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.

Declarations

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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...............................................................................................

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For choice, and JK

Acknowledgements

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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.

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Contents

Summary........................................................................................................................2Declaration.....................................................................................................................3Acknowledgements........................................................................................................5Table of contents............................................................................................................6

Introduction....................................................................................................................9

CHAPTER ONE – The Moral Step Back1. Introduction..............................................................................................................151.1 Euthanasia: the often defined, yet never defined concept......................................181.2 The Moral Step Back..............................................................................................211.3 Action and the meaning behind what it is to act....................................................241.3.1 Defining ‘Action’.................................................................................................291.3.2 Defining Volition.................................................................................................341.3.3 Defining ‘Omission’............................................................................................381.4 Perpetual Illogicalities............................................................................................411.4.1 The distinction based on acts and omissions: what it is and how it is wrong....421.5 Conclusion..............................................................................................................51

CHAPTER TWO – Intention, Double Effect and the Moral Step Back2. Introduction..............................................................................................................532.1 Intention and Foresight...........................................................................................552.1.1 Intention, Foresight and what it is to Act Intentionally.......................................572.2 Double effect..........................................................................................................602.3 Double Effect and the Moral Step Back.................................................................682.3.1 Pain relief, certain death and uncertain consequences.......................................692.3.2 Intention, Foresight and the effect of Action.......................................................732.4 Conclusion..............................................................................................................83

CHAPTER THREE – The ‘Moral Step Back’ and judicial rulings3. Introduction..............................................................................................................853.1 Capacity, competence, choice, consent..................................................................863.2 The competent patient in England and Wales........................................................913.2.1 Burning Burke’s Bridge?....................................................................................983.3 The competent patient in America.......................................................................1003.4 The incompetent patient in English and American law.......................................1033.4.1 Best interests and the English cases..................................................................1033.4.2 American law, the substituted judgement test and incompetent patients..........1103.4.2a Dealing with the once competent but now incompetent patient......................1113.4.2b Dealing with the never-has-been-competent patient.......................................1153.5 Exploring respect for autonomy...........................................................................1173.5.1 Possible reasons for the respect........................................................................1193.5.2 Respect and the MSB.........................................................................................1233.6 Conclusion............................................................................................................126

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CHAPTER FOUR – Choice: life’s sanctity and worth4. Introduction............................................................................................................1284.1 Choice and the need for competence....................................................................1294.2 Various ways of valuing life................................................................................1304.2.1 Life’s intrinsic value – religion and sanctity.....................................................1374.2.1a Life’s intrinsic value – secular sanctity...........................................................1414.2.2 Life’s Instrumental value...................................................................................1434.2.3 Choosing Life’s value........................................................................................1454.3 Claim One: How the MSB values life..................................................................1464.4 Claim Two: Autonomy as a Primary good?.........................................................1484.5 Conclusion............................................................................................................152

CHAPTER FIVE – Legal reasons for and against reforming the law5. Introduction............................................................................................................1545.1 Current defences are ineffective...........................................................................1555.2 Formalise current practices..................................................................................1585.2.1 Regulation.........................................................................................................1585.2.2 Discrepancies between ‘legal’ practices and ‘accepted’ practices..................1605.3 The legality of suicide and the concurrent illegality of assisted suicide..............1625.3.1 Scope, the Coroners and Justice Act and Purdy v. DPP...................................1625.3.2 The PAS/suicide dichotomy...............................................................................1665.4 The backdrop to the Purdy case: Pretty and the right to die.................................1715.4.1 From Pretty to Purdy........................................................................................1735.4.2 The decision of the Divisional Court.................................................................1745.4.3 The decision of the Court of Appeal..................................................................1765.4.4 The decision of the House of Lords...................................................................1785.5 The DPP’s Guidelines on Assisted Suicide..........................................................1825.5.1 The ‘perfect’ offender........................................................................................1845.5.2 The perfect ‘innocent’ assistor..........................................................................1865.6 Legal arguments against reform: A possible presently legal solution?................1905.7 Legal arguments against reform: The slippery slope...........................................1925.7.1 Evidence of the slippery slope? – The Netherlands..........................................1985.8 Conclusion............................................................................................................205

CHAPTER SIX – The moral arguments for and against reform6. Introduction............................................................................................................2076.1 Autonomy.............................................................................................................2086.2 Dignity..................................................................................................................2136.3 Mercy...................................................................................................................2206.4 Public opinion......................................................................................................2256.5 Moral arguments against reform..........................................................................2296.5.1 Religious arguments against reform.................................................................2306.5.1a Reform/euthanasia is contrary to the will of God...........................................2316.5.1b The sanctity of life and the prohibition on intentional killing.........................2336.5.1.c The value of suffering.....................................................................................2346.6 Psychological assistance for the doctor involved.................................................2366.7 Effect on the doctor/patient relationship..............................................................2406.8 Conclusion............................................................................................................246

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CHAPTER SEVEN – Options for reform7. Introduction............................................................................................................2487.1 A special defence for physicians who ‘commit’ euthanasia................................2547.1.1 Mercy Killing.....................................................................................................2567.1.2 Mercy Killing as a doctor’s defence?................................................................2647.1.3 Necessity............................................................................................................2687.2 Immunity from prosecution if certain criteria are met.........................................2747.3 Conclusion............................................................................................................278

CHAPTER EIGHT – The Assistance In Dying Bill (2011)8. Introduction............................................................................................................2818.1 Tabulating concepts..............................................................................................2818.1.1 Table 1: Doctor related issues..........................................................................2818.1.2 Table 2: Patient related issues..........................................................................2828.1.3 Table 3: Miscellaneous sections.......................................................................2828.2 Evidence from interviews.....................................................................................2838.2.1 Table 4: Participant opinions...........................................................................2838.3 Deconstructing the Bill – preliminary considerations..........................................2848.3.1 ‘Part A’ of the AID Bill (2011)..........................................................................2858.3.2 ‘Part B’ – Defining the ‘qualifying patient’......................................................2908.3.2(a) An ‘Intractable’ illness.................................................................................2908.3.2(b) Suffering........................................................................................................2948.3.2(c) The patient may be unable to take his own life.............................................2988.3.2(d) The age of majority.......................................................................................3008.3.2(e) Capacity and the voluntary character of the patient’s request.....................3018.3.2(e)(i) Should psychiatric referral be mandatory?..............................................3058.3.2(f) The Waiting Period........................................................................................3078.3.3 ‘Part B’ – the roles and characteristics of the doctor under the AID Bill (2011).........................................................................................................................3098.3.3(a) The Quandary of Conscientious Objection..................................................3128.3.3(a)(i) Must an objecting physician refer his patient’s case to a willing colleague?..................................................................................................................3148.3.3(b) The AID Bill and palliative care...................................................................3168.3.4 ‘Part C’ –An introduction to monitoring practices under the AID Bill..............................................................................................................................3188.3.4(a) The AID Bill’s effect on the patient’s insurance...........................................3198.3.4(b) ‘Part C’ and regulation under the AID Bill.................................................3208.3.4(b)(i) Offences....................................................................................................3228.4 Conclusion............................................................................................................325

Final Conclusion........................................................................................................326Appendix 1: The Assistance In Dying Bill (2011)....................................................331Bibliography..............................................................................................................343Internet Sources.........................................................................................................360Government Reports..................................................................................................362Case list......................................................................................................................363Statutes......................................................................................................................367

Introduction

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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

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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

showed that the shortcomings of non-legislative methods, particularly the fact that 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.

