An examination of a patient's right torefuse medical treatment:

Should there be a right to die?

Student I.D. 40564104

Abstract

The sanctity of human life is paramount to a democratic and harmonious society. The

protection of this right is presently uncertain in jurisdictions around the world due to

rights of self-determination and patient autonomy bestowed to individuals and the

extension of these rights to life-ending methods, such as euthanasia and assisted

suicide. Accordingly, there is a need for an examination of all factors specifically for the

U K.

This work aims to examine the impact of granting individuals the right to self-

determination in relation to refusing medical treatment. This will be achieved by first

analysing the law in place, and then considering life-ending methods which seem to

threaten the sanctity of human life.

It is also essential to look at other jurisdictions who have adopted these life-ending'

methods, and the benefits these provide. It can therefore be ascertained whether any of

these life-endings methods have a place in the UK; which will fulfil an overall intention of

the study: to recommend proposals to change the law in place in the UK.

Contents

1. Introduction .................................................

2. Current Law /Literature Review ......................

Patient Autonomy .......................................

• The significant decision in Re T ..................

• Exceptions to Re T .....................................

• Doctor's Duties ...........................................

.................................................1

................................................. 3

.................................................3

.................................................4

.................................................6

................................................. 8

3. Advance Decisions .............................................................................................9

Criticisms ....................................................................................................10

• Lasting Power of Attorney ...........................................................................12

• Euthanasia Directives ..................................................................................12

4. Euthanasia .........................................................................................................14

• Different Forms of Euthanasia ...................................................................14

• The Prohibition of Passive Euthanasia .......................................................15

• Should Voluntary Active Euthanasia be legalised? .....................................19

5. Physician-Assisted Suicide .............................................................................21

• Difference between PAS and VAE ..............................................................21

• Benefits of Physician-Assisted Suicide .......................................................22

• Justification for legalising Physician-Assisted Suicide ................................24

6. The Right to Die ................................................................................................27

• Does a Right to Die exist? ..........................................................................27

• Comparison to American cases ...................................................................30

• When the Right to Die should be allowed ...................................................33

7. Conclusion: A New Approach .........................................................................34

Bibliography...........................................................................................................37

~1

Chapter One:

Introduction

In November 2007, a story in the United Kingdom about a young woman who died after

giving birth to twins garnered much media attention. The reason for the widespread

interest was because the woman died as a result of refusing a blood transfusion

because she was a Jehovah's Witness, and therefore did not believe in accepting blood.

Upon this woman's progression to a serious condition, the doctor's sought to overrule

the woman's own refusal by seeking the permission of her husband to allow the

transfusion, advising that his wife would die without it. However, again, the treatment

was refused for religious reasons.'

The needless death of this young mother is the catalyst upon which this study is based.

Surely the law can intervene to stop such unnecessary deaths? Orin the alternative,

Parliament must have been prompted to change the current laws in relation to refusing

medical treatment since such a story?

The purpose of this study is to evaluate the current law in relation to the right to refuse

medical treatment, and to determine whether the mechanisms in place to achieve this

right are satisfactory, or in the alternative devise appropriate amendments to the current

legal position.

However, other areas are questioned by the above case besides the right to refuse

treatment. After the treatment was refused, the doctors merely watched on as their

patient died. This omission raises the question of euthanasia; by the doctor failing to act

to intervene in her death is he also indirectly liable for allowing her to die?

~ <http://www.guardian.co.uk/uk/2007/nov/OS/health.reli ion> assessed 11 March 2008`A 22-year-old mother died just hours after giving birth to twins because doctors were forbidden fromgiving her a blood transfusion as a Jehovah's Witness. Emma Gough's family, including her Jehovah'sWitness husband, Anthony, 24, refused to overrule her wishes and she died after losing blood.'

A gradual step on from the question of doctors performing euthanasia is physician-aided

suicide. Although it does not apply in the above case, by allowing a patient to construct

their own death by withholding or withdrawing treatment, it raises the question: can a

doctor be held liable for physician-aided suicide? Finally, the heavily debated issue of

the right to die' will be examined to determine if the right exists in the UK, and if not

should this right be provided for?

The second chapter of this study will examine the current law in relation to refusing

medical treatment. This is highly important as subsequent chapters will undermine basic

principles, and question if these are the most efficient rules in this area of law. The

following chapter deals with a method of self-determination that has recently been

introduced to the UK: Advance Decisions. Questions will be raised as to their validity in

this jurisdiction.

The different forms of euthanasia will be examined in chapter four which will help to

understand the current debate on this area. High-profile cases have been heard on this

topic and calls for reform have been introduced by commentators. The fifth chapter will

highlight the pro's and con's of physician-assisted suicide; a form of controlling ones

death that is becoming generally accepted on a world-wide basis with several countries

adopting legislation legalising the act. This obviously questions if it would be in the best

interests of the UK to adopt similar provisions?

The penultimate chapter will examine the highly controversial issue of whether a right to

die should exist in the UK, including a meticulous comparison to issues arising in the

USA. The final seventh chapter will consider the main issues raised in the preceding

chapters and conclude with a discussion of any reforms that could be applicable to the

UK in this area of law.

Chapter Two:

Current Law /Literature Review

Every person has the right not to be handled by another person, as it constitutes as

assault for one person to touch another without their valid consent.2 The same basic

principles are true in Medical Law. There is no statute in UK law that applies to the

general principles of consent but case law has established that touching a patient

without valid consent may constitute the criminal offence of assault,3 unless in an

emergency where consent cannot be obtained.

Patient Autonomy:

The principle of autonomy is that each person has the right to have control over their

bodies, and that should not be intertered with in any way. With regards to medicine,

autonomy means that competent patients have the right to determine what procedures

and treatment they receive, and any infringement of this constitutes assault.4

In the very important case of Re T,5 Lord Donaldson quoted with approval the words of

Robins JA in the American case of Maletter v Shulman:s The right to determine what

shall be done with one's body is a fundamental right in our society. The concepts

inherent in this right are the bedrock upon which the principles of self-determination and

individual autonomy are based.'

Z Collins Dictionary of Law (2nd edn Harper Collins 2006) 29Assault is defined as: an act that causes another person to apprehend the infliction of immediate unlawfulforce on his person.'3 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439' Schloendorff v Society of New York Hospital, 211 NY 125, 105 N.E. 92 (1914), Justice Cardozo:

Every human being of adult years and sound mind has a right to determine what shall be done with hisown body; and a surgeon who performs an operation without his patient's consent commits an assault forwhich he is liable in damages.'5 Re T [1993] Fam 95, Lord Donaldson, 116-1176 Maletter v Shulman 1990 67 DLR (4 h) 321, 336

The significant decision in Re T:

The decision of Lord Donaldson in Re T' established the fundamental principle that

currently is the benchmark with regards to refusing medical treatment in the UK. His

Lordship stated that: An adult patient who... suffers from no mental incapacity has an

absolute right to choose whether to consent to medical treatment, to refuse it orto

choose'$ an alternative treatment.

The basic facts of Re T9 involve a pregnant woman who was injured in a car crash and

signed a form refusing a blood transfusion on religious grounds. After delivering a

stillborn her condition deteriorated and a court order was obtained authorising a blood

transfusion on the grounds that it was in the patient's best interests. The patient took this

case to the Court of Appeal arguing that, based on the principle established by Lord

Donaldson at the lower court, her rights were not adhered to and the treatment was

involuntary, therefore constituting medical assault.

The Court of Appeal held that T's mental state had deteriorated to such an extent that

she could not make a valid choice between death and transfusion, and in such a case a

refusal of treatment form would not be valid. Although the basic principle was

established in this case, the patient was deemed not to have been in a position to avail

of it. This highlights the importance of mental capacity in refusing treatment, which will

be discussed later.

Lord Donaldson provided a summary of the principle that he established that is now so

often referred to in this area of law. He laid it out in four propositions, one of which is

fundamental for the purpose of this study: 10 every adult has the right and capacity to

decide whether or not he will accept medical treatment, even if a refusal may risk

permanent injury to his health or even lead to premature death. Furthermore, it matters

not whether the reasons for the refusal were rational or irrational, unknown or even non-

existent...

