National and European End of Life Laws

Introduction

Today, 24[1]000 people are reported to be in a vegetative or minimal conscious state in the United Kingdom. Medical advances have increased life expectancy and also made it possible to artificially maintain the lives of patients in comas that are considered irreversible. By these means, in developed countries and since the 2000s, there has been an increasing number of people who want the choice to decide for themselves when they will die.

The issue of euthanasia has become increasingly important since the end and beginning of the 21st century. Some countries have decriminalized active euthanasia, such as Belgium or the Netherlands, or even allowed assisted suicide, such as Switzerland.

Thus, a Europeanisation of legislation on the end of life seems more than hypothetical. The issue of euthanasia has not been studied by the European Parliament.

As for the European Court of Human Rights, it has ruled several times, notably on 29 April 2002 in the case of Pretty C. United Kingdom[2]. In that judgment, Articles 2, 3, 8, 8, 9 and 14 were raised by the applicant. The Pretty v. United Kingdom case provides a better definition of the contours of these articles.

The United Kingdom has some legislation on end-of-life care. There are two criminal laws: the Homicide Act of 1957 and the Suicide Act of 1961 and several judgments concerning the interruption of artificial feeding and hydration of a patient who was in a vegetative state (Airedale NHS Trust V. Bland[3]).

More recently, in An NHS Trust and others v Y and another[4], the judges specified under certain conditions that recourse to a court to stop the care of a patient in a vegetative state was not mandatory.

Before studying the law and the judgments in more detail, it is important to define the terms of the subject. There are several ways to end the life.

• The first is the suicide with the Suicide Act[5], which decriminalizes suicide and its attempt.
• Second, there are active or passive euthanasia, which is implied in the Homicide Act[6]. In 1957, both types of euthanasia were considered to be murder with a softer penalty, when one person kills another in accordance with a suicide pact concluded between them[7].
  • On the first hand, active euthanasia involves the act of a third party who administers a lethal substance to a patient in order to cause immediate death.
  • On the other hand, passive euthanasia refers to the renunciation of drug treatments, the interruption of food or artificial hydration or the administration of opiates or high-dose sedatives, which can put the patient in a coma and cause death after a few days.
• Third, assisted suicide occurs when a third party provides the patient with a deadly substance that the patient administers for himself. This is the path Switzerland has chosen.
• Finally, the persistent vegetative state: it is characterized by the absence of any behaviour indicating conscious activity: language, significant behavioural response, clearly voluntary behaviour.

In the most concrete cases, we note that passive euthanasia is carried out in the case of seriously ill patients. These patients have a persistent vegetative state. In this case, patients are locked in their bodies, they can only control a tiny part of it, breaking most communications with other people. It is therefore quite conceivable that this state is desperate. Therefore, the problem related to the patient’s end-of-life is of a great importance.

However, it is impossible for the patient to kill himself by his own means. If that were the case, we would call it a suicide and the problem would be solved. In fact, for this type of patient, a person must be able to help him kill himself. Consequently, certain conditions must be met in relation to the medical profession.

This essay is based on the statement of Dr. Peters Saunders, who had expressed some hesitations about the solution provided by the judges. In An NHS Trust and others v Y and another, Mr Y suffered a cardiac arrest in June 2017, this man was in a vegetative state and required nutritional and moisturizing care to be kept alive. According to the medical staff, his chances of regaining consciousness were minimal and, if so, the risks of severe disability were very high. His family and doctors then chose to remove his nutrient tube and let him die. The NHS Trust went to court to declare that it was not mandatory to obtain a judicial declaration to stop care if the medical profession and family agreed. The court answered in the affirmative way.

Before understanding the motivations and contribution of this statement (II), it is important to understand the notion of end of life in the light of national and European texts and decisions (I).

The legal framework of the end-of-life concept

The difficulty of this subject lies in the definition of acts to kill oneself. Indeed, according to each act, it is possible to predict whether or not it is illegal or not, but also whether it is contrary to international principles.

• The act may emanate from the person himself:

In this case, the United Kingdom legislation is followed with the Suicide Act of 1961. This law allowed the decriminalization of suicide and its attempt.

Unfortunately, there are cases where the person cannot kill himself or herself on his or her own. This is the case for patients in a persistent vegetative state.

• Thus, the help of a third party is required:

In this case, there are two main sections, euthanasia and assisted suicide.

• Assisted suicide in the United Kingdom may be illegal under certain circumstances. Indeed, the Supreme Court considers suicides to be accidents within the meaning of article 323c of the Criminal Code, which condemns failure to assist a person in danger in the event of an accident, general danger or necessity.

Consequently, in the event of suicide, only failure to assist a person in danger is liable to be punished (fine or prison sentence of up to one year).

Thus, complicity in suicide is legal in the United Kingdom. In other words, case law quite widely tolerates assisted suicide when the patient is physically able to perform the decisive action. On the other hand, it is very demanding in determining whether suicide has occurred in the case of people with severe disabilities.