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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.

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 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.

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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.

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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.

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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.

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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). http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html (accessed on January 10th 2012 at 13.44pm).

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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

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.

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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

16 ‘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 19th November 2007.

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– 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 Routledge-Cavendish 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

25 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: Routledge-Cavendish 2007) at pg. 8.

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. 9.29 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.

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. 4.35 R v. Adams [1957] Crim. L.R. 365.36 R v. Cox (1992) 12 BMLR 38.

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 self-

deception’ 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)

37 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.

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.40 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 45342 ibid., at pg. 454.

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 end-

of-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. 454.44 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.

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

47 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).

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Velleman57and the evaluatory view explored by Buss.58 The calculative and 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 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 399.59 Korsgaard C, (1999) ‘Self-Constitution in the Ethics of Plato and Kant’ 3 Journal of Ethics 1.60 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).

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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

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

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 well-formed, 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.64For 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 10th October 2010 at 10.53am). Also see: http://plato.stanford.edu/entries/freewill/ (accessed on 14th November 2009 at 13.56pm).

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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

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

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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

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

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.

29

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

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. Second-

order 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’:

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).75 In syntax a transitive verb is one which requires both a direct subject and one or more objects.76 Intransitive verbs do not require objects. For example the words ‘sleep’ and ‘die’ are intransitive.77 Frankfurt H, (1971) op. cit.

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‘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’

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

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. 17.80 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.

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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 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

83 Anscombe G E M, Intention (Ithaca, New York: Cornell University Press 1958) at pgs. 11, 45-46.84 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.

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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

‘...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’

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.90 ibid., at pg. 10.91 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.

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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

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 function98 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

93Goldman 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).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).

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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.

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.

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 443.106 See Davidson D, Essays on Action and Events (Oxford: Oxford University Press 1980) at pgs. 3-4.107 Moore M S, (1993) op. cit., chapter 1.6 for discussion.108 ibid., at pg. 120.

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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

‘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

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 319.113 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.

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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.

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

114 Anscombe G E M, (1983) op. cit.

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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

‘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

115 Taylor R, Action and Purpose (New Jersey: Prentice-Hall, Inc 1966) at pgs. 68-69.116 Ryle G, (1949) op. cit., at pgs. 64-65. Also see Melden A I, (1960) ‘Willing’ 69 (4) Philosophical Review 475.117 Moore M S, (1993) op. cit., at pg. 121.

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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

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

118 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 424.120 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).

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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

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

122 Airedale NHS Trust v. Bland [1993] 1 All ER 821123 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. 81.124 Davis L H, ibid., at pg. 82.

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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.

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.

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.

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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.

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

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.135Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 867.

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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

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

136 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 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.

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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.

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

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.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.

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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 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.

145 ibid., at pg 163.146 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.

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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 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

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’.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.

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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

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

153 R v. Instan [1893] 1 QB 450.154 R v. Stone and Dobinson [1977] QB 354 (CA).155 R v. Gibbons and Proctor (1918) 62 JP 287, 13 Cr App R 134.156 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).

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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 medico-

legal rhetoric is to be believed, the physician is a mere witness to his patient’s death,

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

158 ibid., at pg. 143.159 Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 868.160 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.

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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.

Withdraw (al)163

Noun1. 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.

163 http://dictionary.reference.com/browse/withdrawal (accessed on April 8th 2008 at 12.22pm).164 ibid.165 ibid.166 ibid.167 ibid.

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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

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

168 Coulson J, (1996) ‘Till Death Do Us Part’ British Medical Association News Review September: 23-25.169 Gillon R, Philosophical Medical Ethics (Chichester: John Wiley & Sons 1999) at pg. 126.170 ibid., at pg. 127.171 ibid., at pg. 127.172 ibid.173 ibid., at pg. 129.

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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:

‘...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 174 ibid., at pg. 129.175 ibid., at pg. 129.176 Rachels J, (1975) op. cit.

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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

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 ‘non-

permissible’ 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.

177 Harris J, (1985) op. cit.

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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

178 Chapter 1 section 1.5 of this work.179 Kuhse H, The Sanctity of Life Doctrine in Medicine: A Critique (Oxford: Clarendon Press 1987) at pg. 165.

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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

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

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. 121-2.183 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.

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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.

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

187 The phrase ‘English law’ throughout this work denotes the law of England and Wales.188 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.

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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

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:

190 Cunliffe v. Goodman [1950] 2 K.B. 237 at 253.191 R v. Moloney [1985] AC 905 at 928.192 R v. Nedrick [1986] 3 All ER 1 at 3.

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‘… (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

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

193 R v. Woollin [1998] 4 All ER 103 at 114.194 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.

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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

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,

198 Section 1.3.1 of this work.199 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.

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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.

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

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.

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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

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

209 Duff R A, (1990) op. cit., at pgs. 76-80.210 ibid.211 Kuhse H, (1987) op. cit., at pg. 90.212 An interview with Baroness Warnock conducted on 19th 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

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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 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’.

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 66.214 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.

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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

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

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: Routledge-Cavendish 2007).222 R v. Adams [1957] Crim. L.R. 365.223 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.

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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" 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

226 Foster C, Herring J, Melham K and Hope T, (2011) op. cit at pg. 62.227 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.

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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

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

233 Cavanaugh T A, Double-Effect Reasoning: Doing Good and Avoiding Evil (Oxford: Clarendon Press 2006).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.

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‘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

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:

239 R v. Cox (1992) 12 BMLR 38.240 Mclean S A M, Assisted Dying: reflections on the need for law reform (Abingdon: Routledge-Cavendish 2007).241 ibid., at pg. 108.

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‘…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

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 242 Re T (adult) (refusal of medical treatment) [1992] 4 All ER 649, (1992) 9 BMLR 46, (CA).243 Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; [1994] 1 All ER 819.244 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.

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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:

‘...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.

247 An interview with ‘Doctor 10’ by Edwards. J conducted on 18th March 2010.248 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).

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Now that the DDE’s workings have been explored, discussion can move on to the

MSB and how it impacts on the DDE.

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

251 Blame that in cases of PAS and euthanasia should not be put upon practitioners at all.252 Sykes N and Thorns A, (2003) ‘Sedative use in the last week of life and the implications for end-of-life decision making’ 163 (3) Archives of Internal Medicine 341.253 Young R, Medically Assisted Death (Cambridge: Cambridge University Press 2007) at pg. 108.

