibly depressed patient’s autonomy low enough that he should be
mandatorily referred to a psychiatrist if his physician suspects a mental issue?
1162
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
Emanuel E J et al, (1998) op. cit., at pg. 507.
1164
Meier D E, Emmons C A, Wallenstein S, Quill T E, Morrison R S, and Cassel C K, (1998) op. cit.,
at pg. 1193.
1165
Emanuel E J, (1999) ‘What Is the Great Benefit of Legalising Euthanasia or Physician-Assisted
Suicide?’ 109 Ethics 629.
1163
304
8.3.2(e)(i) Should psychiatric referral be mandatory?
The Australian legislation makes a consultation with a ‘qualified psychiatrist’1166
mandatory in section 7(c)(ii):
‘…two other persons, neither of whom is a relative or employee of,
or a member of the same medical practice as, the first medical
practitioner or each other …the other who is a qualified psychiatrist,
have examined the patient…’
This psychiatrist confirms that the patient is not suffering from clinical depression, the
same function listed in the AID Bill.1167 The Oregon legislation is markedly different.
It, like Lord Joffe’s Bill, leaves the referral at the discretion of the attending and
consulting physicians:
‘If in the opinion of the attending physician or the consulting
physician a patient may be suffering from a psychiatric or
psychological disorder or depression causing impaired judgment,
either physician shall refer the patient for counselling. No
medication to end a patient’s life in a humane and dignified manner
shall be prescribed until the person performing the counselling
determines that the patient is not suffering from a psychiatric or
psychological disorder or depression causing impaired judgment.’1168
This issue has been mentioned in Keown’s critique of Lord Joffe’s Bill.1169 It was
pointed out that few physicians could effectively diagnose clinical depression, the
underlying reason for the mandatory referral in the AID Bill. On the other end of the
spectrum, the Dutch Act makes no mention at all of psychiatric referral and in
Belgium, one need only be consulted:
‘Qualified psychiatrist means: (a) a person entitled under a law of a State or Territory of the
Commonwealth to practise as a specialist in the medical specialty of psychiatry, (b)a specialist whose
qualifications are recognised by the Royal Australian and New Zealand College of Psychiatrists as
entitling the person to fellowship of that College, or (c) a person employed by the Commonwealth or a
State or Territory of the Commonwealth, or an agency or authority of the Commonwealth or a State or
Territory, as a specialist or in the medical specialty of psychiatry.’
1167
s.5(2) ‘Psychiatric referral is not mandatory under this Bill. However if, in his opinion, the patient
is suffering from a psychological or psychiatric problem the primary physician must refer him to a
qualified psychiatrist.’
1168
Section 127.825 §3.03 of the Oregon Death with Dignity Act (1997).
1169
Keown J, (2007) ‘Physician Assisted Suicide: Lord Joffe’s Slippery Bill’ 15(1) Medical Law
Review 126.
1166
305
‘...If the physician believes the patient is clearly not expected to die
in the near future, he/she must also: consult a second physician, who
is a psychiatrist or a specialist in the disorder in question…’1170
The balance struck between personal autonomy and paternalism is a tenuous one. On
the one hand, forcing a patient to undergo psychiatric appraisal as part of the
qualification procedure under the AID Bill seems almost immoral, considering the
state of his health and life expectancy – an unnecessary hurdle presented to further
ensure that the patient really is sure of his decision. Furthermore, it goes against the
MSB’s overriding tenet, the preservation of the patient’s autonomy. On the other,
without it, Emanuel1171and Meier et al’s1172 evidence will have gone unheeded and
may indeed be added to in terms of patients slipping through undiagnosed and
untreated.
In recognition of the above arguments the AID Bill leaves referral to the physician’s
discretion, much as the Oregon Act does. The argument that such discretion could be
misused by malefactors falls to another of Lord Joffe’s astute observations: a
physician looking to repeat the actions of Harold Shipman would not act within the
confines of a piece of legislation, desperately looking for loopholes or loosely worded
phrases so his crimes would go unpunished.1173 He would simply act without regard
for the law. Furthermore, the physician would not need to diagnose a mental problem
himself, he would only need to suspect one. This negates the effect of Emanuel and
Meier et al’s critiques regarding the inability of physicians to diagnose depression
because this task is delegated to an appropriately trained party.
A final point of note on this topic requires a brief look at the precise wording of
clause 5(2) of the AID Bill,
‘Psychiatric referral is not mandatory under this Bill. However if, in
his opinion, the patient is suffering from a psychological or
1170
Section 3(1) of the Belgian Act on Euthanasia (2002).
Emanuel E J et al, (1998) ‘The Practice of Euthanasia and Physician-Assisted Suicide in the United
States: Adherence to Proposed Safeguards and Effects on Physicians’ 280 Journal of the American
Medical Association 507.
1172
Meier D E, Emmons C A, Wallenstein S, Quill T E, Morrison R S, and Cassel C K, (1998) ‘A
National Survey of Physician-Assisted Suicide and Euthanasia in the United States’ 338 New England
Journal of Medicine 1193.
1173
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
1171
306
psychiatric problem the primary physician must refer him to a
qualified psychiatrist.’
The use of the word ‘must’ in the final line of the clause would appear, at first glance,
to undercut the above noted latitude physicians have in referring patients for
psychiatric assessment. However, it is only when the physician suspects the patient is
psychologically troubled that he must make the referral. This stipulation was included
to ensure that patients receive the care and counselling they need, and to ensure that a
physician who suspects that a patient is having problems has access to an
appropriately qualified second opinion.
8.3.2(f) The Waiting Period
Of the four legislation-bound jurisdictions explored in this chapter, three, Australia,
Belgium and Oregon, refer explicitly to a waiting period in the text;
‘...the patient, or a person acting on the patient’s behalf...has, not
earlier than 7 days after the patient has indicated to his or her
medical practitioner (that he or she wishes to end his or her
life)...’1174
‘Allow at least one month to pass between the patient’s written
request and the act of euthanasia.’1175
‘Waiting periods. No less than fifteen (15) days shall elapse between
the patient’s initial oral request and the writing of a prescription
under ORS 127.800 to 127.897. No less than 48 hours shall elapse
between the patient’s written request and the writing of a
prescription under ORS 127.800 to 127.897.’ 1176
Waiting periods serve many purposes. They allow the administrative tasks required
under the Act in question to be fulfilled, give the patient time to consider his/her
request for assistance, allow any palliative care or other treatments the patient is
undergoing time to take effect, allow the patient’s physicians to distinguish a reasoned
request from a cry for help1177 and so on. It is less the overall importance of the
Rights of the Terminally Ill Act (2002) section 7(k). Also see section 7(p) ‘…not less than 48 hours
has elapsed since the signing of the completed certificate of request…’
1175
Belgian Act on Euthanasia (2001) section s.3(2).
1176
Oregon Death with Dignity Act (1997) section 127.850 §3.08.
1177
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
1174
307
waiting period that is under scrutiny here and more the necessary length of that to be
imposed upon the patient before his/her request can be granted. If the time between
initial request and actual assistance is too long, the patient may die before it elapses.
On the other hand, if the period is too short the administrative processes may end up
being rushed through, the patient may not consider his/her request fully or make a
misinformed decision as the time runs down.
The Australian Act is at the shorter end of the time scale, leaving a minimum of 7
days between initial request and assistance being rendered. On the other end of the
scale, the Belgian Act requires a month to pass. The Oregon Act falls midway
between the two, 15 days being the minimum time elapsed between request and the
issuance of the prescription. Lord Joffe1178 recommended a period of no less than 14
days, in his Assisted Dying for the Terminally Ill Bill (2004).1179 The AID Bill was
initially vague with regards to this tenuous area. The only mention of the waiting
period being the definitional clause 2(1): ‘...’waiting period’ means the period of time
that must elapse between the patient’s initial request for assisted suicide and the
administration of drugs to cause death…’
Pinpointing the requisite period requires an appreciation of the length of time the
processes under the AID Bill will likely cover, especially with there being a required
minimum number of ‘sessions’ between the patient and his physicians stipulated in
clause 7. A minimum of 4 of these meetings are needed with both the primary and
secondary physicians before the patient qualifies under the Bill. These eight meetings
could be spread with ease over the Belgian month between request and assistance, one
with each physician being conducted in each week.
This however raises two issues with regard to the untreatably ill; the first is that of life
expectancy, and the second concerns weighing in the balance the need for protecting
the patient’s interests by giving him time to consider his decision and lengthening his
discomfort by having him wait for an extended period of time.
1178
1179
ibid.
Assisted Dying for the Terminally Ill Bill (2004) s.1(2).
308
While the AID Bill lacks both the phrase ‘terminally ill’ and omits any reference to
time periods as measures of the ‘intractable’ quality of the patient’s illness, it is still a
foreseeable possibility that, were it enacted, the Bill would be applied in cases where
a patient is terminally ill. Furthermore, while the MSB recognises and supports the
need for a person seeking assisted dying to be extensively counselled and availed of
all available palliative care, this recognition is bordered by the need to protect that
person’s autonomy. The waiting period must therefore strike an appropriate balance
between the protection of the patient’s interests in being allowed to rethink his
decision and change his mind, and protecting the choice he has made, if indeed he
does not change his mind and goes ahead with seeking assistance.
As such the Bill falls to the midway point between the two extremes presented by the
Australian and Belgian legislation and stipulates, as the Oregon Act does, a minimum
of 14 days needing to have elapsed between request and assistance. 1180 With 14 days
as the minimum requirement, each individual case can be afforded the time best suited
to the patient’s circumstances and character. This allows his interests to be protected,
while not being so restrictive on his autonomy as to stifle his ability to pursue assisted
dying altogether.
8.3.3 ‘Part B’ – the roles and characteristics of the doctor under the AID Bill (2011)
As sections 7.3 and 8.3.1 noted, the AID Bill is based upon the same complianceinnocence model of enforcement that the Oregon and Dutch legislation and Lord
Joffe’s Bill are. In order to use the mechanisms provided in the Bill, the physician(s)
in charge of caring for the patient must fulfil certain criteria in order to be availed of
the immunity detailed in clauses 1, 3 and their respective subsections.
Tables 1 and 2 in sections 8.1.1 and 8.1.2 make it clear that there are certain criteria
shared across the compliance-innocence based legislation, perhaps the most common
being the need for more than one physician to be involved in the patient’s case. Take
The Assistance In Dying Bill (2011) clause 2(1), ‘...’waiting period’ means the period of time that
must elapse between the patient’s initial request for assisted suicide and the administration of drugs to
cause death; a minimum of 14 days...’