~ Supra n. 5$ Supra n. 5, Lord Donaldson 1029 Supra n. 510 Supra n. 5, Lord Donaldson 115-116

!!

The authority of Re T was applied shortly after in the interesting circumstances of Re

C," where a 68 year old patient developed gangrene in his foot. On his admittance to a

hospital, a doctor prognosed that he had only a 15 per cent chance of survival if the

infected foot was not amputated, however C refused. The hospital questioned C's

capacity to exercise his autonomy in this way due to C having suffered from paranoid

schizophrenia. C sought a court injunction restraining the hospital from carrying out the

operation without his consent.

In his decision Thorpe J quoted with approval the dicta of Lord Donaldson in Re T and

held that C was entitled to refuse the treatment even if it resulted in his death. In relation

to the doubts regarding C's competence to refuse, Thorpe J submitted that when mental

capacity is raised, its sufficiency is to be determined by the answer to the question:12

Has the capacity of the patient been so reduced (by his chronic mental illness) that he

did not sufficiently understand the nature, purpose and effects of the proffered medical

treatment?13

This decision is considered extremely important because it was the first case in which

the right to refuse medical treatment was respected by the UK courts, and upheld the

fundamental principle established by Lord Donaldson.

Looking at the more recent case of B v NHS Hospital Trust,14 a patient with serious

physical disability sought a declaration that she possessed the necessary mental

capacity to refuse medical treatment. As a result of a blood vessel in her neck rupturing,

B had been left tetraplegic and in need of artificial respiration in order to sustain her life.

The trust had refused her request to turn off the ventilator.

Ultimately, the President of the Family Division, Dame Elizabeth Butler-Sloss, was called

to intervene on B's behalf. In herjudgement she reiterated the fundamental principles

established by Re T that govern this area of law,15 and the decision reached preserves

that Lord Donaldson's principle is still considered the standard practice.

" Re C [ 1994] 1 WLR 290'Z Ibid, Thorpe J 29513 JK Mason & GT Laurie, Mason &McCall Smith's Law and Medical Ethics (7`~ edn Oxford 2006) 375l4 B v NHS Hospital Trust [2002] 2 All ER 44915 Supra n.5, Lord Donaldson 102

5

Exceptions to Re T:

When establishing the fundamental principle,16 Lord Donaldson left open a possible

exception namely: the only possible qualification is a case in which the choice may lead

to the death of a viable foetus.' This possible qualification' was not fully tested until 1997,

when the case of Re MB" finally determined exactly the situation of a viable foetus'.

The Appeal Court held that:'$ a competent woman... may, for religious reasons, other

reasons, or for no reasons at all, choose not to have medical intervention, even

though... the consequence may be the death or serious handicap of the child she bears

or her own death.' Butler-Sloss continued, stating that the exception provided for by Lord

Donaldson's principle in Re T cannot stand and that all competent adult patients,

pregnant women included, could refuse treatment for any reason.

Due to the Re T19 rule applying to competent adults' a subsequent question is at what

age a patient is considered an adult? Such an answer is not clearly definitive. In law, a

child or minor is a person who has not yet attained the age of 18 years; although statute

law provides that a person aged 16 may give consent to treatment in the same way as

an adult.20

However, some year's later common law expanded the general consent rule provided for

by the Family Reform Act. In the case of Gillick v West Norfolk and Wisbech Area Health

Authority21 the House of Lords gave guidance on what consent can be given by children:

`I would hold that as a matter of law the parental right to determine whether or not their

minor child below the age of 16 will have medical treatment terminates if and when the

child achieves a sufficient understanding and intelligence to enable him or her to

understand fully what is proposed.'22

16 Supra n.5, Lord Donaldson 102~~ Re MB (1997) 38 BMLR 175'$ Ibid, Butler-Sloss 19319 Supra n.5, Lord Donaldson 10220 Family Reform Act 1969, s 8 /Age of Majority (Northern Ireland) Act 1969, s 4(1)The consent of a minor who has attained the age of siacteen years to any surgical, medical or dentaltreatment ... shall be as effective as it would be if he were of full age'21 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112zZ Ibid, Lord Scarman 188 & 189

Therefore, according to the House of Lords who agreed with Lord Scarman's

recommendation, achild under the age of 16 can dictate whether they receive treatment

provided they fully comprehend the situation, and in this case they would be considered

`Gillick competent.' This ruling was subsequently confirmed in the Children Act 1989

which provided statutory power to mature minors under the age of 16 to consent to

treatment.23

In relation to the difference between consenting to treatment and refusing treatment, the

courts have found there is a difference as refusal did not carry the same weight as

agreement.24 The case of Gillick and the s 8 of the Children's Act apply to situations

where a minor can consent to medical treatment. However, they do not expressly state

what will happen if a child chose to refuse medical treatment?

The exact position of where minors stood in relation to refusing treatment was not

clarified until the decision in Re W.25 Here a 16 year old girl suffered from anorexic

nervosa, and her aunt made an application to authorise treatment against this girls

wishes. The extent to which minors could consent to medical treatment was dealt with

under common law in Gillick26 and by statute under s 8 of the 1989 Act.Z'

However, the circumstances in the present case differed in that this girl refused

treatment recommended by doctors in her best interests. The court held that while

parental consent could not override a consent lawfully provided under s8 or Gillick; it

could override the refusal of such a minor to undergo treatment. Treatment of this girl

was authorised; showing that when a child who fulfils the Gillick competence refuses

treatment it will still be authorised if deemed in the child's best interests and there is

parental agreement.

As stated above, the basic rule is that adults who suffer from no mental incapacity have

the right to refuse treatment.za What amounts to mental incapacity varies in many cases,

23 Children's Act 1989, s 824 Re R [ 1992] Fam 1125

Re W [1992] 4 All ER 62726 Supra n. 21Z~ Supra n. 23; which attributed consent to medical treatment given by a 16 or 17 year old to be the samelegal effect as that provided by someone of full age'Z$ Supra n. 5

7

and it is never a straightforward matter. Butler-Sloss establish there is initially a

presumption of mental capacity;29 it is when questions of incapacity arise that is more

problematic.3o

Doctor's Role:

A basic concept is that a doctor's responsibility is to his patients' well-being, and

generally a promise to treat them to the best of the physicians' ability. The Hippocratic

Oath is a pledge doctos take upon induction. Opponents to withholding or withdrawing

treatment usually argue the portion of the oath that states:31 `I will never give a deadly

drug to anybody if asked for it, nor will I make a suggestion to this effect.'

However, due to this oath having been created in the fourth century BC, it is sometimes

looked upon as outdated, and in the present day immaterial. Although, another more

general version of this argument emphasizes the centrality of healing in defining who

physicians are and what they do in their profession, and it is fundamentally contradictory

for a physician to allow treatment to be withheld that can improve a patients health.32

In conclusion, the current law recognises a fundamental right to refuse treatment. This

has been upheld by all subsequent cases. Subsequent chapters examine methods that

extend from this basic right; and as will be shown, not all of these methods are

satisfactory.

29 Supra n. 17, Butler-Sloss 436Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and untilthat presumption is rebutted.'3o The Mental Capacity Act 2005 sets out a test assessing whether a person lacks capacity to take aparticular decision at a particular time. The purpose of this Act and the different categories of capacityexamined are beyond the scope of this study. However, some different aspects of the Act, e.g. AdvanceDecisions, will be looked at.For the purpose of this study Butler-Sloss' presumption of mental capacity will suffice.31 <http://www.bbc.co.uk/dna/h2~2/A1103798> accessed 03 March 20083z D Orentlicher, Treatment designed to bring on death, by definition, does not heal and is thereforefundamentally inconsistent with the physician's role in the patient-physician relationship', (1989) 262JAMA 1844

Chapter Three:

Advance Decisions

The first instrument in which patients can apply their right to refuse treatment is through

an advance decision. These apply where a person wishes to control the medical

treatment he may receive at a time in the future when he might lack the capacity to

consent to or refuse this treatment for himself. The Mental Capacity Act 2005 clearly

identifies what constitutes as an advance directive.33

Basically, a person can dictate that, if in the future they are in a position where they will

not have sufficient capacity to refuse treatment for themselves, by creating an advance

decision' they can ensure that treatment is not performed. The Act, which came into

operation in April 2007, puts onto a statutory footing the pre-existing case law on

advance directives and living wills, which were the common law mechanism in which

patients could say, sometimes years in advance, how they wish to be treated if they

become incapacitated and lose the ability to speak for themselves.34 There had been a

number of court cases, some of them of a high profile nature,35 in which the courts had

upheld patients' decisions to refuse life-sustaining treatment.