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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:

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

254 See section 1 of chapter 1 of this work.255 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.

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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

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

257 ibid., at pg. 91.258 Sykes N and Thorns A, (2003) op. cit.259 Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: Routledge-Cavendish 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

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Twycross267 all attest to the safety of morphine and diamorphine when they are used 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

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. 1477-1478.268 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 18th March 2010.270 Barring actions like those of Dr Cox.271 An interview with ‘Doctor 6’ by Edwards J conducted on 14th 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.

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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

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

273 Harris J, The Value of Life (London: Routledge & Kegan Paul 1985) at pg. 45.274 An interview with ‘Doctor 6’ by Edwards J conducted on 14th September 2009.275 An interview with ‘Doctor 7’ by Edwards J conducted on 21st October 2009.276 ibid.

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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

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

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.280 Kuhse H, (1987) op. cit., at pg. 101.

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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 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

281 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.

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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 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

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 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.

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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

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

287 ibid., at pgs. 78-79.288 ibid., at pg. 78.289 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.

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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.

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.

292 Devine P E, The Ethics of Homicide (Indiana: University of Notre Dame Press 1990) at pg. 123.293 Fried C, Right and Wrong (Cambridge, Massachusetts: Harvard University Press 1978) at pg. 24.294 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 143.296Foot 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.

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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

(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

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.302 Kuhse H, (1987) op. cit., at pg. 101.303 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.

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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.

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 305 ‘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.

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Diagram 1 – Double effect

Intended consequence – amelioration of pain

The intention(al) provision of a

bolus of morphine

The state of acting intentionally – without coercion.

Foreseen (though unintended) consequence - death

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,

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

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.

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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:

‘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.

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.309 Ashworth A, Principles of Criminal Law (5th edn Oxford: Oxford University Press 2006).310 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.

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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:

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:

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’.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).

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Diagram 2 – boundaries?

Taking action in full knowledge of foreseen consequences

‘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

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

313 Chapter 1 section 1.3.1 of this work.314 See the discussion in section 2.3.1 of this chapter.315 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.

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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

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.

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.323 Williams G, (2007) op. cit., at pg. 17.

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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

324 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.

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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

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,

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.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.

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(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

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:

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. 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.

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‘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.

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

335 Law Com No. 231 op. cit., para. 34.336 Walton Committee (1994), Report of the Select Committee on Medical Ethics (London: HMSO).337 Mental Capacity Act (2005) sections 2 and 3.338 Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 at 653.

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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

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

339 ibid., at 650.340 Re C(Adult Refusal of Medical Treatment) [1994] 1 WLR 290; [1994] All ER 819.341 ibid., at 825.342 ibid., at 822.

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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 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;

343 Re MB (Medical Treatment) [1997] 2 FLR 426.344 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.

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(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

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

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.

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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

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. 346 Ms B v. An NHS Trust Hospital [2002] EWHC Fam 429.

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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.

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

347 Re B (Adult: Refusal of Medical Treatment) [2002] 2 FCR 1 para. 27.348 ibid., at para. 95.349 ibid., at para. 100.

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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.

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 350 http://news.bbc.co.uk/1/hi/health/background_briefings/euthanasia/332464.stm. (accessed on 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 273.353 Re AK (Medical Treatment: Consent) [2001] 1 FLR 129.354 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).

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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

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.

356 R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273.357 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.gmc-uk.org/guidance/ethical_guidance/6858.asp.

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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 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

358 R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 32.359 ibid., at 32.360 ibid., at 32.

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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

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:

361 Airedale NHS Trust v. Bland [1993] AC 789; [1993] 1 All ER 821.362 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.

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‘…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

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 non-interference. 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?

368 ibid., at 64.369 ibid., at 64.370 Interview with ‘Doctor 2’ by Edwards. J conducted on 15th April 2009.371 The case of Glass v. United Kingdom (Application No. 61827/00) (2) comes to the same conclusion as the Burke case.

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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

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 non-

existent 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,

372 R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 32.

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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

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 self-

evident truth.’376 He later asserts that this denial is based on the ‘dubious’ DDE and

373 Satz v. Perlmutter, 362 So. 2d 160 (Fla. 4th DCA 1978).374 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.

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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

continued existence in an unacceptable condition, knowing death is the consequence

of the decision. However, this distinction leads to treating almost all ‘rational self-

killings’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

377 ibid.378 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

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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

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) preserving life, (2) preventing suicide, (3) protecting innocent third parties, and (4) 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

649.381ibid., at 1019.382 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’.

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the Common Law right of self determination. Springer J, dissenting, was deeply

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

384 McKay v. Bergstedt (1990) 801 P 2d 617 (Nevada Supreme Court).385 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.

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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

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).389 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.

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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 858.393 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.

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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., at para 30.397 ibid., at para 30.398 ibid., at para 30.399 ibid.400 ibid., at para 30.

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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:

401 ibid.402 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.

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‘...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

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

408 Ward of Court (In the matter of a) [1995] 2 ILRM 401 at 127.409 Ibid., at 428.410 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.

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circumstances which would have involved dying over a protracted number of weeks

from starvation. The withdrawal was therefore denied.

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.

412 NHS Trust A v. M [2001] 2 FLR 367; NHS Trust B v. H [2001] 2 FLR 501.413 ibid.414 Vacco v. Quill (521 U.S. 793; S. Ct. 2293; 1997 U.S. LEXIS 4038; 138 L. Ed. 2d 834).

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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

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 self-

determination; 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

415 Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 872.416 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.

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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.

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

422 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.

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First Amendment,426 but again his petition was denied. The court also considered the

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

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, 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 4th 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.

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It was also stated that:

‘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

432 ibid., at 39.433 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).

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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

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

435 ibid., at 269.436 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 4th 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.

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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

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

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.

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treatment brought about remission, would be comparatively poor. Weighing these

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

440 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.

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As was posited in the Cruzan case, noted above, ‘…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)…’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

444 Cruzan by Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990) at 269.445 Ramsey P, (1978) op. cit., at pg. 37. 446 Re Quinlan 70 N.J. 10, 355 A.2d 647, 1976.

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cases of Re T, Re C and Re MB make it clear that competence is a requisite of

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.

447 Re T (adult: refusal of medical treatment) [1992] 4 All ER 649 at 650. 448 Interview with ‘Doctor 2’ by Edwards. J conducted on 15th 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.

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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

their consciences453 or psychologically distance themselves from the results of their 450 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.453 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).

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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 Drs van Coevorden and Mensingh van Charente): Awful. It is not a normal medical treatment. You are never used to it.”458

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 3rd 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 669.458 Stevens K R, (2006) op.cit., at pgs. 204-205.

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“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

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

459 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.462 Gillon R, Philosophical Medical Ethics (Chichester: John Wiley & Sons 1999) at pg. 63.

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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 self-determination, this choice ought to be respected.’466

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

463 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.