1180
309
for example the Oregon Act, which describes the roles of each physician in its
‘definitions’ section:
‘...‘Attending physician’ means the physician who has primary
responsibility for the care of the patient and treatment of the patient’s
terminal disease.’1181
‘...‘Consulting physician’ means a physician who is qualified by
specialty or experience to make a professional diagnosis and
prognosis regarding the patient’s disease.’1182
The reason for the requirement that two physicians work in tandem on a patient’s case
is best exposed by considering the effect that having one work alone would have.
Without a mandatory referral to a ‘consulting’ or ‘secondary’ physician, the opinions
of the ‘attending’ or ‘primary’ one would be the sole medical basis required by the
Act before the patient could receive the assistance he has sought in ending his life.
While it would not be the case that the ‘primary’ physician would be without recourse
to his colleagues for a second opinion should he need one, the lack of a legislative
mandate requiring one before a patient could be assisted under the Act leaves the
dangers of misdiagnosis and malfeasance unanswered.
Two physicians working together allows a second opinion to be sought by the primary
physician from a colleague who is as involved with the patient’s case as he is,
reducing the risk of misdiagnosis. It also allows a kind of internal regulation to take
place, each physician being the most prudently placed individual to notice
irregularities in his counterpart’s handling of a given case. For these reasons the AID
Bill contains provisions requiring two physicians to work closely on the patient’s
case.
Much as it has in stipulating the necessity for at least two physicians, the AID Bill has
been influenced by the legislation of other jurisdictions in defining the physicians’
functions. Clauses 5(4)(a) through 5(4)(e) detail the primary physician’s duties once
he has determined his patient is competent:
1181
1182
Oregon Death with Dignity Act (1997) section 127.800 ss1.01(2)
Oregon Death with Dignity Act (1997) section 127.800 ss1.01(4)
310
‘(a) He must thoroughly examine the patient and conclude to the best
of his ability that his/her prognosis and diagnosis are accurate.
(b) He must conclude on the basis of the psychiatrist’s
evaluation...and his own examination of the patient that he/she is
competent to consent to treatment and that he/she is free of coercion.
(c) He must conclude on the basis of his diagnosis/prognosis that the
patient is in untreatable corporeal pain.
(d) He must, (in collusion with the psychiatrist if one was consulted
in pursuance of clause 5(2)) counsel the patient repeatedly about
his/her options regarding further treatment, further palliative care and
pain control. The minimum number of these sessions is four.
(e) If, after the minimum number of the sessions referred to in clause
5(4)(d)
has passed, the patient repeats his/her request for
euthanasia/PAS the primary physician and the psychiatrist...must talk
him/her through the process of euthanasia/PAS to ensure full
comprehension before making the referral to the secondary
physician.’
Many of these provisions are straightforward and require little in the way of
clarification. One which stands out however is that within clause 5(4)(d) which
specifies, ‘The minimum number of...sessions is four.’ The same number is required
of the secondary physician in clauses 6(5)(a) through 6(5)(f), which detail the content
of the sessions he has with the patient. Specifics are included here to both ensure that
the patient has (at least) semi-constant access to a knowledgeable point of contact
who knows his case well, and to facilitate the best possible monitoring of the patient’s
case. The repeated contact will also allow the physicians involved to garner a fuller
appreciation of the patient’s home circumstances than fewer meetings would allow,
and will make spotting coercion and undue influence exerted upon the patient by his
or her family or associates easier.
The primary physician’s role is very similar to that of the secondary physician, the
latter of which is detailed in clause 6(1) through 6(5) of the AID Bill. It is the primary
physician, not the secondary, who seeks the protection offered under the Bill, as it is
he who provides the assistance the patient requests. Despite the difference however,
neither can be rightly compelled to assist any given patient. The right to conscientious
objection is as pervasive in legislation concerning assisted dying as the role of the
secondary physician is, and is the subject of section 8.3.3(a).
311
8.3.3(a) The Quandary of Conscientious Objection
The AID Bill, like Lord Joffe’s Bill and the legislation in Australia,1183 Belgium1184
and Oregon1185 provides an ‘exemption for persons with conscientious objections to
taking any of the actions which (they) authorise’1186 in sections 10(1)-10(3). The right
of the physician to refuse to assist a patient in his/her suicide is as vital a component
in legislation regarding PAS and euthanasia as the right of the patient to rescind
his/her request for assistance. It recognises that autonomy is not only the right of the
competent patient, but of his/her physician as well.
There is a quandary presented by providing this exemption however. If it was not
provided, physicians who wanted no part in overseeing PAS or performing active
euthanasia would be forced into acting against their will. Providing the discretion
allows those who are unwilling to opt out, but there is an accompanying danger in
providing it that the HLSC identified, ‘...if it (Joffe’s Bill) were to become law, (it)
might well be unworkable because of the conscientious objections of many of those
who would be called upon to put it into practice.’1187
How then could the practical necessity of providing a conscientious objection clause
be met while at the same time avoiding the problems warned of by the Select
Committee, above? In an interview in 2007 Lord Joffe insisted that a Bill ‘cannot
Section 5 of the Rights of the Terminally Ill Act (2001) states ‘A medical practitioner who receives
a request referred to in section 4, if satisfied that the conditions of section 7 have been met, but subject
to section 8, may assist the patient to terminate the patient's life in accordance with this Act or, for any
reason and at any time, refuse to give that assistance.’ Section 6 goes on to add ‘A person must not give
or promise any reward or advantage (other a reasonable payment for medical services), or by any
means cause or threaten to cause any disadvantage, to a medical practitioner or other person for
assisting or refusing to assist, or for the purpose of compelling or persuading the medical practitioner or
other person to assist or refuse to assist, in the termination of a patient's life under this Act. Maximum
penalty: 100 penalty units’
1184
Section 14 of the Belgian Act on Euthanasia (2002) states ‘…no physician may be compelled to
perform euthanasia…no other person may be compelled to perform euthanasia. Should the physician
consulted refuse to perform euthanasia, then he/she must inform the patient and the persons taken in
confidence, if and, in a timely manner, and explain his/her reasons for such refusal. If the refusal is
based on medical reasons, then these reasons are noted in the patient’s medical record.’
1185
127.885 §4.01. (4) Oregon Death with Dignity Act (1997) states that ‘‘No health care provider shall
be under any duty, whether by contract, by statute or by any other legal requirement to participate in
the provision to a qualified patient of medication to end his or her life in a humane and dignified
manner.’
1186
HLSC (2005) op. cit., at para. 113
1187
HLSC (2005) op. cit., at para. 113
1183
312
impose a duty on the doctor; it must be entirely up to him’1188 whether he gets
involved or not. He suggested phraseology such as ‘the doctor may help…’ instead of
‘the doctor must, or shall help…’ as one method of ensuring the choice remained with
the physician.
Clauses 5 and 6 of the AID Bill, which detail the extent of the primary and secondary
physician’s duties, follow the latter of the above examples. For example clause 5(1)
states: ‘Once the patient has requested assisted suicide the primary physician must
make a preliminary diagnosis and prognosis…’ This clause was drafted on the
assumption that a practitioner who was approached by a patient for assistance would
have assented to giving that assistance prior to following the procedure provided in
the Bill. As such it makes no express mention of the practitioner’s right to refuse that
assistance – rather relying on the conscientious objection paragraphs in clauses 10(1)10(3) to make that right clear. It is for this reason also that the provisions were drafted
so defiantly i.e. instructing the practitioner on what he or she ‘must’ do once
proceedings are getting underway instead of what he or she ‘may’ do. Furthermore,
writing in terms of what a practitioner ‘may’ do is liable to attract criticism in that the
Bill’s safeguards could be overlooked or circumvented by malefactors, or loosely
interpreted by a practitioner who wants to end a patient’s suffering quickly and misses
out a couple of steps in order to speed the process along.
In further recognition of the physician’s intrinsic right to refuse to assist a patient who
is seeking PAS or active euthanasia, clause 1(3) states ‘No physician is under any
obligation to assist a patient under this Bill.’ This outright recognition of the
abovementioned right adds credence to the conscientious objection section in clauses
10(1)-10(3) and is also an accurate statement of the Bill’s stance on the right to
autonomy; both for the patient who seeks assistance and the doctor, who is free to
give or refuse to give it as he or she sees fit. The coming section tackles the question
of whether the doctor who makes use of clause 10(1) has an obligation to pass on his
patient’s case to a physician who is willing to assist him.
1188
A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.
313
8.3.3(a)(i) Must an objecting physician refer his patient’s case to a willing colleague?
If a piece of legislation is to allow a practitioner the scope to refuse to assist a patient,
should it not also allow him discretion as to whether he wishes to pass the patient’s
case on to another physician who is willing to assist that patient’s suicide? Some
would argue that doing so, that passing on the patient’s case, is tantamount to
rendering the assistance personally.
The Australian Act supplements its conscientious objection clause in the following
manner;
‘If a health care provider is unable or unwilling to carry out a
direction of a medical practitioner for the purpose of the medical
practitioner assisting a patient under this Act and the patient transfers
his or her care to another health care provider, the former health care
provider must, on request, transfer a copy of the patient's relevant
medical records to the new health care provider…’1189
This section puts a positive obligation on the practitioner who refuses to assist a
patient, though it does not go as far as to impose upon him the duty to find a willing
alternate physician and transfer the patient to him personally. A similar, though more
encompassing, requirement was considered for inclusion during the drafting of the
AID Bill. In a previous version of the Bill, clauses 10(2) through 10(4), 14(1) and
14(5) read as follows:
‘10(2) The Commission, later detailed, will have as one of its duties
the maintenance of a non-exhaustive list of practitioners who do not
object to assisting patients in the manner outlined in this Bill.
10(3) Whilst the primary physician has no obligation to refer the
patient to a specific doctor who will assist him/her under this Bill, he
is obliged to refer the patient to the list mentioned in clause 10(2).
10(4) Whilst the secondary physician has no obligation to refer the
patient to a specific doctor who will assist him/her under this Bill, he
is obliged to refer the patient to the list mentioned in clause 10(2).
14(1) There shall be established such number of Monitoring
Commissions covering countries or regions forming part of Great
Britain as the Secretary of State may determine, to review the
1189
Rights of the Terminally Ill Act (2001) s.20(5)
314
operation of this Bill, to maintain a non-exhaustive list of
practitioners who do not object to assisting patients in the manner
outlined in this Bill, and to hold and monitor records maintained
pursuant to this Bill.