In order to have a valid advance decision which refuses life-sustaining treatment; it

would need to be in writing, be signed and witnessed, and include an express statement

that the decision stands even if life is at risk.i36 A common example of when advance

decisions are used in practice is by Jehovah's Witnesses who, for religious reasons,

33 Supra n30, s 24(1)"Advance Decision means a decision made by a person, after he has reached 18 and when he has capacityto do so, that if-

(a) at a later time in such circumstances as he may specify, a specified treatment is proposed to becarried out or continued by a person providing health care for him, and

(b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment,the specified treatment is not to be carried out or continued."34 Supra n. 2, at 15Definition of Advance Directive: to provide for a situation in which he might himself be unable tocommunicate'3s Airedale NHS Trust v Bland [1993] 1 All ER 82136 Supra n. 30, s 25(5)

0

would carry an advance decision card with them at all times refusing blood transfusions,

even in life-threatening situations.37

Criticisms:

Above is a summary of the current legal position of advance decisions. There has been

criticism of their approach as a means of people expanding their right to self-

determination to a hypothetical situation that may never arise. The legal opinion of Carl

Elliott is that advance decisions are ambiguous because: People do not always mean

what they say; they do not always say what they want; and they do not always want

what they say they want.i38

Elliott is basically of the opinion that people make these declaration about how they wish

to be treated if their mental capacity deteriorates, but are not always fully aware of the

consequences of these actions.

In addition, the Mental Capacity Act allows that a person may withdraw or alter an

Advance Decision at any time when he has capacity to do so,i39 meaning that if they

were to change their mind in the future, and wanted to have the treatment should such a

need arise, then they can easily do this by withdrawing or altering their advance decision.

However, there is no mention of the possibility of a person changing his mind but being

unable to express it. For example a person being brought to hospital in a state in which

they cannot communicate, but wanting to have whatever treatment necessary to

preserve life, although contrary to the advance decision in place. Who knows how

people will really feel when actually in alife-threatening position, facing death?

Consider the facts of the Re T case, 40 where a woman was involved in a car crash and

upon arriving at hospital she refused medical treatment. The Court of Appeal held that

because of the car crash she did not possess the capacity to make such an important

decision and the treatment was performed against her wishes. Now in the alternative

37 <http://www.bbc.co.uk/reli~ion/relieions/witnesses/witnessethics/ethics 2.shtm]> assessed 10 March200838 Carl Elliott, Advance Directives: Expectations, Experience and Future Practice', (1993) 4(1) Journal ofClinical Ethics 61, at 6139 Supra n. 30, s 24(3)40 Supra n. 5

10

consider if a 19 year old girl was involved in a car accident, but had in place a valid

advance decision which refused life-sustaining treatment. Upon arriving at the hospital

she verbally requested for the advance decision to be negated; however because of the

car accident she was deemed not to have the capacity to withdraw from or reject it.

Basically, similar to the woman in Re T, this girl was deemed not to possess the

competence to withdraw from or alter the advance decision. Would the doctor in this

case be required to refuse to treat this patient due to the advance decision being in

place? Surely that would not be the case, and this example highlights the difficulty and

uncertainty of advance decisions.

A further criticism that arises is: what if new treatment became available to treat an

ailment that was usually attributable to pain and suffering? The patient would be

subjected to their advance decision, but it would be uncertain if the patient would have

created the directive had they known about future progress in the medical field.

An illustration of this occurred very recently when a 60-year-old man in Taiwan was kept

alive for 16 days without a heart after the organ was removed because of a serious

bacterial infection.41 Doctors continued life-sustaining treatment by circulating the blood

around the body by a machine in the hope that a matching heart would become

available. A heart eventually did become available and the transplant was performed

successful, in the meantime setting a new record for the length of time without a heart.

There is no reason now why this man cannot live a normal life for his remaining years.

This example shows that with current advances in technology, patients can be kept alive

longer and life can be prolonged, with the end result a return to a normal life. It raises the

question why there is such emphasis on this fundamental right to refuse treatment? The

right to receive treatment should be highlighted and encouraged in the light of Chen Chi-

chung's miraculous recovery.42

41 <http://www.dailyrecord.co.uk/news/uk-world-news/2008/04/05/transplant-man-lives-for-l6-days-without-heart-86908-20372892/> accessed OS April 20084Z Ibid

11

Lasting Power of Attorney:

The only advantages to advance decisions', apart from the preservation of the right to

self-determination, is that it may relieve the donor's next-of-kin or other relative of the

possibly difficult task of deciding whether to treat, or withhold treatment. However, surely

allocating anext-of-kin this responsibility would be in the patient's best interests?

An appointed party could effectively consider all the circumstances if such a position

ever arose where the patient was incompetent. Judging by the patient's illness, their pain

and suffering, and the proposed treatment, they would surely be in the best position to

decide what would be the best method of action.

This approach can be achieved under a Lasting Power of Attorney (LPA), which is

provided for under the Mental Capacity Act 2005: Code of Practice.43 Under a LPA a

person can delegate to a chosen attorney all decision making relating to their personal

welfare, insofar as they lack the capacity to make such decisions, and these decisions

can include whether to receive life-sustaining treatment.

A LPA must be made while the donor is of sound mind and can relate to any decisions

about the donor's healthcare and welfare, or can be limited to specific decisions, e.g.

when they are in alife-threatening situation. The attorney can only make decisions that

are in the donor's best interests. LPA is potentially much broader in scope than an

advance decision as not only does it relate to medical treatment, but also such questions

as where to live, who you are to see and your diet.

Euthanasia Directives:

A worrying extension from advance decisions would be the creation of euthanasia

directives', which would provide a donor with the right to choose euthanasia for a time in

the future when they were in a terminal position and lacked the capacity to choose

euthanasia for themselves. In the Netherlands, the Termination of Life on Request and

43 Supra n. 30, Code of Practice, p4"Chapter 7 shows how people who wish to plan ahead for the possibility that they might lack the capacityto make their particular decisions for themselves in the future are able to grant Lasting Power of Attorney(CPAs) to named individuals to make certain decisions on their behalf, and how attorneys appointed underan LPA should act."<http://www.opsi.Cov.uk/acts/acts2005/related/ukp~acop 20050009 en.pdf> accessed 29 March 2008

12

Assisted Suicide Act44 introduced the means to create a euthanasia directive', where

patients can choose for their lives to be terminated if certain circumstances manifest

themselves, while it is also possible to arrange other requests for euthanasia just in

case'. The Act recognises both as a legitimate request for euthanasia.a5

The difference between an advance directive and a euthanasia directive would be that in

the latter a deadly dose would be administered once the directive has been presented

for the patient. In the former treatment would be withheld and death would be incurred

slowly, possibly by withholding nutrition so the patient died of starvation. Based on these

facts the former would seem like the more humane option, as it reduces patient suffering

and induces the approaching death quickly, although this is not in any sense endorsed in

the UK.

While the Mental Capacity Act was being introduced to Parliament through the legislative

process, certain high ranking members were hesitant about the legal backing of advance

decisions, due to fears that it would allow euthanasia by the backdoor.i46 lain Duncan

Smith, the former Tory leader, and Labour MP Claire Curtis-Thomas were leading a

campaign to limit the extent of the Mental Capacity Act by stopping all nutrition and

hydration being withdrawn from patients, as they claim that it would enable doctors to

legally starve their patients to death.47

This argument leads to the concept of termination of life, and by refusing treatment,

which incurs death; does this basically achieve euthanasia in an altered manner?