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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

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

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.470 Section 2.2 of chapter 2 of this work.

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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

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

471 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 15th April 2009. Also see sections 3.2 and 3.2.1 for a discussion of the Burke case.

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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 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. 476 Airedale NHS Trust v. Bland [1993] 1 All ER 821.477 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.480 See section 1.4.1 of chapter 1.

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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

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

481 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.

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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.

Chapter 4

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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 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,

484 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.

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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

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

487 Ms B v. An NHS Hospital Trust [2002] EWHC 429 (Fam).488ibid.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).

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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

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,

491 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).

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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,

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, 494 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.

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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

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 497 Paterson C, (2008) op. cit.,498 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.

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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

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.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.

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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 cost-

effectiveness, irrespective of the possible long term cost-savings from adopting the

new treatment.

509 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.

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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:

‘…public programs, such as the control and eradication of disease, highway construction, accident control, education, vocational rehabilitation, welfare, housing, and flood control…’516

513 Interview with ‘Doctor 2’ by Edwards. J conducted on 15th April 2009.514 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. 45-47.516Rice D P and Cooper B S, (1982), ‘The Economic Value of Human Life’ 57 (11) American Journal of Public Health 1954 at pg. 1954

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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

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 517 ibid., at pg. 1954518 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: Routledge-Cavendish 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).526 Paterson C, (2008) op. cit.

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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 precisely such abilities.’530 As a result it belongs to all human beings equally.

527 Young R, (2007) op. cit., at pg. 66528 Keown J, Euthanasia, Ethics and Public Policy (Cambridge: Cambridge University Press 2002) at pg. 232.529 Kuhse H, (1987) op. cit.530 http://www.linacre.org/elderly.html (accessed on June 13th 2011 at 13.14pm).

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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

birth; after 40 days in the case of boys, and after 60 for girls.536 Kuhse further

describes this quality:

531 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. 4.536 Brock D W, Life and Death: philosophical essays in biomedical ethics (Cambridge: Cambridge University Press 1993).

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‘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

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

537 Kuhse H, (1987) op. cit., at pg. 17538 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 128.543 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,

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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.

4.2.1a Life’s intrinsic value – secular sanctity

Killing in self defence (Oxford: Oxford University Press 2006); Uniacke S, Permissible Killing: The Self-Defence 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.

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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.

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

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

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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 perception-

based ethic than that espoused by the intrinsic value school of thought, and it is to

instrumentalism that this chapter now turns.

4.2.2 Life’s Instrumental value

555 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

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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

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

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. 438569 Kuhse H, The Sanctity of Life Doctrine in Medicine: A Critique (Oxford: Clarendon Press 1987) quoting Georgina Harkness at pg. 16.570 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

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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.

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

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.

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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

help cannot be compelled of the person asked. Scope therefore is the argument’s main

flaw.

578 Mclean S A M, Assisted Dying: reflections on the need for law reform (Abingdon: Routledge-Cavendish 2007) at pg. 31579 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.

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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

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.

586 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).

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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

patient himself or by the person who has been granted LPA under the Mental

Capacity Act (2005).

587 Dworkin R, (1993) op. cit., at pgs. 71-73.588 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.

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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

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

591 R. (on the application of Pretty) v. DPP [2001] UKHL 61; [2001] 3 WLR 1598.592 Paterson C, Assisted suicide and euthanasia: a natural law ethics approach (Aldershot: Ashgate 2008) at pg. 55.

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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

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 593 ibid., at pg. 55.594 ibid., at pg. 58.595 ibid., at pg. 58.

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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

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

596 ibid., at pg. 58.597 ibid., at pg. 59.

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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

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.

598 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.

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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 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

599 Rachels J, The End of Life: Euthanasia and Morality (Oxford: Oxford University Press 1985) at pg. 65.

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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.

Chapter 5

Legal reasons for and against reforming the law

5. Introduction

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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

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. 600 R (on the application of Purdy) (Appellant) v. Director of Public Prosecutions (Respondent) [2009] UKHL 45.601 ibid.

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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

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.

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.

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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:

‘... ‘mercy killing’ refers to the act of procuring the death of a person who has an incurable or intractably painful disease, by a family

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’.

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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

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

606 Williams G, (2001) ‘Provocation and Killing with Compassion’ 65 Journal of Criminal Law 149.607 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.

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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

those who responded, when asked if they had taken active steps to end a patient’s life,

did so affirmatively.613 610http://www.bma.org.uk/images/Euthanasia%20&%20PVS%20%20ARM%20discussion%20paper_tcm41-146697.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 1332.613 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

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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

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.

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. 1383.620 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.

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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

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.

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 38.627 Otlowski. M, (1997) op. cit., at pg. 209.

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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

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.

628 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-good-death-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.633 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.

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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:

“…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

635 R (Purdy) v. DPP (2009) EWCA Civ 92.636 Sections 5.4.1 through 5.4.4 discuss the decision in Purdy.637 R (Purdy) v. DPP (2009) EWCA Civ 92.638 Treacy v. DPP [1971] A.C. 537 at 561.

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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 inter-

jurisdictional 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.

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

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. 276.642 Hirst M, (2009) op. cit., at pg. 872.

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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:

‘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

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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

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 643 ibid., at pg. 870.

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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

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

644http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/6170602/Chief-judge-Lord-Phillips-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. 6.647 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.

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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

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

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.

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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

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

653 Another possible motivation would be the fear that the patient’s request has been coerced. 654 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.658 Re C(Adult Refusal of Medical Treatment) [1994] 1 WLR 290; [1994] All ER 819.659 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

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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

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

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.

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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.

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

663 R (on the application of Pretty) v. DPP and Another [2001] EWHC Admin 788.664 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.

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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

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

668 R (on the application of Pretty) v. DPP and Another [2001] EWHC Admin 788 at para. 5.669 ibid., at para 14.

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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

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

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.

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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

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:

676 R (on the application of) Purdy v Director of Public Prosecutions & Another [2008] EWHC 2565 at 6.677 ibid., at 9.678 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.’

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‘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

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

679 R (on the application of) Purdy v. Director of Public Prosecutions & Another [2008] EWHC 2565 at 12.680 ibid.

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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.

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

681 ibid., at 39.

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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 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

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 270.684 ibid., at 13.

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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.

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

685 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.

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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

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

689 ibid., at 3.690 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 12.693 R ibid., at 12.

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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

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

694 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 16.698 ibid., at 25.

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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

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

699 ibid., at 39.

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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.

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:

700 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).

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‘...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

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

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).

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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

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

707 op. cit., n. 673.

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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 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.

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.720 ibid.721 ibid.

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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

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)

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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

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:

722 ibid.723 ibid.724 ibid.725 ibid.726 ibid.727 ibid.

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'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.

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

728 Buxton R, (1988) ‘Some simple thoughts on intention’ Criminal Law Review 484.

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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.

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

729 op. cit., n. 673.

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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

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,

730 ibid.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.