14(5) Pursuant to clause 14(1) there shall be collated and circulated
between the Monitoring Commissions a non-exhaustive list of
practitioners who do not object to assisting patients in the manner
outlined in this Bill. This list is confidential, inclusion upon it is
completely voluntary and a physician may have his or her name
removed from it at any time, for any reason.’
The ethos behind the inclusion of a list of practitioners who would register their
willingness to work under the Bill was based on the want to provide patients seeking
assistance in dying with a point of reference, should their physician be disinclined to
assist them personally. Since the physicians involved in the patient’s case would not
be granted anonymity in the reports and files sent to the Monitoring Commissions
under the procedure set out in clauses 13 and 14 of the Bill, it was concluded that
providing the list would not offend the physicians’ privacy. Inclusion on it was not
mandatory, the list was to be kept confidential and as clause 14(5) shows, it could be
absented from at any time, for any reason.
This idea however is fraught with potential problems. For a start, without any kind of
impetus to put one’s name to the list, it would almost impossible to convince a
physician of the worth of doing so. The potential harm that could come from
identifying oneself as, if not an advocate of assisted dying then at least as someone
willing to entertain the idea of it, would far outweigh the potential assistance such
identification would give to a patient in terms of clarity. Added to this, the risk of the
list somehow entering the public domain would, even with the assurances of
confidentiality written into the Bill, be too great to warrant its creation. With the
current highly polarised views the press take on euthanasia and PAS, those who
entered their names on the list would risk being demonised should it ever be made
public. The risk of irreparable damage to one’s career and practice would be much too
great for the use of the list to be workable.
Presently the AID Bill is framed in much more conservative terms. The physician’s
right to refuse to assist a patient under the Bill is recognised in clause 10(1): ‘This
315
clause recognises the right of medical practitioners to object to giving either assisted
suicide or euthanasia.’ Furthermore, nowhere in the Bill is the physician required to
personally refer a patient to a colleague he or she knows to be willing to assist him.
Clauses 10(2) and 10(3), amended following the earlier draft quoted above, recognise
this specifically,
‘(2) The primary physician has no obligation to refer the patient to a
specific doctor who will assist him/her under this Bill. (3) The
secondary physician has no obligation to refer the patient to a
specific doctor who will assist him/her under this Bill.’
8.3.3(b) The AID Bill and palliative care
As was the case with compulsory psychiatric assessment, in an earlier draft the AID
Bill required the patient to have undergone an unsuccessful course of palliative
treatment before he could be availed of the assistance therein. Emanuel states in
support of this supposition, ‘Properly utilised, euthanasia and PAS are ‘last ditch’
interventions, interventions that can be justified only after appropriate palliative
options are attempted.’1190 This stipulation was set as another safeguard for the
patient, to ensure that he had a real need for the assistance offered by the Bill before
seeking it.
In hindsight however the provision was flawed on three counts:
it caused an unacceptable impingement on the patient’s autonomy;
it did not recognise the lacking availability of palliative care
services, and;
3.
it disregarded the fact that most courses of palliative treatment
only begin to have effects when sustained for an extended period.
1.
2.
By the time the patient finds that a treatment is not sufficient to alleviate his or her
pain and suffering, his illness may be so far progressed that proceedings under the Bill
would take too long to be of use.
Emanuel E J, (1999) ‘What Is the Great Benefit of Legalising Euthanasia or Physician-Assisted
Suicide?’ 109 Ethics 629.
1190
316
The difficulty of imposing mandatory palliative care on patients is further explained
by the HLSC, which pointed out, ‘…palliative care in the United Kingdom is of a
very high quality but inadequately resourced and unevenly spread…’ 1191 Evidence
was then adduced to the effect that ‘there is…something of a postcode lottery (in
respect of the availability of palliative care)…there are…237 palliative care
consultants in England and Wales, with 100 posts unfilled; and 3195 palliative care
beds in the United Kingdom, of which 2522 are in the voluntary sector.’1192 The HL
went on to quote Professor Mike Richard, National Cancer Director at the Department
of Heath. ‘Geographical provision’ he said ‘is uneven and does not always match
need.’1193 This evidence alone is enough to discredit the idea of imposing mandatory
palliative care on patients looking to use the AID Bill. Doing so is simply impractical
in the current medical climate.
In recognition of this difficulty, the requirement that a patient must have received a
course of palliative care that did not work effectively before being considered eligible
for assistance is notably absent from clause 11 of the AID Bill – that which deals with
the provision of palliative care. That clause in full states:
‘11(1) The primary and secondary physicians must not assist a
patient under this Bill if, in his or her opinion there are palliative
care options reasonably available to the patient to alleviate the
patient’s pain and suffering to a level that is acceptable to the patient.
11(2) If a patient has been offered assistance under this Bill, and
his/her palliative care brings about the remission of his/her suffering
to a level acceptable to him, the physician must not, in pursuance of
the patient’s original request for assistance, assist him or her under
the Bill.
11(3) If the palliative care ceases to alleviate the patient’s pain and
suffering to an acceptable level, the physician may continue to assist
the patient under the Bill only if the patient indicates to him or her
that the patient’s wish is to pursue the original request.’
1191
HLSC (2005) op. cit., at para. 84
ibid., at para. 85
1193
ibid., at para. 87
1192
317
In recognition of the fact that assisted dying should be ‘last ditch’,1194 available only
once all feasible alternatives have failed, the sub-clauses are framed as restrictions on
the availability of assistance under the Bill. They fulfil the same function that the now
absent requirement of a failed course of palliative care once served, but do so in a
manner which more appropriately respects both the patient’s autonomy and the
limited availability of palliative medicine.
Sub-clause 11(1) is based heavily on section 8(1) of the now repealed Australian Act,
in that it references both the physician’s objective opinion and the patient’s subjective
appreciation of how well a given treatment works for him. 1195 It is the patient’s
opinion, not the physician’s, which carries more weight in this section, as it is he who
decides how well the treatment options presented to him are impacting or will impact
upon his condition. This emphasis leaves the choice of whether or not to pursue
assistance under the Bill in the patient’s hands, and allows him to decline further
unwanted interventions, instead of being subject to a perhaps overzealous but well
meaning physician’s wish to carry on with them in an effort to, if not prolong his life,
facilitate its continuation until his natural death.
Sub-clauses 11(2) and 11(3) apply, chronologically speaking, after sub-clause 11(1),
and deal with the possible outcomes of a course of palliative care received by the
patient after his initial request for assistance under the Bill. Like 11(1), they
implement restrictions on the ability of the physician to assist the patient, and act as
safeguards for the patient’s wellbeing as his circumstances change.
8.3.4 ‘Part C’ An introduction to monitoring practices under the AID Bill
Unlike parts A and B of the AID Bill, Part C does not facilitate the complianceinnocence mode of regulation described in sections 7.3 of chapter 7 and 8.3.1 of the
present chapter. It is instead concerned with describing the effect using the Bill has on
the patient’s insurance and on creating a mechanism for regulating the practices the
1194
Emanuel E J, (1999) op. cit., at pg. 629.
Rights of the Terminally Ill Act (2001) s.8(1) reads: ‘A medical practitioner must not assist a patient
under this Act if, in his or her opinion and after considering the advice of the medical practitioner
referred to in s.7(1) (c) (i), there are palliative care options reasonably available to the patient to
alleviate the patient's pain, suffering and distress to levels acceptable to the patient.’
1195
318
Bill makes excusable. This section will be split into two parts to facilitate a proper
discussion of Part C of the AID Bill. The first will examine clause 12, which concerns
the patient’s insurance, and the second those which regulate the practices made
excusable under the Bill.
8.3.4(a) The AID Bill’s effect on the patient’s insurance
The fact that suicide negates numerous forms of insurance is one which has an
obvious and important impact on patients seeking assistance in dying. But for the
Swiss Criminal Code,1196 this issue is recognised explicitly by all of the pieces of
legislation this work draws inspiration from, and is dealt with, broadly speaking, in
two ways. The Belgian Act takes the more radical of the approaches, and dictates that
the people who use the provisions within them are considered to have died of natural
causes;
‘Any person who dies as a result of euthanasia performed in
accordance with the conditions established by this Act is deemed to
have died of natural causes for the purposes of contracts he/she had
entered into, especially insurance contracts…’1197
This method, while workable inasmuch as it neatly sidesteps the above noted negation
of insurance by suicide, employs questionable logic in meeting its ends. The wording
itself presents the problem, since it is quite obvious that ‘...any person who dies as a
result of euthanasia...’ does not ‘...(die) of natural causes...’. While it is understood
that the section 15 statement does not literally mean that euthanasia and death by
natural causes are equivalent, and while the comparison shows euthanasia in a
positive light, to include such an inaccurate description within a Bill which is the
product of a thesis based on semantic clarity would not be prudent.
As such the second approach to dealing with insurance, that preferred by the majority
of the jurisdictions under scrutiny, is that adopted by the AID Bill. This approach sees
the focus shift from re-describing the nature of the patient’s death to the effect a
request for assistance would have on an insurance policy. The Australian Act does
this in section 19,
It is not the Criminal Code’s function to detail the effect suicide would have on a person’s
insurance.
1197
Belgian Act on Euthanasia (2002) s.15.
1196
319
‘The sale, procurement or issuing of any life, health or accident
insurance or annuity policy or the rate charged for such a policy is
not to be conditioned on or affected by the making or rescinding of,
or failure to make, a request for assistance under this Act or the
giving of that assistance.’
The above example refers to two issues within the paragraph; the effect that asking for
assistance under the legislation has on insurance, and the effect that actually receiving
that assistance will have if it is successful and the patient dies.1198 The AID Bill
addresses both issues also, but does so in two separate paragraphs for added clarity:
‘12(1) No policy of insurance which has been in force for 12 months
as at the date of the patient’s death shall be invalidated by reason of
a doctor having assisted a qualifying patient to die under the
provisions of this Bill.
12(2) The issuance of life, health or accident insurance or annuity
policy, or the rate charged for any policy, cannot be altered due to a
request for assistance in suicide or euthanasia under this Bill.’