44 Termination of Life on Request and Assisted Suicide (Review Procedures) Act 200245 Euthanasia: the Netherlands: new rules' p4 <http://bestel.postbus51.n1/content/pdf/16BR2002G009.pdfl accessed O1 March 200846 C Brown, Euthanasia fears force a rethink over the right to refuse treatment', Independent, Saturday, 11December 2004<http://www. independant.co.uk/news/uk/politi cs/euthanasia-fears-force-a-rethink-over-the-right-to-refuse-treatment-683415.htm1> accessed 02 March 200847 Ibid

13

Chapter Four:

Euthanasia

The legal position in the UK is that a person who intentionally kills another person has

committed the criminal offence of murder currently carrying a mandatory life sentence.48

This definition of murder applies regardless of whether the person requested to be killed

or not. When a patient is killed at their own request this usually falls into a category

called euthanasia.49 A primary question addressed here will be: is allowing patients the

right to refuse treatment in life-threatening situations basically legalising euthanasia?

There has been much confusion over the terms euthanasia' and withholding

treatment',50 but the simplest distinction that can be made is that euthanasia involves an

active intervention to end life, whereas withholding of treatment means not attempting to

prolong life and passively letting the patient die.

Different Forms of Euthanasia:

There are two forms of euthanasia contrasting from the acts of the facilitator, with

severely different consequences of each act. Intervening to end ones life is considered

an offence known as active euthanasia and this usually carries a murder charge;

whereas passive euthanasia, i.e. letting the patient die by their refusal of treatment, is

widely carried out and generally judged to be acceptable.

There is clearly a difference between active and passive euthanasia beyond their

punishment; active euthanasia occurs where the second party deliberately does

something (an act) that causes the patient to die, e.g. administering a lethal injection.

Under passive euthanasia the patient dies because the medical professional either

doesn't do something (an omission) necessary to keep them alive, or removes life-

sustaining treatment already in place.

48 Collins Essential Dictionsry &Thesaurus (15 edn Harper Collins 2004) 536-537Definition of murder: intentional killing of a human being'49 Black's Law Dictionary, (8~ edn Thompson West 1999) 594Euthanasia is defined as: The act or practice of killing or bringing about the death of a person who suffersfrom an incurable disease or condition, especially a painful one, for reasons of mercy.'so V Machin, Churchill's Medicolegal Pocketbook, (lst edn Churchill Livingstone 2003) 160

14

Currently all forms of active euthanasia are prohibited in the UK,51 however supporters

for the relaxation of the law typically stress that they are campaigning only for voluntary

active euthanasia to be legalised, as opposed to non-voluntary or involuntary

euthanasia.52

Voluntary Active Euthanasia (VAE) is where the competent patient has requested for

euthanasia to be performed. This is in contrast to non-voluntary euthanasia, that is,

euthanasia performed on those who do not have the mental ability to request euthanasia,

e.g. babies, adults with advanced dementia. Finally, euthanasia performed against the

wishes of the patient is referred to as involuntary euthanasia.53

The Prohibition of Passive Euthanasia:

It is currently the law in the UK, as stated above, that a terminally ill patient who fulfils

the Re T criteria54 can refuse medical treatment, including feeding intravenously.

Effectively the law permits the patient to choose to die by the doctors withholding /

withdrawing treatment, which can be drawn out and painful with an approaching death,

thereby achieving passive euthanasia.

Alternatively, giving a patient who wanted to die a lethal dose to ease their pain quickly

and induce death is illegal, as this would constitute as active euthanasia and result in

murder charges. It would seem the more humane option would be to legalise a swift,

painless death; as opposed to a drawn out ending?

It is not the purpose of this study to determine that active euthanasia is a better option

than passive euthanasia; but simply to illustrate that the withholding or withdrawal of

treatment should be prohibited, even in situations when the patient consents, as drawn

out death should not be the acceptable course of action. It almost seems barbaric to

allow this to happen considering people wouldn't treat their animals in this way. If a farm

animal became sick the farmer would have this animal put down, not let it linger in pain

until it naturally died.

51 R v Cox [1992] 12 BMLR 38SZ 7 Keown, Euthanasia Ethics and Public Policy, (1S` edn Cambridge 2002) 9s3 Supra n. 49, at 59454 Supra n. 5, Lord Donaldson 102

15

Yet if a human was being kept alive by a breathing machine and intravenous feeding

and a decision was reached to end this life, it would be achieved by withdrawing the

feeding apparatus, thereby leaving the patient to starve to death, as in the case of Tony

Bland.5s

Again, would it not be the more humane option to legalise a swift, painless death, as

opposed to a drawn out ending filled with suffering? These two alternative methods of

ending ones life were considered in the Bland case by Lord Goff, where he submitted

that the distinction could be viewed as hypocrisy.5s

Lord Goff then raises an excellent question, the asking of which constitutes a major area

of this study:s' `Why is it that the doctor who gives his patient a lethal injection which kills

him commits an unlawful act and indeed is guilty of murder; whereas a doctor who, by

discontinuing life support, allows his patient to die, may not act unlawfully -and will not

do so, if he commits no breach of duty to his patient?' Basically Goff questions: why is

giving a patient a lethal injection is murder, while withholding treatment which results in

death is generally considered legal?

In response to this question the court recalled the words of Glanville Williams,58 where

he expressed the view that death caused by a doctor withdrawing treatment is in

substance not an act but an omission to struggle,' and that the omission is not a breach

of duty by the doctor, because he is not obliged to continue in a hopeless case.'S9

The court seems to distinguish responsibility on the basis of the act /omission debate.

The Law Lords held that the doctor would not commit homicide because that offence

ss Supra n. 35; this high-profile case concerned Tony Bland, the 21 year old man who, at 17, had fallen intothe condition known as permanent vegetative state (PVS) following the Hillsborough disaster. Tony'sparents and his doctor wanted to stop the tube-feeding. The Airedale NHS Trust, which ran the hospital,applied to the High Court for a declaration that it would be lawful to stop the tube-feeding. Their Lordshipsagreed in withdrawing the life-sustaining treatment, intending the death of Tony.sb Supra n. 35, Lord Goff 865It is true that the drawing of this distinction may lead to a charge of hypocrisy, because it can be askedwhy, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should notbe lawful to put him out of his misery straight away, in a more human manner, by a lethal injection, ratherthan let him linger on in pain until he dies.'57 Supra n. 35, Lord Goff 86658 G Williams, Textbook of Criminal Law (2nd edn Stevens &Sons 1983) 28259 Supra n35, Lord Goff 866

16

normally requires an act not an omission, and since the doctor would not be killing Tony

but simply letting him die as a result of his pre-existing medical condition. The Law Lords

acknowledged that in withdrawing treatment there was an intention to kill' Tony,60 but

because it was an omission as opposed to an act it would be considered legitimate. If

what characterises euthanasia is an intention to kill, it surely makes no moral difference

if the doctor carries out that intention by an omission rather than an acts'

By analogy, if a father were to drown his baby by pushing her head under the bathwater,

we would regard this as a clear case of intentional killing and condemn the fathers

conduct as murder. So too, surely, if the baby accidentally slipped and her head was

submerged under the water and her father deliberately failed to save her with the

intention that she should drown, we would hardly excuse the father because he

deliberately killed his baby by an omission rather than an act.

Also the court relied on Glanville Williams's assertion that they are not obliged to

continue in a hopeless case' such as PVS as with Tony Bland.62 The court seems to

consider it legitimate that the best option is to withhold life-sustaining treatment to incur

death, while inducing death quickly is considered illegal.

However, no such option seems reasonable when the patient is in a more promising

position, as opposed toa hopeless case'. For example, if a patient refused life-saving

treatment that they would easily have been expected to recover from, what answer

would be available to Lord Goff's question?s3

Consider the case used as the catalyst for this study: where Emma Gough died as a

result of refusing a blood transfusion.64 Emma would obviously not fall within Glanville

Williams hopeless case' categorisation of patients. She was a young woman who, if she

had received the transfusion, would reasonable have been expected to recover and live

a normal life. What reasoning can be given here for the doctor not being responsible for

bo Supra n35, Lord Mustill 89561 Supra n. 52, at 1462 Supra n. 35, Lord Goff 86663 Supra n. 35, Lord Goff 868ba Supra n. 1

17

her death by not treating this patient? Except, of course, for the patients fundamental

right to self-determination, and the capacity to refuse treatment!