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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

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

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 2009.735 Young R, Medically Assisted Death (Cambridge: Cambridge University Press 2007).736 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.

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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

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

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).

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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

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 non-voluntary 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.

742 Schauer F, (1985) ‘Slippery Slopes’ 99 Harvard Law Review 363-369.743 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. 23-35.746 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.

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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

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

750 Smith W J, Forced Exit (Dallas: Spence Publishing 2003) at pg. 111.751 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).

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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

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. 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 Examined: Ethical, Clinical and Legal Perspectives (Cambridge: Cambridge University Press 1995) at pg. 24.754 Finnis J, (1995) ibid., at pg. 24.

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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.

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 755 Young R, (2007) op. cit., at pg. 184.

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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

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 756 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. 197.760 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.

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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

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,

764 Onwuteaka-Philipsen B D et al, (2003) op. cit.765 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.

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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 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 fourth-category 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.

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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 1990 1995 2001 2005No. of studied deaths 5197 5146 5617 9965Practice that possibly hastened death (%)Euthanasia 1.7 2.4 2.6 1.7Assisted suicide 0.2 0.2 0.2 0.1Ending life without explicit request by the patient 0.8 0.7 0.7 0.4Intensified alleviation of symptoms 18.8 19.1 20.1 24.7Withholding or withdrawing of life-prolonging treatment

17.9 20.2 20.2 15.6

Continuous deep sedation 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.

768 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.

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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,

‘...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

769 van der Heide A et al (2007), op. cit., at pg. 1957.770 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.

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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 eugenics-

based 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

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.

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. 347-361.775 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.

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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 non-

physical illness, as there was no corroborating evidence from a medical expert who

had personally examined the patient.

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

777 Griffiths J, (1995) ibid., at pg. 247.

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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

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.

778 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’.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.

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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

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 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 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.

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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

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.

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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

786 R (Purdy) v. DPP (2009) EWCA Civ 92.

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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.

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

787 R (On the application of Burke) v. General Medical Council [2004] EWHC 1879; [2005] QB 424 at 51.

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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

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

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.

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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

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

794 Gillon R, (1999) op. cit., at pg. 61.795 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 1.796The 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.797Gillon R, (1999) op. cit., at pg. 62.

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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

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

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 59.800 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.

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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

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

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 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).

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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

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

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.813 Biggs H, (2001) op. cit., at pg. 96.814 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.

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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

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 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 18.817 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 16th July 2009 at 13:44pm).

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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

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

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. 270-271.823 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.

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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

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

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 51.829 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.

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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

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

833 Dupré C, (2006) ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity?’ 6 European Human Rights Law Review 678.834 Glass v. United Kingdom (Application No. 61827/00) (2).835 R (Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006] QB 273 at 51.

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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

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:

836 ibid., at 178.837 See http://www.dignityindying.org.uk/ (accessed on 9th July 2009 at 15.45pm).838 Liberty, ‘First Ever Right-to-Die Case Under the Human Rights Act’, Press Release, 20 th of August 2001, available at http://www.liberty-human-rights.org.uk/press/press-releases-2001/first-ever-right-to-die-case-under-human-rig.shtml (accessed on 14th July 2009 at 12:02pm).

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‘…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

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

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_euthanasia_en.html (accessed on 16th July 2009 at 14:57pm).840 Horton R, (2004) ‘Rediscovering Human Dignity’ 364 The Lancet 1081.841 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.

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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 non-

person), 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

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

846 ibid., at pg. 45.847 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.

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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

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.

851 Interview with ‘Doctor 9’ by Edwards. J conducted on 27th November 2009.852 ibid.

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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

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 non-

voluntary 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.

853 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.854 Otlowski M, (1997) op. cit., at pg. 203.855 See Kohl M, The morality of Killing: Sanctity of Life, Abortion and Euthanasia (London: Peter Owen 1974) at pg. 106.

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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

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,

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).858 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

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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

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 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 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.

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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

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

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.867 Interview with ‘Doctor 13’ by Edwards. J conducted on 1st February 2010.868 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.

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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.

‘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

870http://www.gallup.com/poll/23356/Public-Continues-Support-RighttoDie-Terminally-Ill-Patients.aspx (accessed on February 10th 2011 at 19.31pm).

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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

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

871 In Otlowski M, (1997) op. cit.

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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

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

872 Interview with ‘Doctor 2’ by Edwards. J conducted on 15th April 2009.873 http://www.dailymail.co.uk/news/article-393143/Assisted-suicide-legal-say-doctors.html (accessed on July 14th 2009 at 16.28pm).874http://www.dailymail.co.uk/news/article-1102953/Gordon-Brown-totally-relaxing-law-assisted-suicide.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).876http://www.dailymail.co.uk/health/article-1181438/Nurses-dilemma-surge-assisted-suicide-requests.html (accessed on July 14th 2009 at 16.25pm).

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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:

‘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

877http://www.telegraph.co.uk/news/newstopics/debates/6129848/Are-we-killing-our-elderly.html (accessed on September 20th at 14.59pm).878http://www.telegraph.co.uk/comment/letters/5990950/Individual-choice-on-euthanasia-is-more-important-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-and-is-an-affront-to-Western-humanism.html (accessed on September 20th at 15:16pm).

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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

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;

880 Address of John Paul II to the Participants in the 19 th International Conference of the Pontifical Council for Health Pastoral Care, Friday 12th November 2004, available at http://www.vatican.va/holy_father/john_paul_ii/speeches/2004/November/documents/hf_jp-ii_spe_20041112_pc-hlthwork_en.html (accessed on 17th July 2009 at 13:03pm).

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1. that reform would be against the will of God, 2. that it offends the sanctity of life,3. that it goes against the prohibition on intentional killing and, 4. 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.

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 Judeo-

Christian 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

881 Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: Routledge-Cavendish 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. 177-192882 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).

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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

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

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. 431.886 ibid., at pg. 431.887 Interview with ‘Doctor 4’ by Edwards. J conducted on 3rd September 2009.

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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.

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.

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).

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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

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

895 Gula R, (1987) ‘Euthanasia: A Catholic Perspective’ 68 Health Progress 28 at pg. 29.896 Sheppard S, Selected Writings of Sir Edward Coke (Liberty Fund 2003).

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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

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 897 Kluge E W, The Ethics of Deliberate Death (Port Washington, New York: Kennikat Press 1981) at pgs. 31-32.898 Lavi S, (2001) op. cit.899 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.

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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

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

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).

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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-

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 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 507.908 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.

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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

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

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.

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them to see if it’s improving things, so you perhaps feel that you’ve at least tried...”912

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

912 Interview with ‘Doctor 4’ by Edwards. J conducted on 3rd September 2009.913 An interview with Baroness Warnock conducted by Edwards. J on 19th November 2007.914  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 3rd September 2009.916 Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 868.