• For people who cannot kill themselves by their own means, we will speak about euthanasia. In the United Kingdom, euthanasia is not a particular offence. She is prosecuted on the grounds of murder, willful murder or assault.

Politicians prohibited all forms of euthanasia with the Homicide Act in 1957. It is true that at that time, cases of patients suffering from an incurable disease and remaining alive were rare due to the medical resources at this time.

With the evolution of medicine and the impetus of the judgments of the European Court of Human Rights, judges have relaxed this rule of law.

First, with Trust v. In Bland[8], the House of Lords ruled on the interruption of artificial feeding and hydration of a patient who had been in a persistent vegetative state since 1989, following an accident in a football stadium.

On this occasion, the court recalled the main principles that apply to all those who are confronted with the problem of euthanasia:

• the administration of a deadly substance is prohibited;
• the right of patients to refuse treatment is a fundamental freedom;
• this right to refuse treatment applies, including in situations where refusal may result in the death of the patient.

It is retained that active euthanasia is strictly prohibited but passive euthanasia is allowed. Before studying passive euthanasia, it is important to highlight a third form of euthanasia: indirect euthanasia. Jurisprudence has long allowed doctors to administer analgesic drugs, even though this has the predictable but unintended side effect (or double effect) of giving death.

In 1957, in the case of Dr. John Bodkin Adams[9], one of the first cases to be heard by the courts, the judge stated that “[a doctor] is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life”.

With regard to active euthanasia, the problem lies in the patient’s consent. Indeed, patients suffering from a persistent vegetative state cannot always express their consent due to the seriousness of the disease.

• Patients able of expressing valid legal consent

In Airedale NHS Trust v. Bland, Lord Mustill recalled that “paramountcy of the patient’s choice. If the patient is capable of making a decision on whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue”

The doctor cannot be prosecuted, both in civil and criminal proceedings, if he has clearly informed the patient about the entire treatment, including its side effects, has faithfully answered all his questions and has ascertained the reality of his intention to die

• Patients who are unable to give their consent but who have drawn up a living will

In Airedale NHS Trust v. Bland, Lord Keith of Kinkel describes the right of a person to refuse treatment, even if his refusal causes his death, and adds “this extends to the situation where the person, in anticipation of his, through one cause or another, entering into a condition such as P.V.S., gives clear instructions that in such event he is not to be given medical care, including artificial feeding, designed to keep him alive”.

• Patients who are unable to give their consent and who have not drawn up a living will

When the patient is in a persistent vegetative state, it is legal to stop taking drugs, especially antibiotics. In Airedale NHS Trust v. In Bland‘s view, the judges considered that it would have been appropriate, both ethically and practically, to discontinue antibiotic treatment as soon as there was an agreement to that effect between the medical team and the family.

In the present case, the Court also authorised the cessation of artificial feeding and hydration. However, the legality of stopping artificial feeding and hydration is not clearly established and the British Medical Association advises doctors to obtain a court decision beforehand.

This court decision is therefore no longer mandatory following the judgment of An NHS Trust and others v Y and another.

The notion of end-of-life is not only based on methods but also on principle. In other words, the question is whether we have the choice to decide our death.

Thus, the right to life is a fundamental right enshrined in various international texts. The article 2 of the European Convention for the Protection of Human Rights provides that “everyone’s right to life shall be protected by law“. This general rule implies that each State must include in its legal arsenal laws aimed at protecting human life. In addition, the article provides a framework for the means by which the right to life may exceptionally be violated.

This article 2 is the first source of controversy on euthanasia. Euthanasia does not appear directly in the text. As a result, the court was repeatedly asked for this question. As the judgments progressed, it refined the principle of the right to life.

In particular, in Pretty v. the United Kingdom[10]. This judgement raised several articles of the convention. One of the important questions was whether the right to life in article 2 is a corollary principle to the right to death. The applicant, who was suffering from a serious incurable disease, requested that her husband help her die. However, at that time in the United Kingdom, helping a person to die was considered assisted suicide and therefore illegal. The husband could therefore be prosecuted. The European Court of Human Rights held that Article 2 could not be interpreted as a right authorising death.

The Court refused the applicant’s argument but did not condemn euthanasia. It considers that these are matters for the free appreciation of States but that there is no right to die.

The second source of controversy is Article 3 of the European Convention on Human Rights. It provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment“. This article was raised in Pretty v. the United Kingdom. Indeed, patients at the end of their lives suffer enormously and it is the responsibility of each State to take positive measures to prevent this suffering.

The article 14 of the Convention was also raised in Pretty V. United Kingdom case. This is interesting because Article 14 lays down the principle of the prohibition of discrimination. Indeed, the applicant had argued that suicide was legal in the United Kingdom and that the State refused to allow her to commit suicide. The court held that suicide was legal when it was done by the person himself and not by a third party even in the case of a major disability.