Again, the above argument is not attempting to establish that active euthanasia is lawful

and should be the preferable means, but merely attempting to demonstrate passive

euthanasia is in no way a better option. This right for allowing patients to construct their

own death by refusing necessary treatment is immoral and contrary to common sense,

and therefore should be illegal. Later chapters will consider that in exceptional

circumstances65 there should be exceptions to this new rule, but for the most part, and

particularly in cases such as Emma Gough's, this method should be abolished.

As a result of the Bland judgement passive euthanasia is widely practiced and rarely

deemed immoral, yet its consequences can be judged as more detrimental than those

associated with active euthanasia.

From determining the different forms of euthanasia, although alternative positions have

been established by law, one might raise the question is there really an ethical difference

between them? The view expressed in the Bland casess was that there is no relevant

moral distinction between lawful withholding and withdrawal of treatment, on the one

hand, and euthanasia on the others'

Their Lordships upheld the declaration sough to withdraw treatment on Tony Bland

solely on the basis of the act /omission distinction, even though this would appear to

some irrational'68 and would only emphasise the distortions of a legal structure which is

both morally and intellectually misshapen',69 however it is the position recognised by law

nonetheless. Although the House of Lords did not administer any change to the law by

way of judicial precedent, they were clearly expressing a view that the current position

distinguishing withdrawing treatment and euthanasia is unclear and in need of some

reform.

bs pretty v UK [2002] 35 EHRR 166 Supra n. 3567 A McGee, Finding a way through the ethical maze: withdrawal of medical treatment and euthanasia',(2005) Medical Law Review 357, at 38268 Supra n. 35, Lord Browne-Wilkinson 88569 Supra n. 35, Lord Mustill 887

18

Should Voluntary Active Euthanasia be legalised?

In the light of this decision in Bland, academic writers have highlighted flaws in the

current legal system and the need for changes. However, critics such as Andrew McGee

interpret these changes needed as a step toward legalising euthanasia, as opposed to

abolishing the right to refuse /withdraw from treatment.70

This is an approach which should be avoided. Legalising euthanasia would have several

bad consequences. It would not only reduce respect for human life, but could also lead

to the vulnerable feeling pressured into requesting death."

Patients in a state of permanent unconsciousness similar to Tony Bland are not the only

individuals to have been adversely affected by this judgement. Gradually it has been

extended to cover other patients. In June 1999 the British Medical Association published

guidance on Withholding and Withdrawing Life-prolonging Medical Treatment' in which

they considered it appropriate to withdraw tube feeding from patients with other medical

conditions.72

Unsatisfied with these provisions, a case raised by Burke challenged the validity of this

document. 73 The plaintiff sought a declaration that this guidance offered to doctors by

the defendant GMC in respect of the withholding and withdrawal of life prolonging

treatments, including artificial nutrition and hydration, was incompatible with human

rights under both domestic law and the European Convention on Human Rights.74 The

court originally decided that the European Convention on Human Rights had been

violated.

'0 Supra n. 67, at 357~ ~ This fear was borne out of the opinion polls published at the time of Lord Joffe's Assisted Dying Bill inMay 2006, which showed that 65% of people agreed that if the law changed vulnerable people could feelunder pressure to opt for suicide' <htt~://www.doctorsfed.or~.uk/index2.php?option=com_content&do ndf=1&id=300> accessed 22 March20087z V English, Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for Decision-making', (1999) Wiley Blackwell73 R (Burke) v General Medical Council [2005] 2 WLR 43174 European Convention on Human Rights

19

Although this decision was later overturned, it marked a distinctive movement by judges

to restrict the withdrawal of treatment' scope, and that fundamental human rights were

of the utmost importance and should be respected at all costs.

Basically, the above arguments show that by allowing life-sustaining treatment to be

withheld it is dangerously close to legalising euthanasia. The decision in Bland

authorising passive euthanasia opened the gates for the arguments to follow the

Netherlands and fully legalise active euthanasia.75 But the BMA has repeatedly declared

that this is not a step that will be taken.76 The guidelines provided by the BMA on

withdrawing treatment have also proved to be unsatisfactory," with the sanctity of

human life prevailing over right to refuse treatment.

While the arguments tend to suggest that VAE should not be legalised in the UK; it also

highlights the unethical and immoral stance involved in passive euthanasia, and how

readily it can be achieved with the continuance of the right to refuse treatment. It seems

the best approach to redeem these short fallings is for a blanket prohibition on refusing

medical treatment, except in exceptional circumstances.'$

If euthanasia and the right to refuse treatment were to be completely abolished in the UK

then there would be no remedy for people like Tony Bland and Diane Pretty. The best

way to provide such a devise may be through a mechanism known as physician-assisted

suicide.

75 Supra n. 4476 The BMA has opposed any change in the current LTK legislation which prohibits euthanasia:<http://www.bma.or_~ uk/ap.nsf/Content/Euthanasia~hysicianassistedsuicide> accessed 07 April 2008~~ Supra n. 73~$ This will be discussed in later chapter on reform proposals.

20

Chapter Five:

Physician-Assisted Suicide

Originally looked upon as a serious crime, suicide is no longer an offence. In 1961 the

UK Government passed the Suicide Act which decriminalised suicide, but at the same

time enacting that:79 A person who aids, abets, counsels or procures the suicide of

another, or an attempt of another to commit suicide, shall be liable on conviction to

imprisonment for a term not exceeding fourteen years.'

Like its counterpart in England and Wales, the Criminal Justice (NI) Act 196680

abrogated suicide in Northern Ireland, while also specifically retaining the offence of

complicity in the suicide of another. Those who do assist another to commit suicide are

usually prosecuted on a charge of manslaughter. Assisted suicide has been defined

as:$' `the intentional act of providing a person with the medical means or the medical

knowledge to commit suicide- (when a doctor provides the means) physician-assisted

suicide.'

Difference between PAS and VAE:

In order to determine the legal status of PAS it is important to address the question: what

is the difference between a physician killing a patient with his consent, and assisting his

suicide? The obvious difference is that in killing a patient an act is performed by the

physician which ultimately kills the person. If the patient requested this then it would

amount to VAE, which carries with it a potential murder charge. Assisting in the suicide

of a patient involves either procuring or wilfully contributing to the act, but can also

extend to advising about methods of suicide,82 and a conviction carries with it a potential

14 years imprisonment.

Two contrasting examples highlight the difference; a physician administering a lethal

dose to a patient at their request would commit VAE, while supplying the patient with the

79 Suicide Act 1961, s 2(1)80 Criminal Justice (Northern Ireland) Act 1966$~ Supra n. 49, at 147582 AG v Able [ 1984] 1 All ER 277

21

syringe again at their request would amount to a charge of PAS, and as seen in the Able

case this can be whether the patient kills themselves or not.83

While the former is murder and should be prohibited at all costs, some feel that the latter

is a measure of pain relief which in certain circumstances should be allowed.84 One

could argue for the legalisation of PAS because suicide itself has been abrogated since

1961, and therefore merely supplying a patient with the mechanisms for an activity that

they could freely have executed themselves if in a fitter state is no more a crime.85 While

this simplistic view would obviously not find agreement with everyone, the points which

legal commentators raise are highly persuasive.

Benefits to Physician-Assisted Suicide:

An American commentator wrote an intriguing article on PAS where he lays out the

arguments for and against its legalisation, before arriving at the rationale that the legal

restrictions on assisted suicide should be lifted only for physicians.i86 In continuance

Wier stated that he is convinced that PAS is sometimes necessary...and that it is, in at

least some instances, justifiable as the right and compassionate thing to do.' He reached

this conclusion based on his arguments for the legalisation of PAS, relying strongly on

the aspect of relieving patient suffering.