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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:

‘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

917 Otlowski M, (1997) op. cit.918 Interview with ‘Doctor 4’ by Edwards. J conducted on 3rd September 2009.919 Interview with ‘Doctor 3’ by Edwards. J conducted on 27th June 2009.

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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

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

920 Interview with ‘Doctor 3’ by Edwards. J conducted on 27th June 2009.921 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.

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involuntary euthanasia followed the same downward trend, with 0.7% occurring in

2001 as opposed to 0.4% in 2005.924

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

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.925 van der Heide A et al, (2007) op. cit., at pg. 1959.926 van der Heide A et al, (2007) op. cit., at pg. 1961.927 These figures were extrapolated from van der Heide’s statistical evidence.

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greater risk of damage from the more common kinds of procedure that can end in

death than it is from PAS and euthanasia.

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 Ending life without Explicit Request by Patient

2001

Ending life without Explicit Request by Patient

2005No. of deaths studied 58 24

Discussion of practice (%)With patient (or previous

wish of patient)26.5 60.0

With relative of patient 100.0 80.9With more than 1 other

physician65.2 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

928 van der Heide A et al (2007), op. cit., at pg. 1963.

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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

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

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 21st October 2009.

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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 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 931 Interview with ‘Doctor 10’ by Edwards. J conducted on 18th March 2010.932 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 15th 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.

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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.937 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).

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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.

Chapter 7939 See chapter 4 of this thesis for discussion of the sanctity of life, specifically section 4.2.1.

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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 1949-53: 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 2.950 Sheldon S and Thomson M (eds), Feminist Perspectives on Health Care Law (London: Cavendish Pub. Ltd 1998).

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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 non-

prosecution, 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

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.

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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

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 quasi-

legal 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.

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’.957 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).

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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

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

961 An interview with ‘Doctor 7’ by Edwards J conducted on 21st 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.

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evidences jurisprudential favouritism for their use in cases where ‘mercy’ is cited as

the motive behind a murder.964

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

964Heginbotham: 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-wife-mercy-killing-freed-jail-appeal-judges.html (accessed on 21st February 2011 at 12.46pm); 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.

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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

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 971 Williams G, (2007) op. cit., at pg. 184.972 See for example section 12 of the Criminal Justice Act (2003).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.

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adequately dealt with in section 2 itself, and that including them within the Act would

require more scope for elaboration than its ambit allows.

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

975 The Society of Labour Lawyers’ evidence to the Royal Commission on Capital Punishment 1949-53: para 180.976 Brazier M, (1992) op. cit.

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physician-defendant. These defences, section 5.1 posited, would be either over-

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/personal-view/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.

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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 6.4.984ibid.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

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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.

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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

992 ibid., at pg. 1333.993 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.

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called mercy killing.’1000Ambrose, the defendant in a case like Sawyer and King, was

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

1000 The Times 16 October 1953 op. cit.1001 Roland J, ‘Manslaughter son is jailed’ Evening Post (Nottingham) 1989.1002 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 19461006 ‘Daughter freed over mercy killing bid’ The Evening Standard 28 September 2001.

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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 self-

administered 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

1007 Pratt C, (1974) ‘For beloved Emma, a painless death’ Daily Express 26 October 1974.1008 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-injection-jail-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.

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further two doses of morphine through the syringe-driver. Lynn died some 30 hours

after she asked her mother to help her die.

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.

1015 ibid; Op. cit. n. 975.

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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

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

1016 Huxtable R, Euthanasia, Ethics and the Law: From Conflict to Compromise (London: Routledge-Cavendish 2007) at pg. 47.1017 ibid., at pgs. 47-48.1018 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.

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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

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 1020 Carter H and Khaleeli H, (2004) op. cit.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.1023http://www.telegraph.co.uk/comment/personal-view/3621791/Killing-your-son-is-not-proof-of-love.html (accessed on November 1st 2010 at 10.24am).1024http://www.telegraph.co.uk/news/uknews/1466543/100-year-old-cut-his-ailing-wifes-throat-in-act-of-love.html (accessed on November 2nd 2010 at 13.50pm).1025 Op. cit., n. 974.

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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

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

1026 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.

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3. A complete lack of violence of any kind1033, and;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

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)

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testimony of the physician himself. That is not to imply however that referencing

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

1037 Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (2010) section 43(6).

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of chapter 5 of this work does in relation to AS, to put together a composite of the

‘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

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 14th Report (1980) op. cit.

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defendants, but its nature as an offence precluded the exclusion of certain persons

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 practitioner-

defendant 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

option, yet in its 1977 Report ‘Criminal law Report on defences of general 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.

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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 'Feel-

Good 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 1044 Law Com Working Paper No. 55 (1974) Codification of the criminal law. General principles and defences of general application.1045 Law Com No. 83 (1977) Criminal law. Report on defences of general application.1046 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.

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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

intervention to save J’s life at the cost of her sister’s, or debarring the physicians from 1050 R v. Dudley and Stephens (1884) 14 QBD 273.1051 Re A (Conjoined Twins: Surgical Separation) [2001] Fam. 147 (Court of Appeal, Civil Division) at 239.1052 ibid., at 239.

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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

prohibition on using necessity as a defence to murder imposed in the Dudley case1056

will still be operative, and the defence will fail.

1053 ibid., at 239.1054 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.1056 R v. Dudley and Stephens (1884) 14 QBD 273.

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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.

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

1057 See specifically chapter 4 section 4.3.1058 Ost S, (2005) op. cit.

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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

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

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 24.1063 A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.1064 The jurisdictions under scrutiny are Australia, Belgium, Oregon, England and Wales the Netherlands and Switzerland.

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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

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

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).

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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

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.

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).

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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

identifying problems inherent in legalising the practice, would conclude that outright

legalisation is the most appropriate method of changing the law.1080 Anti-euthanasia

1079 The defences of self defence, insanity and automatism for example can excuse an otherwise inexcusable use of violence.1080 Otlowski M, (1994) ‘Active Voluntary Euthanasia: Options for Reform’ 2 (2) Medical Law Review 161 at pgs. 202-203.

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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:

‘...the patient is in a medically futile condition or constant and unbearable physical or mental suffering that cannot be alleviated,

1081 Mclean S A M, Assisted Dying: reflections on the need for law reform (Abingdon: Routledge-Cavendish 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.

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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 necessitate the creation of a separate set of safeguards to ensure that the possibility of abuse was minimised.

1084 The Belgian Act on Euthanasia (2002) section 3(1).1085 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.

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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

since Lord Joffe’s first draft of his Bill in 2004, which encompassed both forms of

1087 Oregon Death with Dignity Act (2002).1088 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).

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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.

Chapter 8

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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 Belgium Netherlands Oregon Switzerland England and Wales

Doctor personally assists?

Yes: s.4 Yes: s.3(1) Yes: art.2(1) Yes: s.1.01 (2); s.3.01.

No: Criminal Code does not specify.

Yes: s.2(1)

Conscientious objection? Yes: s.5 Yes: s.14 No explicit mention.