The article II-2 of the Charter of Fundamental Rights of the European Union that “everyone has the right to life“. This sentence is as general as Article 2 of the European Convention for the Protection of Human Rights. However, the Court of the European Union (28 countries), ensures compliance with the Treaties and European law, and can sanction all violations of them, whether they come from the European institutions, governments, companies or individuals person. It has a monopoly on the interpretation of European law throughout the Union. The decisions are binding. National judges must make it decide any doubt as to the meaning of a provision of European law.

Thus, in order to bring an action before the Court of the European Union, it is necessary to raise an illegality or inconsistency in the European Union treaties. As a result, its effectiveness is less than that of the European Court of Human Rights.

An unpragmatic statement

Dr. Peters Sanders pointed out that patients will suffer when care is stopped. It is understandable that discontinuation of care can be considered as degrading punishment or treatment. However, the time lapse between the cessation of care and the patient’s death is minimal compared to the months, years of suffering that the patient may experience.

In addition, he adds that a court decision provides an additional level of protection. It is true that a court decision makes it possible to better reflect on the relevance of stopping care. But first, as we have seen in the above judgments, the court decision was advised and not binding. In addition, it may take months to get an answer. This has the effect of causing potential suffering, thus the cost of judicial request is not very cheap.

With regard to the last point, on the fact that decisions may be taken for the wrong reasons. The answer here is more nuanced. Indeed, whether in the public or private domain, the misfortune of one is the happiness of the other. In other words, a deceased patient is a vacant bed for the hospital but also a legacy for the bereaved family.

However, the final decision must be made between the doctor, the patient and the patient’s family. As we have seen, it is possible that the patient had made his wishes known through his will, cancelling the margin of responsibility for the other two parties.

It is also possible that out of the 24,000 patients in vegetative states can communicate, thus reducing the margin of responsibility for the doctor and family.

It is only in the case where the patient has not expressed his wishes that Dr. Peters Sanders’ sentence makes sense. Fortunately, however, the doctor is subject to ethical and deontological rules. In France as in the United Kingdom, students must say the Hippocratic Oath. In France, this oath has legal force. Indeed, doctors are obliged to help people in difficulty, whatever the situation. This oath, inspired by the famous Dr. Hippocrates, imposes a duty of care on all doctors, thus preventing them from committing acts with regard to another aspect such as the financial aspect. Finally, the court decision is binding in all other cases. In other words, as soon as there is any doubt about the choice of the patient’s end-of-life, referral to the courts is mandatory.

Conclusion:

To conclude, the theme of the end of life is important and topical. The fact that there is no specific and common regime for these issues leads to judicial instability. There are many texts guaranteeing the right to life, such as Article II-2 of the Charter of Fundamental Rights of the European Union or Article 2 of the European Convention for the Protection of Human Rights. However, their common point is that they have been written in such a way that there are several interpretations, so that the texts can exist over time. It is therefore the responsibility of the European Court of Human Rights to refine the articles of the Convention on a case-by-case basis. In addition, the articles of the Convention are of a supranational nature and are directly applicable in the courts. It is therefore the duty of each State to comply with the solutions of the Court.

Bibliography

Primary sources:

Cases

• Airedale N.H.S. Trust v Bland [1993] A.C. 789
• An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant)[2018] UKSC 46
• R v Adams [1957] Crim LR 365
• Trust v. In Bland 1993 (A. C. 789)

Statutes and statutory instruments

• Article 323c of the Criminal Code
• Article 4 of the Homicide Act 1957
• Homicide Act 1957
• Suicide Act 1961

EU legislation and cases

• Article II-2 of the Charter of Fundamental Rights of the European Union
• Article 2 of the European Convention on Human Rights
• Article 3 of the European Convention on Human Rights
• Article 14 of the European Convention on Human Rights

European Court of Human Rights

• Pretty v. United Kingdom – 2002 (2346/02)

Secondary sources

Books

• Merris Amos Human Rights Law
• Jim L Murdoch Human Rights Law in Scotland

Journal articles

• Valentine Watrin « Fin de vie : le Royaume-Uni autorise médecins et familles à prendre des décisions sans la justice » 31/07/2018
• RFI « Royaume-Uni : une nouvelle loi pour la fin de vie » 31/07/2018

Websites and blogs

• Sénat français https://www.senat.fr/lc/lc49/lc49_mono.html#toc0

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[1] http://www.rfi.fr/europe/20180731-royaume-uni-une-nouvelle-loi-fin-vie-euthanasie

[2] Pretty v. United Kingdom – 2002 (2346/02)

[3] Airedale N.H.S. Trust v Bland [1993] A.C. 789

[4] An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellant)[2018] UKSC 46

[5] Suicide Act 1961

[6] Homicide Act 1957

[7] Article 4 of the Homicide Act 1957

[8] Trust v. In Bland 1993 (A. C. 789)

[9] R v Adams [1957] Crim LR 365

[10] Pretty v The United Kingdom: ECHR 29 Apr 2002