8.3.4(b) ‘Part C’ and regulation under the AID Bill
The practice of PAS and euthanasia is regulated under statute in three ways; the
imposition of criminal liability for breaching the terms of the Acts; the creation of
review or governance committees1199 to whom the practitioner’s cases are sent for
assessment, or provision is made for an existing body i.e. the Attorney General 1200 or
a Health Commission1201 to review to cases referred to them under the Act. The depth
A similar format is displayed in the Oregon Act, specifically section 127.875 s.3.13, ‘The sale,
procurement, or issuance of any life, health, or accident insurance or annuity policy or the rate charged
for any policy shall not be conditioned upon or affected by the making or rescinding of a request, by a
person, for medication to end his or her life in a humane and dignified manner. Neither shall a qualified
patient’s act of ingesting medication to end his or her life in a humane and dignified manner have an
effect upon a life, health, or accident insurance or annuity policy.’
1199
Sections 6-13 of the Belgian Act on Euthanasia (2001) create and explain the duties of the Federal
Control and Evaluation Committee; The Regional Review Committees for Termination of Life on
Request and Assisted Suicide is dealt with in sections 3-19 of the Dutch Act.
1200
Rights of the Terminally Ill Act (2001) s.15: ‘The State Coroner may, at any time and in his or her
absolute, report to the Attorney General on the operation, or any affecting the operation, of this Act and
the Attorney General must cause a copy of the report to be tabled in each House of Parliament within 3
sitting days of each House.’
1201
Oregon Death with Dignity Act (1997) 127.865 §3.11. Reporting requirements. (1)(a) The
Department of Human Services shall annually review a sample of records maintained pursuant to ORS
127.800 to 127.897. (b) The department shall require any health care provider upon dispensing
1198
320
each piece of legislation gives the exigencies of the ‘governing bodies’ varies
depending on which form of regulation is used. The Dutch legislation for example
creates a new commission to deal specifically with claims under it and therefore sets
out this body’s functions in great depth. The Australian legislation on the other hand
and the Oregon Act give existing public officials and bodies the power to produce
reports and review the workings of the legislation; the detail is therefore
comparatively limited.
The AID Bill creates a series of region bound review commissions, much like those
under the Dutch legislation. The composition of these commissions, detailed in
clauses 14(2)(a) through 14(2)(e), was influenced by that of those in the Dutch Act
and in Lord Joffe’s 2004 Bill, the former’s being comprised of:
‘...an uneven number of members, including at any rate one legal
specialist, also chairman, one physician and one expert on ethical or
philosophical issues...’
Neither the Dutch legislation nor the AID Bill set a maximum number of members,
though going on the characteristics listed under clause 14(2) and the reference to
‘three of its members’ being required for a majority vote in clause 14(3), the
minimum number would be five.
The requirement that these members have expertise in certain areas is a characteristic
shared by both pieces of legislation; medical doctors and lawyers being two common
professions. Unlike the Dutch Act, the Belgian legislation also requires that, ‘Four
members are drawn from groups that deal with the problem of incurably ill
patients’.1202 This is a characteristic shared by the AID Bill and one that is necessary
for the proper evaluation of a patient’s case.1203
medication pursuant to ORS 127.800 to 127.897 to file a copy of the dispensing record with the
department. (2) The department shall make rules to facilitate the collection of information regarding
compliance with ORS 127.800 to 127.897. Except as otherwise required by law, the information
collected shall not be a public record and may not be made available for inspection by the public. (3)
The department shall generate and make available to the public an annual statistical report of
information collected under subsection (2) of this section. [1995 c.3 §3.11; 1999 c.423 §9; 2001 c.104
§40]
1202
The Belgian Act on Euthanasia (2002) s.6(2).
1203
Clause 14(2)(d) of the Assistance In Dying Bill (2011) notes of the members of the committees,
‘one shall be an expert in palliative care/hospices’.
321
As well as the identity of the members of the commissions, the uneven number of
members was imported from the Dutch legislation into the AID Bill, though their 6
year term of office was not. Uneven numbers allow for a majority vote to be cast
either way on a case brought before the commission, and the lack of a set term allows
existing members the chance to retire their post if their professional circumstances
change. Sub-clause 14(6) provides the Secretary of State the power to deal with such
an eventuality by granting him the ability to, ‘...dismiss any of the members of the
commissions both at their own request, and for reasons of unsuitability or
incompetence.’
The function of the commissions under the AID Bill is much the same as that of those
in the Dutch and Belgian legislation, and that detailed in Lord Joffe’s Bill. Clauses
14(3) and 14(4) apportion to them the task of discovering whether the primary
physician has complied with the terms of Part B of the Bill and can therefore be
granted the immunity from prosecution Part A describes. If he does not, clause 14(3)
specifies that the commission who received the patient’s file should refer the matter to
the Director of Public Prosecutions (DPP), and clause 14(4) obliges them to inform
the physician of this outcome. The same clause operates whether or not the
physician’s case has been referred to the DPP, and after the result of the investigation
is sent to the physician, the commission’s involvement with his case ends. This does
not however mean that there are no other kinds of regulation provided under the AID
Bill. As section 8.3.2 noted, the need for two physicians to work together on a given
case provides a kind of internal regulation for their respective conduct. The
commissions and their recourse to the DPP in tricky cases provides a second source,
and a third comes in the form of clause 15, the imposition of criminal liability upon
those who misuse the AID Bill in any one of a number of ways.
8.3.4(b)(i) Offences
As section 8.3.4(b) noted, the imposition of criminal offences is another way through
which the acts made excusable under legislation like the AID Bill can be regulated.
Clause 15 and its four sub-clauses contain the offences committable under the Bill’s
ambit;
322
‘15(1) Excluding witnesses as defined in clauses 8(3), 8(4), 8(5) and
8(6) of this Bill, a person commits an offence if he wilfully falsifies
or forges a declaration made under clause 8 of this Bill with the
intent or effect of causing the patient’s death. A person guilty of an
offence under this sub-clause shall be liable, on conviction on
indictment, to imprisonment for life.
15(2) A witness commits an offence if he wilfully puts his name to a
statement he knows to be false. A person guilty of an offence under
this sub-clause shall be liable on conviction to imprisonment for a
term not exceeding five years.
15(3) A person commits an offence if he wilfully conceals or
destroys a declaration made under clause 8. A person guilty of an
offence under this sub-clause shall be liable on conviction to
imprisonment for a term not exceeding three years.
15(4) A physician, psychiatrist, or witness commits an offence if he
puts his name to a declaration in the knowledge that he will gain
financially from the patient’s death. A person guilty of an offence
under this sub-clause shall be liable on conviction to imprisonment
for a term not exceeding five years.’
But for the Common Law offences of murder and assisted suicide, which would be
committed by a physician who did NOT comply with Parts A and B of AID Bill, the
Clause 15(1) offence is the most serious under its ambit. The penalty, which like all
those mentioned in clause 15 was influenced by those in section 11 of Lord Joffe’s
Bill, reflects this, but is discretionary, as all of those under clause 15 are. This
discretion was afforded to reflect the need for sensitivity regarding the circumstances
possible defendants have found themselves in surrounding a patient’s death.
Clause 15(3) by comparison details the least serious of the offences covered by the
Bill. Unlike those covered in clauses 15(1), 15(2) and 15(4) which, if committed,
could speed the patient’s death, the offence under clause 15(3) would have the
opposite effect. Without the declaration, the patient cannot avail himself of the
assistance permitted under the AID Bill. It is not his physical integrity that is
threatened then, but his autonomy and likely also his emotional wellbeing given how
stressful such a thing could be to both the patient and his family. It could be
questioned therefore, since no physical harm results from the concealment or
destruction of a declaration, whether there can truly be a case for penalising such
conduct section 15(3) does.
323
The decision to criminalise the concealment or destruction of a declaration was made
on the basis of the MSB's respect for autonomy and its argument that the exercise of
autonomy is a primary good - comparable to the value of life in terms of
importance.1204 By acting in the matter described in section 15(3), a person interferes
with the patient's ability to exercise his autonomy. The effect of this offence on the
patient is considered by the MSB to be less deleterious than that conferred by the
offences in sections 15(1), 15(2) and 15(4), hence the lower penalty, but still worthy
of criminal sanctions.
Clauses 15(2) and 15(4) are tailored to enforce the need for impartiality between
witnesses, physicians and other specialists when dealing with a patient’s case, and
work in tandem with clause 8 and its sub-clauses in pursuit of this aim. Although
complete impartiality is almost impossible to ensure,1205 it is important to minimise
the risk of malfeasance as far as possible and the AID Bill does this by removing, as
far as possible, the advantages one might gain from misusing it. Clause 8 goes furthest
in pursuit of this goal, stipulating who may and may not witness the declaration the
patient must sign before being assisted under the Bill;
‘The solicitor may only witness the declaration if...he has nothing to
gain from the patient’s death.’1206
‘The second witness may only witness the declaration if...he has
nothing to gain, pecuniary or otherwise, from the patient’s death.’1207
Coupled with this, there are five restrictions placed upon those who may act as the
first and second witnesses to the patient’s declaration. These categories were informed
by their subject’s relative proximity to the patient, their ability to exercise influence
over his decision to end his life and the likelihood of their gaining some kind of
advantage from his death;
1204
See chapter 4 section 4.4 of this work for a thorough exploration of the MSB's reasoning regarding
the competing values of life and autonomy.
1205
Keown J, (2007) ‘Physician Assisted Suicide: Lord Joffe’s Slippery Bill’ 15 (1) Medical Law
Review 126 at pg. 133.
1206
The Assistance In Dying Bill (2011) clause 8(4)(b).
1207
ibid., clause 8(5)(b).
324
‘Those people who cannot witness the declaration: (a) any person
with a pecuniary interest in the patient’s death. (b) the primary
physician. (c) the secondary physician, (d) the psychiatrist’.1208
And finally, to negate the chance of some kind of pecuniary benefit being the reason
why a person would put their signature to the declaration entirely;
‘Any person who signs the declaration forfeits any and all financial
and other benefits that person would otherwise, directly or indirectly,
gain as a result of the patient’s death.’1209
8.4 Conclusion
In conclusion, the AID Bill aims to promote the autonomy of patients by allowing
them the opportunity to choose to receive some form of assisted dying, and provides a
mechanism through which this assistance is available. That having been said, the Bill
does not legalise any kind of assisted dying, and while this fact may not save it, and
other statutory instruments of its ilk, from the stigma often attached to them, it is
concluded here that the Bill does not achieve any greater a step down the slippery
slope than those already taken by the DDE and the use of passive euthanasia. These
constructs, as chapters 1 and 2 showed, allow active assistance in dying to occur
without regulation. The AID Bill, by contrast, is in and of itself a form of regulation.