Yes: s.4.01(4) N/A Yes: s.7(1)

Compelled to transfer patient to another doctor if unwilling to assist?

No: s.29 Yes: s.14 No explicit mention.

No: but see s.4.01(4)

N/A Yes: s.7(2);

s.7(3)

Second opinion? Yes: s.7.1(c) Yes: s.2(3); s.3(1)

Yes: art.2(1)(e) Yes: s.1.01(4); s.3.02

N/A Yes: s.2(3)

Reporting? Yes: s. 13; s.14 Yes: s.5; s.6-s.13

Yes: art.3-art.19 Yes: s.3.11 As any criminal case would be.

Yes: s.14

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8.1.2 Table 2: Patient related issues

Australia Belgium Netherlands Oregon Switzerland England and Wales

Terminally ill? Yes: s.3; s.4; s.7(1)(b)(i)

Questionable: s.3(1) ‘medically futile’

No clear indication. Yes: s.1.01(12); s.2.01

Nothing in the Criminal Code.

Yes: s.2(2)(c)

Voluntary? Yes: s.4; s.7(1)(j)

Yes: s.3(1) Yes: art.2(1)(a) Yes: s.1.01(7); s.2.01

Art. 114 details the offence of ‘killing on request’.

Yes: s.2(2)(f); s.2(3)(f)

Suffering-objective/subjective?

Subjective: s.4 Objective: s.3(1) Objective: art.2(1)(b)

Objective: s.2.01

N/A Subjective: s.2(2)(d)

Age of majority? Yes: s.7(1)(a) Yes: s.3(1) No: art. 2(2); 2(3); 2(4)

Yes: s.1.01(1) N/A Yes: s.1(2)

8.1.3 Table 3: Miscellaneous sections

Australia Belgium Netherlands Oregon Switzerland England and Wales

PAS or Euthanasia?

(P)AS: s.7(1)(p) Euthanasia: s.2 Both PAS and euthanasia: art.2(1)(f)

PAS: s.2.01 Art.114 and 115 concern (P)AS

PAS: s. 1(2)

Waiting period? Yes: s.7(1)(i) 7 days minimum

One month: s.3(3)(2)

No explicit mention

Yes: s.3.08 15 days minimum in repeating oral request

N/A Yes: s.1(2)

Psychological assessment?

Yes: 7(1)(c) Yes: s.3(3)(1) No explicit mention

Non-compulsory: s.3.03

N/A Non-compulsory: s.8

Certificate of request?

Yes: s.7(1)(i),(j),(k),(l)

The request must be in writing: s.3(4)

No explicit mention

Yes: s.2.02 N/A Yes: s.4; s.6

How the Act/section changes the law.

Legalises PAS in accordance with the Act.

Legalises euthanasia in accordance with the Act.

Provides immunity from prosecution so long as the due care criteria are followed

Immunity from prosecution if Act is followed in good faith

Compassionate motives render unlawful assistance in suicide permissible

Assisted suicide still illegal-immunity granted if Act followed

Governing body? The coroner: s.14; s.15

s.6(1) creates the Federal Control and Evaluation Commission.

Regional review Committees: art.3-art.19

The Department of Human Services: s.3.11

N/A Monitoring commission: s.14

Effect on insurance?

Remains unaffected s.18; s.19

Remains unaffected: s.15

No explicit mention

Remains unaffected: s.3.13

N/A Remains unaffected s.12

8.2 Evidence from interviews

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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

Acts/Omissions? Intention/Foresight? Pro/Anti reform? As to column 3, why? Is reform an option?D1 Recognises the

distinction.N/A Pro The law is years out of

date. Each individual has the right to decide about AS/EU.

The law needs ‘turning upside down’.1091

D2 Recognises the distinction.

Recognises the distinction.

Anti It would be impossible to regulate the practice.

Reform would not make the law clearer.1092

D3 Was a little confused by the distinction and cited Dignitas, Daniel James and Dianne Pretty.

Recognises the distinction.

Pro Experience in the Netherlands shows that a workable system is possible.

We should follow the example of the Netherlands.1093

D4 Recognises the distinction. Concedes the MSB has a point, but it is not D4’s point of view.

Recognises the distinction.

Anti The danger posed by a slide into eugenics is too great to risk.

N/A1094

D5 Recognises the distinction. D5 is not against withdrawing treatment but will not administer treatments to end life.

Recognises the distinction.

Anti Religious objections given to reform.

No chance of reform. Diametrically opposed to it.1095

D6 Passive euthanasia does happen in D6’s opinion and active euthanasia has a place in the future.

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

D7 Didn’t see much of a distinction between acts and

Recognises the distinction.

Pro Pro with qualifications: uncomfortable with the effect on the doctor’s

Felt that a separate branch of medicine should deal with AS/EU.1097

1091 An interview with ‘Doctor 1’ by Edwards. J conducted on October 23rd 2008.1092 An interview with ‘Doctor 2’ by Edwards. J conducted on 15th April 2009.1093 An interview with ‘Doctor 3’ by Edwards. J conducted on 27th 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 17th 2009.1096 An interview with ‘Doctor 6’ by Edwards J conducted on 14th September 2009.

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omissions. role.D8 Recognises the

distinction.The distinction is tantamount to ‘dancing on the end of a pin.’1098

Anti Pro with qualifications: uncomfortable with the effect on the doctor’s role.

Greater clarity would be welcomed – legislative or otherwise.1099

D9 Recognises the distinction though spoke in terms of intention, not actions and omissions, in making the distinction.

Recognises the distinction.

Anti It would be impossible to regulate. It is the doctor’s role to promote health.

Legislative reform is not the only change needed if society is to accept AS/EU.1100

D10 Recognises the distinction but is more comfortable with omitting treatment.

Recognises the distinction.

Pro It is the doctor’s job to promote health and treat illness, not prolong life.

N/A1101

D11 Recognises the distinction.

Recognises the distinction.

Anti There is a clear difference between AS/EU and therapeutic treatments.

It would be incredibly difficult to regulate the practice were it legislated for.1102

D12 Recognises the distinction.

Recognises the distinction.

Agnostic There are benefits and burdens on both sides.

Perceived an inequality between patient demographics and access to AS/EU that reform could solve.1103

D13 Recognises the distinction.

Recognises the distinction.

Anti It is not the ethos of the palliative care movement to promote AS/EU.

N/A1104

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

physicians who find themselves dealing with a patient who seeks assisted dying, and

1097 An interview with ‘Doctor 7’ by Edwards J conducted on 21st October 2009.1098 An interview with ‘Doctor 8’ by Edwards. J conducted on 10th November 2009.1099 An interview with ‘Doctor 8’ by Edwards. J conducted on 10th November 2009.1100 An interview with ‘Doctor 9’ by Edwards. J conducted on 27th November 2009.1101 An interview with ‘Doctor 10’ by Edwards. J conducted on 18th March 2010.1102 An interview with ‘Doctor 11’ by Edwards. J conducted on 19th March 2010.1103 An interview with ‘Doctor 12’ by Edwards. J conducted on 7th January 2010.1104 An interview with ‘Doctor 13’ by Edwards. J conducted on 1st February 2010.