In addition, Wier set guidelines for how such changes to the legislation could be

introduced, indicating that the physician should determine that assisted suicide is a

moral last resort, in the sense that there are no effective medical options available that

are acceptable to the patient, no medical treatment is available that will reverse or cure

the patients condition, no life-sustaining treatment is being used that could be abated at

the patients request, and no intervention seems to provide the relief and release the

patient desperately seeks.'$'

83 Ibid84 R Weir, The Morality ofPhysician-Assisted Suicide' (1992) 20 Law, Medicine &Health Care 116

85 Dame B Hale, A Pretty Pass: When is there a Right to Die?' (2003) 3 Clinical Medicine 142, at 145

86 Supra n. 84$' I Kennedy & A Grubb, Medical Law (3 d edn Butterworths London 2000) 1925

22

Campaigners for the legalisation PAS argue that the difference between PAS and VAE

is morally, and should also be legally, significant.$$ In PAS it is the patient who makes

the final decision and performs the fatal act, whereas in VAE it is the doctor who decides

whether the patient's life should be ended and who ends it. In addition, PAS allows time

for the patient to change his or her mind, unlike VAE. It can therefore be argued that

PAS is an extension of the patients autonomy, their right to self-determination, and

should accordingly be legalised.

However in 1994 the House of Lords' Select Committee rather dismissively rejected all

calls for reform:89 As far as assisted suicide is concerned, we see no reason to

recommend any change in the law. We identify no circumstances in which assisted

suicide should be permitted...

The strong arguments in favour of PAS as shown by Wier and Keown highlight the

benefits that can be achieved through granting a patient the ability to end their life,

however some remain dubious, including the House of Lords,90 about the legalisation of

PAS because by allowing a patient to determine their death in one situation, this can

lead to the liberalisation of further death determining' situations, e.g. VAE. Although

moral issues can favour PAS critics clearly feel that the system could easily be abused if

PAS were legalised:91 `the problem was that if assisted suicide were permitted by the

state, this would endanger the lives of the elderly and the vulnerable.' Obviously if PAS

were to be legalised the patient would need to fulfil a strict criteria in order to ensure it is

not abused.92

A striking example of how PAS is achieved is by looking at the bizarre activities of Dr

Jack Kevorkian,93 who claims to have assisted at least 130 patients to end their lives.

These actions were considered deplorable by physicians, ethicists, and attorneys in

$$ J Keown, Euthanasia, Ethics and Public Policy: An Argument Against Legilisation,' (2002) Cambridge3289 House of Lords' Select Committee, Report of the Select Committee on Medical Ethics, HL Paper 21,1993-1994, Assisted Suicide 26290 Ibid91 D Morns, Assisted suicide under the European Convention on Human Rights: a critique,' (2003)European Human Rights Law Review 65-91, 7992 Again recommendations for reform and the strict circumstances are discussed below.93 people v Kevorkian 447 Mich 436; 527 NW2d 714 (1994)

23

health law.94 However, it was not dueto the concept of physician-assisted suicide itself,

but because Dr Kevorkian achieved these with the use of his suicide machine.'

In general doctors do not regard PAS as deplorable, in fact many have commented that

PAS is ethical is many situations.95 An example of this occurred in New York in 1991,

where Dr Timothy Quill published a detailed account of the suicide of one of his patients

who suffered from acute myelomonocytic leukaemia who requested and received Quill's

assistance in killing herself with an overdose of barbiturates. Some of the professionals

in medicine, ethics, and law interviewed by the media judged Dr Quill's action to have

been morally acceptable, even if against the law in New York.' 96

Jurisdictions for legalising Physician-Assisted Suicide:

In order to fully comprehend the situation of PAS a look at jurisdictions different to the

UK is necessary to understand their reasoning for contrasting laws and any advantages

that they offer. In the Netherlands euthanasia and PAS are still criminal acts, but a Bill97

which entered into force in 2002 means that a physician who helps a patient to die will

be exempt from punishment, provided he complies with the following two conditions:

(1) he must practice due care, and

(2) he must report the cause of death as euthanasia to the Coroner.98

The due care' requirements include the request being voluntary and well-considered,

the patient being in a terminal condition with unbearable pain, and at least one other

doctor must agree.

94 Supra n. 849s An online survey complied by the Voluntary Euthanasia Society in 2004 found that 56% of 1,000 doctorssurveyed were in favour of regulated physician-assisted suicide.<http://news.bbc.co.uk/1/hi/health/3759544.stm> accessed O1 Apri1200896 Supra n. 8497 Supra n. 44, Article 2:"The requirements of due care... mean that the physician:(a) holds the conviction that the request by the patient was voluntary and well-considered,(b) holds the conviction that the patients suffering was lasting and unbearable,(c) has informed the patient about the situation he was in and about his prospects,(d) and the patient hold the conviction that there was no other reasonable solution for the situation he

was in,(e) has consulted at least one other independent physician who has seen the patient and has given his

written opinion on the requirements of due care..."98 In accordance with the Burial and Cremation Act 1991

24

In 1994 the American State of Oregon became one of the first jurisdictions to legalise

PAS when it passed the Death with Dignity Act.99 This allows doctors to prescribe but

not administer lethal drugs to competent patients with less than 6 months left to live.

Both PAS and VAE are illegal in the UK and Bills proposing reforms have not been

adopted by Parliament.'oo The case of R v Cox'o' highlights the current UK position as a

doctor was convicted of attempted murder for giving a lethal dose of potassium chloride

with consent to a patient with intractable pain who said she wanted to die.

However, had this patient been situated in the Netherlands, or the American state of

Oregon after these pieces of legislation were introduced, then it is likely based on the

patient's pain that this act of PAS would have been deemed legal. What would Dr. Cox's

alternative option have been in this situation? Leave the patient to suffer and defy their

wishes? Although taking the law into his own hands should never be considered the

correct method; if provisions were introduced where it was allowable in exceptional

circumstances then it could be ascertained what course of action is the best.

The right to refuse necessary treatment should be abolished, and in its place PAS

should be available as an option when certain criteria are satisfied, for example the due

care' and 6 months to live' factor within the Netherlands and Oregon legislation

respectively.

If certain measures of the Oregon legislation were adopted into the UK, and assisted

suicide were to be legalised in certain circumstances, only help provided by medically

qualified persons could be lawful;102 the danger of allowing non-medically qualified

persons to assist in suicides is all too obvious: lacking technical knowledge on matters

99 Death with Dignity Act 1994, s 2:"Who may initiate a written request for medication:(1) An adult patient who is capable, is a resident of Oregon, and has been determined by the attendingphysician and consulting physician to be suffering from a terminal disease, and who has voluntarilyexpressed his or her wish to die, may make a written request for medication for the purpose of ending his orher life in a humane and dignified manner..."ioo Lord Joffe's Assisted Dying for the Terminally Ill Bill [HL], accessed at<http://www.publications.parliament.uk/pa/Id200506/ldbills/036/06036.i.html> on 29/03/08X01 Supra n. 51X02 Supra n. 91, at 91

25

such as quantity and effect of drugs, the person assisting may well do more harm than

good.'o3

In conclusion, as the above arguments demonstrate, PAS should be legalised in the UK

for the purpose of pain relief, but only when all other methods of relief have been

exhausted. Would this be solely a method of pain relief and a last resort for anguished

patients,'oa or would it confer on individuals a right to die?

'03 A point which was acknowledged by Lady Justice Hale at the Fison Memorial Lecture at Guy's, King'sand St Thomas' School of Medicine, October 24, 2002.g oa Supra n. 48, at 283Euthanasia is defined as a method which will relieve suffering'

26

Chapter Six:

The Riaht to Die

The right to self-determination is in the strongest position today than it has ever been.

People are being granted more and more rights that have never been actively available

to them before.105 The act of suicide has been abrogated since 1961,'os and the Re T

case107 provided the right to refuse medical treatment; therefore could it be argued that

these confer on individuals a right to die?'os

Does a Right to Die exist?

Baroness Hale has argued that a right to die already exists, because a person can kill

himself actively or refuse lifesaving treatment.109 However, not all commentators agree

with this simplification of the right to die. Keown argued that refusals of treatment for

suicidal reasons ought to be distinguished from refusals of excessively burdensome

treatment.10 He notes that the decimalisation of suicide did not mark the endorsement of

a right to commit suicide, as assistance in suicide remained prohibited as evidence of

the laws firm opposition to the practice.