It does not overwrite either of the constructs questioned by the MSB, but rather
regulates the practice both allow but neither acknowledges – the procurement of death
by active means.
It is not the case however that the AID Bill follows all of the MSB's conclusions to
the letter. Because the Bill is taken to be a hypothetical submission to Parliament in an
attempt to change the law, including clauses that would clearly derail this process legalising active euthanasia for example, or including minors under the Bill's ambit would have been counterintuitive.
The AID Bill and the theory behind it is this work’s contribution to the ongoing
debate surrounding the practice of assisted dying. It is as yet unclear whether the
1208
1209
ibid., clause 8(6)(a) through 8(6)(d).
ibid., clause 8(9).
325
reform which this thesis claims is necessary will occur in the near future, or whether
Parliament will, for the time being, maintain its current opposition to reform in favour
of currently available, if arguably ill-fitting, alternatives. Logic and precedent dictate
the latter, but such things are beyond the scope of this work to predict.
Final Conclusion
This thesis has aimed to prove that the current law on assisted dying, specifically that
dealing with passive euthanasia and the doctrine of double effect (DDE), is based on
flawed logic and requires urgent reform. It has sought, in exploring why this is the
case, to answer the following question: ‘Why does the law on euthanasia need to be
reformed, and how should that reform be effected?’
Answering this question prompted the creation of a theoretical construct called the
Moral Step Back (MSB), which both names and provides an explanation for the effect
that relying on passive euthanasia and the DDE has. They allow physicians, in
circumstances where a death results from an omission of treatment or the provision of
pain relief, to take a moral step back from the results of their actions, freeing them
from both moral and legal culpability. While this freedom is recognised as a positive
thing by the MSB, it maintains that passive euthanasia and the DDE excuse an
otherwise illegal thing – procuring death by active means – without any logical basis
for granting that excuse. Because of this, active assistance in dying is currently
available, and is not regulated by anything more than the physician’s conscience.
Chapters 1 and 2 set the ground work for this contention, showing, respectively, that
the distinction between acts and omissions in the context of passive euthanasia and
that between intention and foresight in the DDE are, in certain circumstances,
questionable to the point of non-existence. This theory was put to the interviewees
who got involved in the empirical aspect of this work, and their opinions on these and
numerous other questions are referred to throughout this work, and are listed in
section 8.2.1 of chapter 8 of this work.
On the act/omission distinction 11 of the 13 interviewees concurred that the
distinction did exist, and in this sense disagreed with the MSB’s premise to the
326
contrary. This is an understandable position for them to take however, as in their
everyday practice they had all been involved in withdrawing treatment in one scenario
or other. A supposition like the MSB that labels such omissions as actions,
particularly in a scenario where a death results, is understandably unwelcome.
The interviewees had a similar reaction to the MSB’s avowed disdain for the
distinction between intention and foresight in the DDE. Of the 13 practitioners
involved, 11 felt that the distinction is a valid one and therefore disagreed with
chapter 2’s attempts to diminish it. As with the act/omission distinction, their reasons
for wishing to maintain the DDE and its central distinction were based on their
reliance or possible future reliance on them.1210 Both allow necessary and morally
correct actions to be legally taken in extremely difficult situations, and give the
physicians involved a way to justify their actions to themselves, and to the courts,
should they need to.1211
Be that as it may, 7 of the 11 interviewees who agreed that the act/omission
distinction was accurate felt that reforming the law on assisted dying would be a
positive step, as did 5 of the 11 who believed the intention/foresight distinction is
sound. They reached the same conclusion the MSB did, but through different means.
One felt that the law needs ‘turning upside down’ because at present it made no sense
to him.1212 Another, ‘Doctor 8’, felt that reform of some kind could render greater
clarity on an area of law and policy that is confusing.1213 ‘Doctor 12’ felt that it is the
disparity between patient demographics and fairness that are the main reasons the law
should be reformed.1214
These formative chapters concluded that relying on the contested distinctions
perpetuates illogical reasoning and double standards at law, and chapter 3 aimed to
prove this assertion by exposing how the principle of autonomy is routinely respected
in cases where a patient dies as a result of a requested omission of treatment but not
following an active request. It was shown that, based on nothing more than the
An interview with ‘Doctor 4’ by Edwards. J conducted on 3 rd September 2009.
An interview with ‘Doctor 3’ by Edwards. J conducted on 27 th June 2009.
1212
An interview with ‘Doctor 1’ by Edwards. J conducted on October 23 rd 2008.
1213
An interview with ‘Doctor 8’ by Edwards. J conducted on 10 th November 2009.
1214
An interview with ‘Doctor 12’ by Edwards. J conducted on 7th January 2010.
1210
1211
327
erroneous distinction between omission and action, a perfectly competent patient can,
in the former instance, precipitate a course of action that will result in his death,
where in the latter he is unable to do so. Since the MSB argues that both actions and
omissions, as discussed in section 1.4 of chapter 1 of this work, are equivalent in their
ends and means, the patient should be as able in one situation as he is in the other
because there is simply no distinction to base stopping him on.1215
These flaws are tolerated, chapter 3 claimed, because they allow physicians to do in
their practice what the drug Soma does in Huxley’s Brave New World; they allow the
unpalatable truths of one’s situation to be glossed over in favour of more socially and
personally acceptable ‘truths’ which are in actuality, while psychologically
comforting, not true at all.1216 Thus, a physician who withdraws treatment is said to
‘only’ omit it, and a physician who acts intentionally is said not to intend the death his
actions cause, when in reality the former is acting, not omitting, and the latter intends
the consequences the DDE claims he only foresees.
The Soma-like effect of passive euthanasia and the DDE could be implied from the
empirical findings of this work. The overwhelming majority of the interviewees
concurred that they supported maintaining the distinctions that the MSB disputes for
the reasons outlined in the above paragraphs. This inference is tempered however, by
the fact that only two of them, ‘Doctor 3’1217 and ‘Doctor 4’,1218 expressly mentioned
some kind of psychological assistance or distancing that comes from using either
construct. The majority in fact cited the comfort of the patient as opposed to that of
the doctor as the most pressing reason why it is appropriate to maintain the
distinctions passive euthanasia and the DDE use. They felt that not doing so could
cause patients to fear that their doctors are out to do them harm instead of always
seeking to cure or assist them in positive ways.1219 This issue, while acknowledged
1215
A similar argument is deployed in sections 2.3 and 2.3.2 of chapter 2 of this work in questioning
the DDE’s use of foresight to excuse the doer of an action which arguably hastens death. One simply
cannot bring about the side effects of one’s actions without intending to do so when one acts in a
manner which one knows will bring them about. One may not want to bring them about, but want and
intention are very different things.
1216
Huxley A, Brave New World (London: Harper Collins Publishers 1994).
1217
An interview with ‘Doctor 3’ by Edwards. J conducted on 27 th June 2009.
1218
An interview with ‘Doctor 4’ by Edwards. J conducted on 3 rd September 2009.
1219
An interview with ‘Doctor 5’ by Edwards. J conducted on June 17 th 2009; An interview with
‘Doctor 8’ by Edwards. J conducted on 10th November 2009; An interview with ‘Doctor 10’ by
328
and explored by this work in section 6.7 of chapter 6, was not given a great deal of
attention during the interviews because they were focused on the physicians’
experiences as opposed to those of their patients.
Also, the use of these distinctions as Soma for the conscience is not, in and of itself,
the matter the MSB takes issue with. Indeed, if they allow the proper and fair practice
of medicine, they are to be lauded. Rather, it is the implication that assisted dying is
both available and unregulated under the guises of passivity and foreseen but
unintended deaths under the DDE which spurred this work to claim that reform to the
law is not only desirable but necessary.
In grounding this claim, chapter 4 dismissed one of the most predominant
counterarguments against using the protection of autonomy as a basis for needing
legal change. Proponents of this argument, Patterson,1220 Keown1221 and Gormally1222
to name three, argue that the value of life outweighs the value of preserving a person’s
autonomy in all circumstances. The MSB on the other hand makes a case for the
exercise of autonomy being of comparable value to life, for without it one would not
be able to interact with one’s world and gain the innumerate positive effects from
doing so.
Chapters 5 and 6 expanded on chapter 4’s conclusion and explored the wider debate
on whether or not reform would be either legally or morally sound. The interviews
conducted pursuant to this work also touched upon this area, with 7 of the 13
practitioners interviewed agreeing that some kind of reform could be implemented
without offending the overarching moral principles prevalent in modern medicine.1223
Edwards. J conducted on 18th March 2010; An interview with ‘Doctor 12’ by Edwards. J conducted on
7th January 2010; An interview with ‘Doctor 13’ by Edwards. J conducted on 1 st February 2010.
1220
Paterson C, Assisted suicide and euthanasia: a natural law ethics approach (Aldershot: Ashgate
2008).
1221
Keown J, Euthanasia, Ethics and Public Policy (Cambridge: Cambridge University Press 2002).
1222
Gormally L (ed), Euthanasia, Clinical Practice and the Law (London: The Linacre Centre for
Health Care Ethics 1994).
1223
An interview with ‘Doctor 1’ by Edwards. J conducted on October 23 rd 2008; An interview with
‘Doctor 3’ by Edwards. J conducted on 27 th June 2009; An interview with ‘Doctor 6’ by Edwards J
conducted on 14th September 2009; An interview with ‘Doctor 7’ by Edwards J conducted on 21 st
October 2009; An interview with ‘Doctor 8’ by Edwards. J conducted on 10 th November 2009; An
interview with ‘Doctor 10’ by Edwards. J conducted on 18 th March 2010; An interview with ‘Doctor
12’ by Edwards. J conducted on 7th January 2010.
329
All but one of those who supported reform however felt that legalising assisted dying
in any form would be ill advised, and the AID Bill’s format reflects this.
Chapter 6 section 6.7 also exposed a shortcoming of the empirical element of this
work; namely the lack of data on how patients perceive their physicians as a result of
the use of the DDE and passive euthanasia. While such an investigation is outside the
remit of this work, it is an interesting area for further study.
Chapter 7 explored the numerous possible avenues through which reform could be
affected to the law, and chapter 8 built on the conclusion that legislative reform would
best serve the MSB’s purposes and set about introducing and deconstructing the AID
Bill. The Bill’s strengths and weaknesses were discussed and its format dissected, and
it was concluded that, though imperfect, and unlikely to spur Parliament to reconsider
the law on euthanasia, it nevertheless adds an important new point of view to the
debate on assisted dying.