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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

trend in defining its extent. This restrictiveness implies that, while the

1105 Oregon Death with Dignity Act (1997).1106 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).

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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 non-

physician 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…’

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

1110 Oregon Death with Dignity Act (1997) section 127.890 §4.02 ss. 1-41111 See for example sections 5(4)(b) and 6(2)(b) of the Assistance In Dying Bill (2011) in appendix 1.

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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 self-administration, and the administration of a substance to the patient.’

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

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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

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,

1112 Oregon Death with Dignity Act (2002) section 127.805 s. 2.011113 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.

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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.

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’1116 R (on the application of Purdy) v. DPP [2009] UKHL 45.

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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

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

1117 The phrase ‘reasonable medical judgement’ is to be interpreted as requiring the same standard of reasonableness expected under the Bolam and Bolitho tests.

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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

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 1118 Rights of the Terminally Ill Act (2002) s.3.1119 Oregon Death with Dignity Act (1997) s.127.800 s. 1.01(2)

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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

‘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

1120 The Belgian Act on Euthanasia (2002) section. 11121 HLSC (2005) Report on the Assisted Dying for the Terminally Ill Bill 2004, HL Paper 86-I, at para 170.1122 ibid., at para. 170.1123 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).

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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.

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

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).1128 See for example the critique by Keown J, (2007) ‘PAS: Lord Joffe's Slippery Bill’ 15(1) Medical Law Review 126-135

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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

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:

1129 Bolam v. Friern HMC [1957] 2 All ER 118.1130 Bolitho v. Hackney HA [1997] 4 All ER 771.

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‘…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

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

1131 HLSC (2005) op. cit., at para 128.1132 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).

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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

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

1135 HLSC (2005) op. cit., at para 269(c)(v)1136 ibid at para 129.1137 ibid at para 129.1138 ibid at para 130.1139 Office of Public Prosecutions v. Chabot (1994) Nederlandse Jurisprudentie 656.

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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

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

1140 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.1144 Further discussion of this topic will take place in sections 8.3.2(e) and 8.3.2(e)(i) of this chapter.

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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.

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

1145 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.

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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.

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.

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. 1149 Brazier M, Medicine, Patients and the Law (Harmondsworth, UK: Penguin Books 1992) at pg. 941150 Recall the discussion of the need for consent to treatment for it to be lawful.

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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

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 olds1152 and subsection 4 to

competent 12 to 16 year olds,1153 In order to qualify the patient must be deemed to

1151 Belgian Act on Euthanasia (2002) s.1: ‘…the patient has reached the age of majority or is an emancipated minor…’ (emphasis added).1152 ‘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.’

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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’

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

1154 Gillick v. West Norfolk & Wisbech AHA [1985] 3 All ER 402, HL.

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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.

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

1155 Section 7(1)(j) of the Australian Rights of the Terminally Ill Act (2001).1156 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).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…’.

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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,

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.

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]’.1162 A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.

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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 Physician-

Assisted 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?

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):

1163 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 629.1166 ‘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.’

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‘…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:

‘...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

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 126.1170 Section 3(1) of the Belgian Act on Euthanasia (2002).

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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 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

1171 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.

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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

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.

1174 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.

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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.

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

1178 ibid.1179 Assisted Dying for the Terminally Ill Bill (2004) s.1(2).

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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 compliance-

innocence 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

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

1180 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...’1181 Oregon Death with Dignity Act (1997) section 127.800 ss1.01(2)1182 Oregon Death with Dignity Act (1997) section 127.800 ss1.01(4)

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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:

‘(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

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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).

8.3.3(a) The Quandary of Conscientious Objection

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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

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

1183 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. 1131187 HLSC (2005) op. cit., at para. 1131188 A telephone interview with Lord Joffe on 15th July 2007 by Edwards. J.

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‘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.

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

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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 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

1189 Rights of the Terminally Ill Act (2001) s.20(5)

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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

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,

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‘(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:

1. it caused an unacceptable impingement on the patient’s autonomy; 2. 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.

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.

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

1190 Emanuel E J, (1999) ‘What Is the Great Benefit of Legalising Euthanasia or Physician-Assisted Suicide?’ 109 Ethics 629.1191 HLSC (2005) op. cit., at para. 84

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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.’

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.

1192 ibid., at para. 851193 ibid., at para. 871194 Emanuel E J, (1999) op. cit., at pg. 629.

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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 compliance-

innocence 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

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

1195 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.’

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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,

‘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.’

1196 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.

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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 General1200 or a

Health Commission1201 to review to cases referred to them under the Act. The depth

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 1198 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 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]

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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

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

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’.

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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;

‘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.

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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.

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

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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;

‘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

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).1208 ibid., clause 8(6)(a) through 8(6)(d).

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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

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.1209 ibid., clause 8(9).

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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

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.

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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

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 1210 An interview with ‘Doctor 4’ by Edwards. J conducted on 3rd September 2009.1211 An interview with ‘Doctor 3’ by Edwards. J conducted on 27th June 2009.1212 An interview with ‘Doctor 1’ by Edwards. J conducted on October 23rd 2008.1213 An interview with ‘Doctor 8’ by Edwards. J conducted on 10th November 2009.1214 An interview with ‘Doctor 12’ by Edwards. J conducted on 7th January 2010.

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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

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.

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 27th June 2009.1218 An interview with ‘Doctor 4’ by Edwards. J conducted on 3rd 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 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 1st February 2010.

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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

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

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 21st

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.

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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.

Appendix 1

The Assistance In Dying Bill (2011)

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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 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,

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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 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.

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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.(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.

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(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.(f) ensure that the patient, prior to the administration of PAS, signs an

attested declaration which can be revoked at any time.

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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) how the patient’s palliative care is progressing.(b) his/her diagnosis/prognosis as it progresses over time.(c) the alternatives to PAS.(d) his/her family situation.(e) suggestions for future courses of palliative care.

8 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.(b) he has nothing to gain, pecuniary or otherwise, from the patient’s

death.

(6) Those people who cannot witness the declaration:

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(a) any person with a pecuniary interest in the patient’s death.(b) the primary physician.(c) the secondary physician.(d) 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.

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

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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-

(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

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(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.

(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.

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(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 sub-clause 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.

(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

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(1) This Bill may be cited as the Assistance In Dying Bill 2011.

(2) This Bill does not extend to Northern Ireland.

SCHEDULEFORM 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.

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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) I am independent of the patient and his/her family(b) I have nothing to gain from the patient’s death(c) The patient has provided proof of his/her identity to me(d) 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

Signed: _________________________________ (Witness 1)

Date: _________________________________

I declare that I:

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(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.

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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.

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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.

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.

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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.

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).

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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).

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