The courts currently follow the legal precedent that there is no right to die."' Since

Parliament seems unwilling to adopt legislation permitting either VAE or PAS for.

terminally ill patients,12 commentators have resorted to making arguments under the

existing law to claim a right to help with the hastening of death.13

p os For example, in addition to the European Convention on Human Rights being incorporated intoNorthern Ireland in 2000 with the Northern Ireland Act 1998, currently discussions and advances mean thatthere could shortly be a Bill of Rights for Northern Ireland.y ob Supra n. 79, s 1~o~ Supra n. 5108 Supra n. 85, at 145109 Supra n. 85, at 145' ~0 J Keown, European Court of Human Rights: Death in Strasbourg-assisted suicide, the Pretty case, andthe European Convention on Human Rights' (2003) 1 International Journal of Constitutional Law 722, 728~ ~ ~ Supra n. 65' 12 Supra n. 8913 Supra n. 91, at 78; Dan Monis has argued that the right to die should be respected under Article 8ECHR, the right to respect for private life

27

Understandably, the courts have been reluctant to accept such arguments; insisting that

it is for Parliament to enshrine such a change in the law.14 However the judicial dicta set

by Munby J in the Burke case15 appeared to make the situation less clear by affirming

that the European Convention on Human Rights affords citizens in the UK with the

enforceable right to die with dignity.' Although this judgement was subsequently

overruled by the Court of Appeal, some commentators believe the reasoning upon which

Mundy J arrived at this decision stands."s

In 1998 the UK government established the Human Rights Act,"' which incorporated

into domestic law the European Convention on Human Rights. Included in this document

were fundamental rights that had not been readily accessible to UK citizens. The

Convention provides the fundamental right to life,"$ and the right to be free from

inhuman and degrading treatment.19 Do these rights confer that if a patient wants to end

their life then this right should be respected? Does it basically provide a right to die?'zo

A case was submitted to the European Court of Human Rights raising the

aforementioned questions.12' Diane Pretty was in the advanced stages of a fatal

incurable degenerative disease. She sought to reduce her suffering by having her

husband assist in her suicide, but also that her husband be granted indemnity against

prosecution under the Suicide Act.122 It was submitted by Diane that Article 2, in its

essence, is not a right to life, but rather a right to self-determination over life; a right

whether to live or not.

14 Supra n. 35, Lord Browne-Wilkinson at 87815 Supra n. 7316 J Coggon, Could the right to die with dib ity represent a new right to die in English law?' (2006)Medical Law Review 219"' Human Rights Act 1998"$ Supra n. 74, Article 2(1):Everyone's right to life shall be protected by law. No one shall be deprived of his right to life intentionallysave in the exercise of a sentence of a court following his conviction of a crime for which the penalty isprovided by law.'19 Supra n. 74, Article 3:No one shall be subjected to torture orto inhuman or degrading treatment or punishment.'10 In the case of Rodriguez v British Columbia (AG) (1994) 107 DLR 4`~ 342, a similar issue was raisedbefore the Supreme Court of Canada where the patient argued that the legislation prohibiting PAS breachedher rights to autonomy and dignity guaranteed by the Canadian Charter of Rights and FundamentalFreedoms. By a narrow majority, the Supreme court upheld the legislation and rejected her application,insisting that there was no right to die.'Z' Supra n. 65'ZZ Supra n. 79, s 2(1)

28

The court replied to Diane's submission, stating:'23 Article 2 cannot... be interpreted as

conferring the diametrically opposite right, namely a right to die; nor can it create a right

to self-determination in the sense of conferring on an individual the entitlement to choose

death rather than life.' It was not concerned with issues such as quality of life and did not

confer a right to self determination of life.124 The court basically decided that assisted

suicide was prohibited in the UK, and no argument arising under the Convention would

suffice to change that precedent.

In addition, Diane argued under Article 3, the right to be free from inhuman or degrading

treatment, that by preventing her husband from assisting in her suicide, the state would,

by exposing her to the pain and distress which inevitable would befall her in the terminal

stages of the disease, fail in its obligation to prevent her suffering inhuman and

degrading treatment.125 Although the courts did not adhere to Diane's submissions, they

nevertheless raise valid arguments regarding the right to die.

A look at the position of anotherjurisdiction indicates a similar position to the UK in

relation to the self-termination and PAS. In an Irish case126 concerning the right to die',

Hamilton CJ expressly stated that: No person has the right to terminate or to have

terminated his or her life or to accelerate or have accelerated his or her death...'

Although the right to die' is not as such respected in the UK, otherjurisdictions do seem

to respect a patient's right to end their life, however it is limited to exceptional

circumstances. A medium could be reached by looking at the Netherlands legislation on

euthanasia; the Termination of Life on Request and Assisted Suicide (Review) Act 2002.

While this lax approach on euthanasia should not be adopted in the UK, the due care'

requirements include that the patients suffering was lasting and unbearable.'127

i23 Supra n. 65, at 29'Z4 Supra n. 65, at 29"The Court accordingly finds that no right to die, whether at the hands of a third person or with theassistance of a public authority, can be derived from Article 2 of the Convention."i25 Supra n. 91, at 70tzb In the Matter of a Ward of Court [1995] 2 IRLM 401'27 Supra n. 44, Article 2

29

Also in the Death with Dignity Act 1994, which legalises PAS in Oregon, American

doctors are allowed to administer lethal drugs to competent patients when it is agreed by

at least two doctors that the patient has less than six months to live.'28

Comparison to American cases:

In addition, the factors conforming around a patients right to refuse medical treatment in

the UK seems to concentrate on aspects such as patient autonomy and how the family

will be affected.129 However an alternative view can be seen from similar cases which

arise in America, where the courts have agreed that the State has several interests of

significance that must be weighted in determining whether the right of the individual

should prevail: (1) the interest of the State in preserving the sanctity of life, (2) the

interest of the State in preventing suicide; (3) the interest of the State in protecting

innocent third parties who may be adversely affected by the death; and (4) the State's

interest in preserving the integrity of the medical profession.13o

In the case of Satz v Perlmutter'3' the court stated that: there can be no doubt that the

State does have an interest in preserving life, but...there is a substantial distinction in

the State's insistence that human life can be saved where the affliction is curable, as

opposed to the State interest where, as here, the issue is not whether, but when, for how

long and at what cost to the individual [his] life may be briefly extended.'

Additionally the case of Bouvia v Superior Court,132 which involved a competent adult

patient who was not terminal, concluded that in situations involving adults who are: (1)

competent; (2) irreversibly sustained by life-support systems, or some other form or

radical medical treatment; and (3) enduring physical and mental pain and suffering, then

the individuals right to decide will generally outweigh the State's interest in preserving

life.133

128 Supra n. 99, s 2'Z9 Supra n. 35, Lord Hoffmann 853; it is far from "unreal" to suggest that the patient has an interest inhow he will be thought of after his death by those whose opinions matter to him''3o McKay v Bergstedt (1990) 801 P 2d 617 (Nev Sup Ct), Steffan J13' Satz v Perlmutter 362 So 2d 160 (Fla App 1978), at 162'32 Bouvia v Superior Court 179 Cal App 3d 1127 (Cal Ct App 1986)'33 Supra n. 87, at 1909-1910

30

There seems to be an important difference between the American cases, such as

Perlmutter, Bergstedt, Bouvia, and also Farrell134 as opposed to the UK cases; because

Re T935 recognised that the right to refuse life-sustaining treatment applied to all

competent patients, and not just those who were terminally ill which seems to be the

important factor in American. There is a great sense from the American cases of

preserving the patient's best interests with the important factor being relieving pain and

suffering, as relief was granted in all four of the above mentioned American cases.

Possibly this is the breakthrough necessary to reinvent the UK policy on refusing

treatment' cases.

In the case of Tony Bland, Lord Keith of Kinkel averted that the principle of sanctity of life

is not an absolute one'.136 Their Lordships rejected the approach which placed pain and

suffering in a unique category,137 and observed that this exception should be

supplemented by other factors, particularly how one will be thought of by others after

their death.138 While it has been argued in a preceding chapter that the important

decision of whether or not to provide medical treatment can be best handled by the

patients family;139 the assertion by Butler-Sloss that the family's after death thoughts are

a more important factor than the patients pain and suffering seems illogical.

And even if the right to die was deemed to exist in exceptional circumstances, and

doctors have been of the opinion that this should be the case,'40 there would still remain

the situations where the right to self-determination has extended too far. What if a case

arose where a young patient refused medical treatment with reasons that were irrational,

unknown or even non-existent'?'a' What would be the consequences for a doctor who

did not conform to the self-determination rights? It opens the bizarre possibility that a

patient who recovers could sue a doctor for not letting them die.