There have been innumerate repetitions of the assertion that the law on euthanasia
needs reforming, but none have made a case for such in the way the MSB does. Too
much about the status quo resembles the bottom of the feared slippery slope for
reform not to be a necessity.
330
Appendix 1
The Assistance In Dying Bill (2011)
1
Authorisation
(1)
The provisions of this Bill provide immunity from prosecution to doctors
who perform active euthanasia as defined under clause 2(1) of this Bill on
a person who has an intractable illness which: a) is causing him/her
untreatable pain which cannot be adequately alleviated by palliative care
and b) may have caused him/her to be physically incapable of taking
his/her own life.
(2)
Or, who provide a person who is suffering from untreatable pain as a
consequence of an intractable illness, which cannot be adequately relieved
by palliative care, with a means to end his/her own life with dignity at a
time of his/her choosing.
(3)
No physician is under any obligation to assist a patient under this Bill.
2
Definitions
(1)
For the purposes of this Bill“active euthanasia” means the intentional procurement of a patient’s
death by way of either withdrawing or removing life-sustaining
treatment, or by administering a lethal agent.
“adequately” the adequacy of a treatment is to be measured by the
patient’s subjective experience of its effects.
“capacity” is assessed under the provisions of the Mental Capacity Act
(MCA) 2005 part 1, sections 1, 2 and 3 and means that the qualifying
patient is legally able to consent to treatment. If this element is not
established no treatment can be given.
“competent” means having the capacity to make a considered and
rational choice concerning treatment.
“declaration” means a witnessed declaration made in writing by the
qualifying patient in the form set out in Schedule 1 of this Bill.
“family doctor” means the qualifying patient’s doctor. This person can
also fulfil the role of ‘primary physician’ but is not obliged to in any
way.
“incapacity” means the inability to legally consent to treatment. The
phrase incompetent is to be construed in the same manner.
“independent” means to be free from outside influences. To be
independent a person must have nothing to gain from the situation and
331
their involvement must not be influenced by relationships with those
involved i.e. a family member cannot witness the declaration made by
the qualifying patient as he/she may benefit from his/her death.
“informed decision” means a decision made by the qualifying patient
who, in possession of all of the material facts i.e. his/her prognosis,
possible alternative treatments, further palliative care, decides he/she
wishes to end his/her life under the provisions of the Bill.
“intractable illness” means a physical illness which, in the reasonable
medical judgement of the primary and secondary physicians, is
inevitably progressive, the effects of which cannot be reversed by any
treatment acceptable to the patient, although temporary relief may be
possible.
“lethal agent” refers to the drug administered or provided to the patient
by the primary physician with which the patient’s life is ended.
“patient” means a person who is under the care of a physician.
“physician” means a registered medical practitioner.
“primary physician” means the physician approached by the qualifying
patient regarding physician assisted suicide. This could, but need not
be the qualifying patient’s family doctor.
“psychiatrist” means a registered practicing psychiatrist.
“qualifying patient” means a patient who meets the conditions set
down in clause 3 of this Bill.
“secondary physician” means a physician practicing in the National
Health Service who is qualified by speciality to make a professional
diagnosis and prognosis regarding the qualifying patient’s condition
and who is independent of the primary physician.
“sessions” refers to the consultations between the primary and
secondary physicians and the qualifying patient.
“untreatable pain” means corporeal, bodily pain and/or mental anguish,
which cannot be adequately alleviated to the patient’s satisfaction by
palliative care.
“waiting period” means the period of time that must elapse between
the patient’s initial request for assisted suicide and the administration
of drugs to cause death; a minimum of 14 days.
“witness” means a person who signs an attested declaration.
PART A
3
The provision of immunity from prosecution to doctors who act in
accordance with the provisions of this Bill
(1)
Subject to the provisions of clauses 1(1), 1(2) and Part B of this Bill,
any primary physician, acting in good faith, who takes positive steps to
end his patient’s life, or attempts to do so, when that patient is a
qualifying patient and may be, due to his/her illness, physically
incapable for ending his/her own life, will not be guilty of an offence.
(2)
Subject to the provisions of clauses 1(1), 1(2) and Part B of this Bill,
any primary physician acting in good faith, who provides a qualifying
332
patient with a lethal agent with which he/she takes his/her own life,
will not be guilty of an offence.
(3)
A physician to whom sub-clauses 3(1) and 3(2) apply shall be deemed
not to be in breach of any professional oath or affirmation.
PART B
4
Defining the qualifying patient
(1) Before the primary physician can assist the qualifying patient’s suicide or
perform euthanasia, the conditions set out in the following clause must be
met.
(a) The patient must be suffering from untreatable pain as a result of an
intractable illness.
(b) The patient may, by virtue of his/her intractable illness or other
physical incapacity, be unable to take his/her own life.
(c) The patient must have reached the age of 18 years.
(d) Subject to the provisions in clauses 5(1), 5(2), 6(2) and 6(3), the
patient must be deemed to have capacity to consent to treatment.
5
The primary physician’s response to a request for assistance
(1) Once the patient has requested assisted suicide or euthanasia the primary
physician must make a preliminary diagnosis and prognosis.
(2) Psychiatric referral is not mandatory under this Bill. However if, in his
opinion, the patient is suffering from a psychological or psychiatric problem
the primary physician must refer him to a qualified psychiatrist.
(3) If, after psychiatric evaluation the patient is either found to be unable to
consent to treatment and/or is under the influence of others to seek assistance
in dying, the request for PAS or euthanasia under this Bill will be considered
void and the patient will be offered counselling and treatment for his/her
mental issues.
(4) If the patient is deemed competent, the primary physician’s duties are as
follows:
(a) He must thoroughly examine the patient and conclude to the best of
his ability that his prognosis and diagnosis are accurate.
(b) He must conclude on the basis of the psychiatrist’s evaluation (if
one was consulted in pursuance of clause 5(2)) and his own
examination of the patient that he/she is competent to consent to
treatment and that he is free of coercion.
(c) He must conclude on the basis of his diagnosis/prognosis that the
patient is in untreatable corporeal pain.
333
(d) He must, (in collusion with the psychiatrist if one was consulted in
pursuance of clause 5(2)) counsel the patient repeatedly about his/her
options regarding further treatment, further palliative care and pain
control. The minimum number of these sessions is four.
(e) If, after the minimum number of the sessions referred to in clause
5(4)(d) has passed, the patient repeats his/her request for euthanasia or
PAS the primary physician and the psychiatrist (if one was consulted
in pursuance of clause 5(2)) must talk him/her through the process of
euthanasia/PAS to ensure full comprehension before making the
referral to the secondary physician.
(5) No person may give or promise to give the primary or secondary medical
practitioner any reward or advantage for either assisting, or refusing to assist a
patient to die. Furthermore, any physician who accepts such a reward or
advantage has no legal right or capacity to receive or retain it
6
The role of the secondary physician
(1) Once the provisions in clause 5 are complied with the patient is referred to
the secondary physician.
(2) Before the first session with the patient the secondary physician must have
received the patient’s medical records and the records of the sessions held
with the primary physician and the psychiatrist (if one was consulted
pursuant to clause 5(2)). From these he must make a preliminary
judgement on:
(a) The patient’s competence to consent to treatment.
(b) The freedom with which the patient has made his/her request.
(3) If either point (2)(a) or (2)(b) is in doubt the secondary physician must
refer the patient to an independent psychiatrist for a full psychiatric
evaluation/treatment.
(4) If the patient has already been referred to a psychiatrist under clause 5(2),
he/she will be re-referred for a consultation to ascertain whether he/she is
competent, and whether his/her request for assistance under this Bill has
been made free from coercion.
(5) The secondary physician must have at least four sessions with the patient,
during which he will:
(a) ensure that the diagnosis/prognosis of the primary physician is
correct through thorough examinations of the patient.
(b) counsel the patient as to possible palliative care options/further
treatment/pain control.
(c) discuss the patient’s family situation and offer support and
guidance if need be.
(d) conclude that the patient is in untreatable corporeal pain.
(e) inform the patient of the process of euthanasia/PAS.
334
(f) ensure that the patient, prior to the administration of PAS, signs an
attested declaration which can be revoked at any time.
7
The Sessions
(1) The phrase “sessions” in paragraphs (5)(4)(d), (5)(4)(e), (6)(2) and (6)(5)
refers to the individual consultations between the patient and his/her
doctors/psychiatrist. These sessions must:
(a) be held in a time and place suitable for the patient.
(b) be at least 20 minutes in length each to ensure proper counsel is
given.
(c) be tailored to the patient’s individual needs.
(2) General themes which must be covered in the sessions include but are not
restricted to:
(a)
(b)
(c)
(d)
(e)
8
how the patient’s palliative care is progressing.
his/her diagnosis/prognosis as it progresses over time.
the alternatives to PAS.
his/her family situation.
suggestions for future courses of palliative care.
The Declaration
(1) When clauses 4, 5 and 6 have been fulfilled the patient must make a
declaration in the form set out in Schedule One of this Bill.
(2) The declaration must be signed by:
(a) the patient.
(b) the primary physician to attest the patient’s diagnosis/prognosis.
(c) the psychiatrist (if one was consulted pursuant to clause 5(2) or
6(3)) to attest the patient’s competence to consent to treatment.
(d) the secondary physician to attest the diagnosis/prognosis of the
primary physician.
(3) These signatures must be witnessed by two independent witnesses, one of
whom must be a solicitor with a current practising certificate.
(4) The solicitor may only witness the declaration if:
(a) he is independent of the patient and the patient’s family.
(b) he has nothing to gain from the patient’s death.
(c) the patient has provided proof of his/her identity.
(5) The second witness may only witness the declaration if:
(a) the patient has proved his/her identity to him/he knows the patient.
335
(b) he has nothing to gain, pecuniary or otherwise, from the patient’s
death.
(6) Those people who cannot witness the declaration:
(a)
(b)
(c)
(d)
any person with a pecuniary interest in the patient’s death.
the primary physician.
the secondary physician.
the psychiatrist.
(7) The declaration will come into force after the requisite waiting period has
elapsed and will remain in force unless revoked or after the passage of six
months.
(8) The patient and witnesses shall sign and witness the declaration
respectively at the same time and in each other’s presence.
(9) Any person who signs the declaration forfeits any and all financial and
other benefits that person would otherwise, directly or indirectly, gain as a
result of the patient’s death.
(10) No person may give or promise to give the primary or secondary medical
practitioner any reward or advantage for either assisting, or refusing to
assist a patient to die. Furthermore, any physician who accepts such a
reward or advantage has no legal right or capacity to receive or retain it.
9
The Assistance
(1) Prior to administering or making a lethal agent available to the patient
under this Bill the primary physician must:
(a) inform the patient of his/her right to revoke the declaration.
(b) recommend to the patient that he/she notifies his/her next of kin of
his/her request for assistance under this Bill.
(c) verify
immediately
before
assisting
the
patient’s
suicide/performing euthanasia that the declaration is in force and
that it has not been revoked.
(d) ask the patient immediately prior to assisting his/her suicide if he
wishes to revoke the declaration.
(2) The primary physician will either:
(a) provide the qualifying patient with the lethal agent, with which that
patient will end his/her own life in the physician’s presence, or;
(b) administer the lethal agent to the patient himself.
336
10
Conscientious Objection
(1) This clause recognises the right of medical practitioners to object to giving
either assisted suicide or euthanasia. Any family doctor/primary/secondary
physician who is approached by a qualifying patient in pursuance of aid under
the provisions of this Bill is under no obligation, contractual or otherwise to
render such aid if he/she conscientiously objects to doing so.
(2) The primary physician has no obligation to refer the patient to a specific
doctor who will assist him/her under this Bill.
(3) The secondary physician has no obligation to refer the patient to a specific
doctor who will assist him/her under this Bill.
11
Palliative Care
(1) The primary and secondary physicians must not assist a patient under this
Bill if, in his or her opinion there are palliative care options reasonably
available to the patient to alleviate the patient’s pain and suffering to a level
that is acceptable to the patient.
(2) If a patient has been offered assistance under this Bill, and his/her
palliative care brings about the remission of his/her suffering to a level
acceptable to him, the physician must not, in pursuance of the patient’s
original request for assistance, assist him or her under the Bill.
(3) If the palliative care ceases to alleviate the patient’s pain and suffering to
an acceptable level, the physician may continue to assist the patient under the
Bill only if the patient indicates to him or her that the patient’s wish is to
pursue the original request.
PART C
12
Insurance
(1) No policy of insurance which has been in force for 12 months as at the date
of the patient’s death shall be invalidated by reason of a doctor having assisted
a qualifying patient to die under the provisions of this Bill.
(2) The issuance of life, health or accident insurance or annuity policy, or the
rate charged for any policy, cannot be altered due to a request for assistance in
suicide or euthanasia under this Bill.
13
Documentation and medical records
(1) The primary physician shall ensure that the following are documented and
filed in the patient’s medical records-
337
(a) the reports of the psychiatrist, primary and secondary physicians
detailing the patient’s capacity to consent to treatment and the freedom
with which that consent has been given
(b) any written or oral requests from the patient for assistance under
this Bill
(c) the declaration
(2) The primary physician shall send a full copy of the patient’s file to the
Commission for the country or region concerned within seven days of the
qualifying patient having been assisted to die.
14
The Commission(s)
(1) There shall be established such number of Monitoring Commissions
covering countries or regions forming part of Great Britain as the Secretary of
State may determine, to review the operation of this Bill, and to hold and
monitor records maintained pursuant to this Bill.
(2) A Commission shall consist of an uneven number of members appointed
by the Secretary of State, of whom(a) one shall be a legal practitioner
(b) one shall be a registered medical practitioner
(c) one shall be a registered psychiatrist
(d) one shall be an expert in palliative care/hospices
(e) one shall be a lay person having firsthand knowledge or experience
caring for a person with an intractable illness
(3) If, in relation to a file sent to a Commission in accordance with clause
13(2), three of its members consider that the qualifying conditions have not
been met, they shall refer the matter to the Director of Public Prosecutions.
(4) A Commission to which a file has been sent in accordance with clause
13(2) shall confirm to the primary physician concerned whether the qualifying
conditions have been met as soon as reasonably possible after the date of
receiving such notification of the patient having been assisted to die, whether
or not such assistance led to the patient’s death.
(5) The Secretary of State shall publish an annual statistical report of
information collected under this clause.
(6) The Secretary of State may dismiss any of the members of the
Commissions both at their own request, and for reasons of unsuitability or
incompetence.
(7) All of the members of the Commissions shall receive a holiday allowance,
as well as a reimbursement of travel and accommodation expenses, insofar as
these expenses are not already reimbursed from State Funds.
338
(8) The members of the Commissions are obliged to keep confidential any
information acquired in the performance of their duties, except where any
statutory provision obliges them to disclose that information, or where
disclosure is necessary in pursuance of their other duties.
(9) Any member of a Commission who takes on a case where his
circumstances or interests affect his impartiality shall exempt himself from
that case and may be challenged on his opinion.
15
Offences
(1) Excluding witnesses as defined in clauses 8(3), 8(4), 8(5) and 8(6) of this
Bill, a person commits an offence if he wilfully falsifies or forges a declaration
made under clause 8 of this Bill with the intent or effect of causing the
patient’s death. A person guilty of an offence under this sub-clause shall be
liable, on conviction on indictment, to imprisonment for life.
(2) A witness commits an offence if he wilfully puts his name to a statement
he knows to be false. A person guilty of an offence under this sub-clause shall
be liable on conviction to imprisonment for a term not exceeding five years.
(3) A person commits an offence if he wilfully conceals or destroys a
declaration made under clause 8. A person guilty of an offence under this subclause shall be liable on conviction to imprisonment for a term not exceeding
three years.
(4) A physician, psychiatrist, or witness commits an offence if he puts his
name to a declaration in the knowledge that he will gain financially from the
patient’s death. A person guilty of an offence under this sub-clause shall be
liable on conviction to imprisonment for a term not exceeding five years.
16
Power to make regulations
(1) The Secretary of State may make regulations under this Bill—
(a) to ensure the intent of this Bill is carried out;
(b) determining classes of persons who may or may not witness a
declaration made under clause 8;
(c) regulating the custody of records and the collection of information
regarding the operation of this Bill; and
(d) making provision about appointments to and the operation of the
Commissions.
(2) The power to make regulations under this Bill is exercisable by Statutory
Instrument.
339
(3) No Statutory Instrument may be made under this Bill unless a draft of the
instrument has been laid before, and approved by a resolution of, each House
of Parliament.
17
Short title and extent
(1) This Bill may be cited as the Assistance In Dying Bill 2011.
(2) This Bill does not extend to Northern Ireland.
340
SCHEDULE
FORM OF DECLARATION
Declaration made_________20__
I,__________________, am an adult of sound mind who has been resident in Great
Britain for at least twelve months as at the date of this declaration.
I have been counselled by a psychiatrist, Dr________________, who has determined
that I am legally able to consent to treatment.
I am suffering from___________________________, which my primary physician,
Dr_________________________, has determined is an intractable illness and which
has been confirmed by the secondary physician, Dr___________________________.
This illness is causing me untreatable pain. I have received a course(s) of palliative
care on the recommendation of my doctors and these have had little to no impact on
my condition.
I have been informed of and counselled extensively regarding my diagnosis,
prognosis, alternative treatments and the process of being assisted to die.
Please delete as appropriate:
(1) I request that my primary physician provide me with a lethal agent with the
objective of assisting me to die.
(2) I request that my primary physician administers a lethal agent to me with the
objective to assisting me to die.
I have decided to inform/not decided to inform my family of my decision.
I understand that I have the right to revoke this declaration at any time.
Signed: _______________________
Date: _________________________
DECLARATION OF WITNESSES
I declare that I am a solicitor with a current practising certificate and that:
(a)
(b)
(c)
(d)
I am independent of the patient and his/her family
I have nothing to gain from the patient’s death
The patient has provided proof of his/her identity to me
I am certain, on the evidence provided by the primary and secondary
physicians, and by the psychiatrist that the patient is of sound mind and
that his/her decision is free from extraneous influences
(e) I am satisfied that the patient understands the effect of the declaration
and that it can be revoked at any time
341
Signed: _________________________________ (Witness 1)
Date:
_________________________________
I declare that I:
(a) I have nothing to gain from the patient’s death
(b) The patient has provided proof of his/her identity to me
(c) I am certain, on the evidence provided by the primary and secondary
physicians, and by the psychiatrist that the patient is of sound mind and
that his/her decision is free from extraneous influences
(d) I am satisfied that the patient understands the effect of the declaration
and that it can be revoked at any time
Signed: _________________________________ (Witness 2)
Date:
_________________________________
Notes
1. One of the witnesses must be a solicitor with a current practising certificate who
has satisfied himself that the patient understands the effect of the declaration.
2. The patient and witnesses shall sign and witness the declaration respectively at the
same time and each in the presence of the others.
3. The primary or secondary physician, psychiatrist, or a relative or partner (by blood,
marriage or adoption) of the qualifying patient signing this request may not be a
witness.
342
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http://conventions.coe.int/treaty/en/treaties/html/164.htm.
http://www.dailymail.co.uk/news/article-393143/Assisted-suicide-legal-saydoctors.html.
http://www.dailymail.co.uk/news/article-1102953/Gordon-Brown-totally-relaxinglaw-assisted-suicide.html.
http://www.dailymail.co.uk/news/article-202747/Third-nurses-assisted-suicide.html.
http://www.dailymail.co.uk/health/article-1181438/Nurses-dilemma-surge-assistedsuicide-requests.html.
http://www.dailymail.co.uk/news/article-1350734/Pensioner-smothered-wife-mercykilling-freed-jail-appeal-judges.html.
http://www.dailymail.co.uk/news/article-371430/Mercy-killing-father-cleared
murder.html.