'34 Re Farrell (1987) 529 A 2d'3s Supra n. 5'36 Supra n. 35, Lord Keith of Kinkel 859

137 Supra n. 35, Lord Butler-Sloss 820:To place pain and suffering in an unique category, the existence of which may justify foregoing thepreservation of the sanctity of life, does not appear to meto be justifiable.'138 Supra n. 35, Lord Hoffinann 853:it is far from "unreal" to suggest that the patient has an interest in how he will be thought of after his deathby those whose opinions matter to him''39 Supra n. 43, Lasting Power of Attorney

140 Supra n. 84, in particular the discussion of the case of Timothy Quill.14' Supra n. 5, Lord Donaldson 115

31

This very situation arose in the American case of Werth v Taylor,142 which possesses

striking similarities to the case of Emma Gough. A blood transfusion was necessary to

preserve the life of a Jehovah's Witness who had just given birth to finrins. Approximately

two months before the birth Mrs Werth had completed a Refusal to Permit Blood

Transfusion' form.

Following the delivery of her twins, Mrs Werth was found to be bleeding from the uterus.

She was then admitted to surgery where it was ascertained that a blood transfusion was

necessary to save her life. The procedure went ahead against the expressed wishes in

the Refusal' form, and after recovering Mrs Werth filed a medical malpractice action

against the doctor, basically for not adhering to the Refusal' form and saving her life by

way of a blood transfusion against her wishes.

The doctor's defence was that when Mrs Werth completed the Refusal to Permit Blood

Transfusion' form it was not in anticipation of death, and therefore had not been a fully

informed decision. Judge Neff PJ stated,143 in agreement with the otherjudges, without

contemporaneous refusal of treatment by a fully informed competent adult patient, no

action lies for battery...' Although the judges provided adequate reasoning for their

decision, perhaps they also felt it would be preposterous to prosecute a doctor who

performed a procedure that saved the life of a young mother, although legally they could

have been justified.

Consider the Werth decision in the light of Lord Donaldson's fourth proposition for when

a patient can refuse medical treatment,'aa basically asserting that the refusal needs to be

informed, i.e. the patient is aware of the consequences should the treatment not be

performed. In how many cases when advance decisions were used can it be said that

the patient was fully aware of all possible consequences? They clearly were not facing

death when making the advance decision, just as Mrs Werth was not facing death.

'42 Werth v Taylor (1991) 475 NW 2d 426 (Mich CA)'43 Supra n. 87, at 2038

~~ Supra n. 5, Lord Donaldson 116:(4) Doctors faced with a refusal of consent have to give very careful and detailed consideration to whatwas the patient's capacity to decide at the time when the decision was made'

32

US law recognises a much stronger doctrine of informed consent than in the UK. In the

US the patient is given information on proposed treatments and the possible

consequences of each. Whereas in the UK, there is merely a requirement that the

patient be informed in broad terms the nature of the proposed treatment.'a5

When the Right to Die should be allowed:

From the points made in the above arguments it can be asserted that the correct

approach to take is to allow patients the right to die to certain situations. When

considering the cases of Diana Pretty and Tony Bland one can only feel remorse for

these people and their families. Surely the moral stance would be to allow these patients

the right to die with dignity?

However, the aforementioned arguments about refusing medical treatment also raise

moral and ethical issues. It should not be as easy to determine life threatening decisions

by simply filling out an advance decision form. Active euthanasia is aptly prohibited in

this country but other jurisdictions are seemingly taking a more lenient view of this issue.

The above points combine to affirm that the right to die should exist in the situations, like

in America, where a patient is in a great deaf of pain. As concluded in the preceding

chapter: PAS should be legalised in limited circumstances, and thus the right to die

should exist in these certain situations. However, this raises issues as to the position of

UK law if these proposals were taken on board?

'45 S Korek, Medicolegal Essentials in Healthcare (2"d edn GMM London 2004) 129

33

Chapter Seven:

Conclusion: A New Approach

After considering the arguments above, it is important to examine any solution that may

be available to these problems. The only way for the basic right to refuse treatment to be

overturned would be for:

(a) a judge to override the basic rule established in Re T, and establish a new

precedent by common law;146 or

(b) Parliament to introduce legislation whereby a new statutory rule abolishes the

right to refuse medical treatment.

What exactly would be contained in this statutory document would obviously be a matter

of much debate if ever presented before Parliament, due to the very mixed views on

euthanasia and other life-ending methods. An approach could be reached by looking at

legislation from otherjurisdictions. The Netherlands legislation legalises euthanasia, an

approach which should not be adopted in the UK, however the due care' requirements

include that the patients suffering was lasting and unbearable.''a'

A better model could be the Death with Dignity Act 1994, which legalises physician-

aided suicide in Oregon. American doctors are allowed to administer lethal drugs to

competent patients when it is agreed by at least two doctors that the patient has less

than six months to live.'a$

These prerequisites should be adopted in a UK Bill; that although the right to refuse

medical treatment has been abolished, if the patient has a terminal illness, are in

constant pain, and it has been confirmed that they have less than six months to live;

then they can evoke PAS.

iab It is at present unlikely that a judge would set new precedent dueto the general view that the ruleestablished in Re T being fundamental147 Supra n. 44, Article 2: The requirements of due care...holds that... the patients suffering was lastingand unbearable'148 Supra n. 99, s 2

The reasons for the adoption of PAS, as opposed to VAE or passive euthanasia by

withholding /withdrawing treatment, are twofold:

(1) legalising VAE could lead to abuses in the system and adversely effect the

vulnerable,149 and

(2) passive euthanasia by withholding /withdrawing treatment leads to needless

deaths'so

The law currently states that: a competent woman (or man) who has the capacity to

decide may, for religious reasons, other reasons, or for no reasons at all, choose not to

have medical intervention.''s' This is quite simply an illogical notion, up until 1961 it was

a mortal sin to commit suicide,152 and although it has been abrogated it is still deemed

immoral, yet people can decide to effectively end their life for no reason at all'. With a

pro-PAS approach the sanctity of human life is at all times preserved and only when a

patient is living with a reduced quality of life should life-ending methods be considered.

In May 2006 an Assisted Dying for the terminally III Bill was presented before Parliament

by Lord Joffe,153 the aim of which would give doctors the right to prescribe drugs that a

terminally ill patient in severe pain could use to end their own life. Although the Bill has

been blocked by Parliament Lord Joffe has pledged to introduce his Bill at a later date,

and the government has assured that it will not block a further hearing of the Bill.'sa

The stated purpose of the Bill, which was modelled on Oregon's Death with Dignity Act,

was to enable an adult who has capacity and who is suffering unbearably as a result of

a terminal illness to receive medical assistance to die at his own considered and

persistent request.''ss In 2005, prior to the Bill being presented before Parliament,

opposition was dropped by the British Medical Association, who assumed a neutral

stance.'ss

'a9 Supra n. 91, the problem was that if assisted suicide were permitted by the state, this would endangerthe lives of the elderly and the vulnerable.'eso Supra n. 115' Supra n. 17, Butler-Sloss at 193'S2 Supra n. 79's3 Supra n. 100'S4

<http://news.bbc.co.uk/l/hi/hea1tW4763067.stm> accessed 04 Apri12008iss The Bills Full TitleIsb BMA drops its opposition to doctor-assisted suicide <http://www.timesonline.co.uk/tol/news/uk/article539179.ece> accessed OS April 2008

35

However, unlike Oregon, it required unbearable suffering', and, unlike the Netherlands,

it did not permit VAE. In a way it can be seen to incorporate the superior elements from

the legislation of the other jurisdictions, while still upholding the sanctity of human life,

and essentially only allowing the right to die to be evoked in exceptional circumstances

where there is unbearable suffering'.

The recommendations for reform to the laws are fore fronted by; firstly abolishing the

principle and precedent set in Re T,157 and adopting the legislation similar to Oregon to

legalise PAS.

In the end it is the sanctity of human life that is most paramount, and through this

approach it can best be achieved.

157 Supra n. 5, Lord Donaldson 102

36

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37

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38

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