360
http://www.dailymail.co.uk/news/article-1329027/Frances-Inglis-gave-son-lethalheroin-injection-jail-term-slashed.html.
http://www.dailymail.co.uk/news/article-1244731/Frances-Inglis-guilty-murder.html.
http://www.deathwithdignity.org/news/news/statistics.1998.2005.asp.
http://dictionary.reference.com/browse/removal.
http://www.dignityindying.org.uk/.
http://www.fih.org.uk/healthy_living/chronic_illness/index.html.
http://www.gallup.com/poll/23356/Public-Continues-Support-RighttoDie-TerminallyIll-Patients.aspx.
http://www.gmc-uk.org/guidance/ethical_guidance/6858.asp.
http://www.guardian.co.uk/uk/2010/jan/25/kay-gilderdale-devoted-mother.
http://www.liberty-human-rights.org.uk/press/press-releases-2001/first-ever-right-todie-case-under-human-rig.shtml.
http://www.linacre.org/elderly.html
http://news.bbc.co.uk/1/hi/health/background_briefings/euthanasia/332464.stm.
http://news.bbc.co.uk/1/hi/in_depth/uk/2000/the_shipman_murders/news_and_reactio
n/default.stm.
http://www.nice.org.uk/media/2C3/31/CCReportOnQALYsAndSeverity.
http://www.philosophybasics.com/general_glossary.html.
http://plato.stanford.edu/entries/practical-reason-action/.
http://plato.stanford.edu/entries/practical-reason-action/#2.
http://plato.stanford.edu/entries/kant-moral/.
http://plato.stanford.edu/entries/freewill/.
http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/6170602/Chiefjudge-Lord-Phillips-admits-to-sympathy-for-assisted-suicides.html.
http://www.telegraph.co.uk/comment/personal-view/5845658/The-notion-of-a-rightto-a-good-death-undermines-society.html.
361
http://www.telegraph.co.uk/news/newstopics/debates/6129848/Are-we-killing-ourelderly.html.
http://www.telegraph.co.uk/comment/personal-view/3621791/Killing-your-son-isnot-proof-of-love.html.
http://www.telegraph.co.uk/news/uknews/1466543/100-year-old-cut-his-ailing-wifesthroat-in-act-of-love.html.
http://www.telegraph.co.uk/comment/letters/5990950/Individual-choice-oneuthanasia-is-more-important-than-philosophical-argument.html.
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http://www.timesonline.co.uk/tol/news/uk/article7040908.ece.
http://www.usconstitution.net/const.html#Am4
http://www.vatican.va/romancuria/congregations/cfaith/documents/rc_con_cfaith_doc
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http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/November/documents/
hf_jp-ii_spe_20041112_pc-hlthwork_en.html.
http://wordnetweb.princeton.edu/perl/webwn?s=intentionally.
Government Reports
Criminal Law Revision Committee 12th Report (1973): Penalty for Murder Cmnd.
5184.
Criminal Law Revision Committee 14th Report (1980): Working Paper on Offences
against the Person Cmnd. 7844.
HLSC (1988-9) Murder and Life Imprisonment, HL Paper 78-1 (the Nathan
Committee).
HLSC (2005) Report on the Assisted Dying for the Terminally Ill Bill 2004, HL Paper
86-I.
HLSC (2005) Report on the Assisted Dying or the Terminally Ill Bill 2004, Volume II:
Evidence, HL Paper 86-II.
Law Com No. 83 (1977) Criminal law. Report on defences of general application.
Law Com No. 143 (1985) Codification of the criminal law. A Report to the Law
Commission.
362
Law Com No. 231 (1995) Mental Incapacity.
Law Com No. 177 (2005) A new Homicide Act for England and Wales?
Law Com Working Paper No. 55 (1974) Codification of the criminal law. General
principles and defences of general application.
Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide
(2010).
Royal Commission on Capital Punishment (1949-53) Report of the Royal Commission
on Capital Punishment.
Case list
Airedale NHS Trust v. Bland [1993] 1 All ER 821.
Barber v. Superior Court, 147 Cal. App.3d 1006 (1983).
Bolam v. Friern HMC [1957] 2 All ER 118.
Bolitho v. Hackney HA [1997] 4 All ER 771.
Bouvia v. Superior Court 179 Cal App 3d 1127 (1986) USA.
Boyd v. Registrars of Voters of Blechertown, 334 NE 2d 629 (1975).
Canterbury v. Spence 464 F 2d 772 (1972).
Chatterton v. Gerson [1981] QB 432.
Cobbs v. Grant, 8 Cal. 3d 229, 242 (1972).
Compassion in Dying v Washington 79 F. 3d 790; 1996 U. S. App. LEXIS 3944.
Cruzan by Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990).
Cunliffe v. Goodman [1950] 2 K.B. 237.
Freeman v. Home Office [1984] 1 All ER 1036.
Glass v. United Kingdom (Application no. 61827/00) (2004).
Gillick v. West Norfolk & Wisbech AHA [1986] AC 112.
Griswold v. Connecticut 381 US 479, 1965.
363
Guardianship of Jane Doe (411 Mass. 512; 583 N.E. 2d 1263; 1992 Mass. LEXIS
10).
Hamish v. Children’s Hospital Medical Centre, 387, Mass, 154, 439 NE 2d 240
(1982).
HL v. UK (Application no. 45508/99) (2004).
Humphreys [1995] 4 All ER 1008.
Hyam v. DPP [1975] AC 55.
In the Matter of Kathleen Farrell, 529 A 2d 404 (1987).
Kaimowitz v. Michigan Department of Mental Health 42 USLW 2063 (1973).
Lane v. Candura 6 Mass App Ct 377, 383, 376, NE 2d 1232 (1978).
McKay v. Bergstedt (1990) 801 P 2d 617 (Nevada Supreme Court).
Ms B v. An NHS Trust Hospital [2002] EWHC Fam 429.
NHS Trust A v. M [2001] 2 FLR 367.
NHS Trust B v. H [2001] 2 FLR 501.
Office of Public Prosecutions v. Chabot (1994) Nederlandse Jurisprudentie 656.
Patricia E. Brophy v. New England Sinai Hospital, Inc. No. N-4152 Supreme Judicial
Court of Massachusetts 398 Mass. 417; 497 N.E.2d 626; 1986 Mass. LEXIS 1499.
Quill v Vacco 80 F. 3d 716;1996 U. S. App. LEXIS 6216
Re A (children) [2000] 3 FCR 577, [2001] Fam Law 18, [2001] 2 WLR 480, [2000] 3
FCR 577; [2001] Fam 147.
R v. Adams [1957] Crim. L.R. 365.
R v. Ahluwalia (1992) 4 AER 889.
Re AK (Medical Treatment: Consent) [2001] 1 FLR 129.
R v. Arthur (1993) 12 BMLR 1.
R (A and B) v. (1) East Sussex County Council (2) The Disability Rights Commission
(Interested Party) [2003] EWHC 167 (Admin).
Re B (Adult: Refusal of Medical Treatment) [2002] 2 FCR 1.
364
R v. Bournewood Community and Mental Health NHS Trust Ex p. L [1998] UKHL
24.
R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273.
Re C (Adult Refusal of Medical Treatment) [1994] 1 WLR 290; [1994] All ER 819.
R v. Carr The Sunday Times, 30 November 1986, 1.
R v. Charlton (2003) EWCA Crim 415.
R v. Cocker [1989] Crim. L.R. 740.
R v. Cox (1992) 12 BMLR 38.
R v. Dudley and Stephens (1884) 14 QBD 273.
R v. Gibbons and Proctor (1918) 62 JP 287, 13 Cr App R 134.
R v. Instan [1893] 1 QB 450.
Re J (A Minor) (Wardship: Medical Treatment) (1990) 6 BMLR 25.
Re JT (Adult: Refusal of Medical Treatment) [1998] 1 FLR 48.
R v. Mathews and Alleyne [2003] WL 117062.
Re MB (Medical Treatment) [1997] EWCA Civ 136.
R v. McShane (1977) 66 Cr App Rep 97.
R v. Moloney [1985] AC 905.
R v. Moor [2000] Crim. L.R. 31.
R v. Nedrick [1986] 3 All ER 1.
R v. Owino (1996) 2 Cr App R. 128.
R v. Pittwood (1902) 17 T.L.R. 37.
R. (on the application of Pretty) v DPP [2001] UKHL 61; [2001] 3 WLR 1598.
R (on the application of) Purdy v. Director of Public Prosecutions & Another [2008]
EWHC 2565.
R (Purdy) v. DPP (2009) EWCA Civ 92.
R (on the application of Purdy) v. DPP [2009] UKHL 45.
365
Re Quinlan 70 N.J. 10, 355 A.2d 647, 1976.
R v. Stone and Dobinson [1977] QB 354.
Re T (adult: refusal of medical treatment) [1992] 4 All ER 649.
Re T (Adult: Refusal of Treatment) [1993] Fam 95.
R v. Thornton (No 2) (1996) 2 AER 1023.
Re W (Adult: Refusal of Treatment) [2002] EWHC Fam 901.
Roe v. Wade 410 US 113, 1973.
R v. Woollin [1998] 4 All ER 103.
R v. United Kingdom (1983) 33 DR 270.
Satz v. Perlmutter, 362 So. 2d 160 (Fla. 4th DCA 1978).
Schloendorff v Society of New York Hospitals (1914) 211 N.Y. 125, 105 N.E. 92
(1914).
Secretary of State for Trade v. Markus [1976] Crim. L.R. 276.
Seers (1984) 79 Cr App R 261.
Sidaway v. Board of Governors of the Bethlam Royal Hospital and the Maudsey
Hospital and Others [1985] 1 AC 871.
Smith (Morgan James) [2000] 3 WLR 654.
Smith (Wallace Duncan) (No 4) [2004] EWCA Crim 631; [2004] QB 1418.
St George’s Healthcare NHS Trust v. S [1999] Fam 26.
Superintendent of Belchertown State School v. Saikewicz. Supreme Judicial Court of
Massachusetts, Hampshire, 373 Mass. 728, 370 N.E.2d 417 (1977).
Thor v. Superior Court 5 Cal 4th 725 (1993).
Treacy v. DPP [1971] A.C. 537.
Vacco v. Quill (521 U.S. 793; S. Ct. 2293; 1997 U.S. LEXIS 4038; 138 L. Ed. 2d
834).
Ward of Court (In the matter of a) [1995] 2 ILRM 401.
W NHS Healthcare Trust v. KH [2004] WL 2458658.
366
Washington v. Glucksberg, 521 U.S. 702 (1997).
Statutes
England and Wales
The Homicide Act (1957) – s. 2, 3 and 4.
The Suicide Act (1961) – s. 3(3).
Criminal Justice Act (2003) – s.12; s. 269; Schedule 21, para 11(f).
Mental Capacity Act (2005) – s. 1(5); 3(26)
The Assisted Dying for the Terminally Ill Bill (2004), (2006).
Australia
Rights of the Terminally Ill Act (1995).
Belgium
Euthanasia Act (2002).
Oregon
The Oregon Death with Dignity Act (1997).
The Netherlands
The Termination of Life on Request and Assisted Suicide (Review Procedures) Act
(2002).
Switzerland
The Swiss Criminal Code (1937)
Other sources
Charter of the United Nations (1945).
Universal Declaration of Human Rights (1948).
367