Euthanasia is a Contentious Area

Background Interest Information

Euthanasia is a contentious area and the debate is ceaseless, however it was recently highlighted by the success of Debbie Purdy in the House of Lords which has resulted in the Director of Public Prosecutions being required to publish guidelines for prosecutors in cases of assisted suicide, these guidelines refer specifically to those circumstances where assistance is given to a terminally ill or severely disabled patient. The role of doctor’s in caring for the terminally ill is given insufficient consideration in this debate despite the fact that it is crucial to any change in legislation or in the application of that legislation by the judiciary and executive.

Brief Rational Statement

The role of doctors is defined by both ethical and legal considerations and requires the doctor to respect the patient’s autonomy, respect the sanctity of human life, respect the relationship of trust that exists between the doctor and patient and promote the patient’s quality of life whilst being guided by the principles of beneficence and non-maleficence. There is growing public support for a relaxation of the law in relation to assisted dying for the terminally ill, reflected in the recent publication by the Director of Public Prosecutions of guidelines for prosecutors in cases of assisted suicide. There seems to be a conflict between the responsibilities of doctors and the practice of euthanasia which is being ignored in the current debate on the law surrounding assisted suicide.

Overall Research Aims

In the current debate on assisted dying little, if any, attention is paid to the role of medical practitioners, particularly doctors, in treating the terminally ill. The overall research aim of this project is to evaluate whether a doctor can offer assistance to a patient who has expressed a desire for an assisted death without acting contrary to the ethical and legal principles with define her duties as a doctor.

A doctor’s duties are much broader than whether or not her actions breach the criminal law, she is guided by the Hippocratic oath and a myriad of ethical and legal principles and doctrines which are so intertwined with her role and the practice of medicine that in order to reach any decision of legislative reform this package of duties and responsibilities needs to be carefully unpacked and explored.

It is hoped that by critically examining the duties and responsibilities of doctors and the legal and ethical framework within which the practice of medicine takes place the debate surrounding assisted dying can be furthered and any reforms, or proposals for reform, will not only be principled but also realistic. Deciding whether or not legislative reform is necessary is only part of the debate, how such policies will operate in practice is of crucial importance to ensure the protection of the interests of medical professional and the vulnerable patients in their care.

Individual Research Objectives

In order to answer the question some complicated issues need to be identified and discussed. The first aim of this dissertation will be to clearly define the parameters of the project by defining the question and the terms within it. Of primary importance is to define the term euthanasia, distinguishing between passive and active forms as well as voluntary, involuntary and non-voluntary forms. This project also intends to explain the relationship between these terms and the language of the law which recognises offences of murder, manslaughter and assisted suicide.

There is countless recourse to the language of bioethics by the judiciary, legislature, and executive and some of these bioethical principles impose legal obligations upon those practising medicine. This second aim of the project is to identify key ethical principles that influence the practice of medicine, such as autonomy and the sanctity of life doctrine, and analyse how these principles are reflected in both statutory and common law. This will enable an identification of where a doctor’s obligations of respect for autonomy and sanctity of life, trust, beneficence and non-maleficence come from and in what ways a doctor is legally and morally obligated to act in accordance with them.

The third aim of this project is to draw together these first two aims and consider whether there is a conflict between a doctor’s moral and legal obligations and offering assistance to a terminally ill patient who requests an assisted death. To achieve this the project will investigate the extent of a doctor’s duty to alleviate pain and suffering and promote quality of life.

The purpose of this project is to identify how the law should address any conflict that arises between the role of the doctor and euthanasia, particularly the practice of physician assisted suicide. The conclusion of this project will assess what a doctor’s duties are when there is a conflict between the principles that should guide the practice of medicine, such as respecting a patient’s autonomous wish to die whilst promoting the doctrine of sanctity of life. The conclusion will include a critical evaluation of the proposals for legislative reform from the perspective informed by the considerations of the duties of a doctor.

Proposed Dissertation Title

An assessment of whether euthanasia conflicts with the ethical and legal responsibilities of doctors and how the law should reflect this.

Preliminary Abstract

As a topic that generates debate, euthanasia can have few rivals. Raising issues such as the legality and morality of actively killing or allowing to die, the duties of a doctor, respect for autonomy, informed consent, distributive justice and resource allocation, euthanasia divides opinion. Nor is it a new concept, euthanasia has been discussed and probably practiced in some form in different cultures for centuries. Derived from the Greek eu thanatos meaning a good or easy death, the term euthanasia has had prefixes added to denote different relationships between the patient and for the purposes of this essay, the doctor. On the part of the patient it is considered that they may be voluntary, non-voluntary or involuntary depending on whether they request death, are unable to express an opinion or have no input into the decision at all. On the part of the doctor they can be considered to have played an active or passive role by way of an act or an omission that brings about the patient’s death. Advances in medical technology allow human life to be sustained almost indefinitely, certainly for decades, yet does being able to do so mean we always should? Are there other factors to consider besides a vitalistic approach in which life is said to have an absolute value and moral worth, where it is always wrong to either shorten life or fail to strive to prolong it? Is there ever a situation in modern society whereby the intentional taking of a human life by another can be justified?

Proposed Research Methodology

This dissertation will adopt a qualative doctrinal approach, being both critical and analytical in its methodology. The project will not involve the collection or collation of qualative data but will focus on a doctrinal analysis of the law and an assessment of the academic literature in this area.

To achieve a full understanding of the legal and ethical principles that underpin the regulation of medical practice this project will involve a ‘black-letter’ approach, analysing primary legal sources including case-law, legislation and guide lines. This approach will begin with a critical reading of Airedale NHS Trust v Bland which is the first case to allow for passive euthanasia of a terminally ill patient. Using online resources such as Westlaw it will be possible to identify many journal articles that have referred to this case and all the subsequent UK case law that has applied or distinguished it. The project will also involve an analysis of the Suicide Act (1961), focusing on the discretion afforded to the Director of Public Prosecutions (DPP) under section 2(4) and its application in the cases of Diane Pretty, Daniel James, and Debbie Purdy as well as the guidelines of the DPP for prosecutors in cases of assisted suicide.

Having gained an understanding of the law through analysis of these primary sources the project will then assess the critiques of the law offered by academics writing in refereed journals and monographs, it will focus on respected journals in the fields of medical law and applied ethics such as the Medical Law Review and Bioethics and monographs by revered academics such as Hazel Biggs, Peter Singer and Raanan Gillon. The focus of the research will be on primary sources, however some reference may be made to seminal textbooks in the areas of medical law and bioethics, such as Beauchamp and Childress’ book ‘Principles of Biomedical Ethics’ and McHale and Fox’s ‘Medical Law’.

Preliminary Literature Review

In this literature review I have cited the literature I have read as background to this project, most of what I have read so far has been book chapters and articles in refereed law journals on the case of Bland and the more recent judgment in Purdy.

As one of the main research aims of the dissertation is to consider the principles that underpin the regulation of medical law the first two pieces of literature discuss bioethical principles and how they have influenced medical law and practice. The first article I looked at discusses the doctrine of sanctity of life in the Bland judgment, while the second piece of literature is a book chapter which deals with the concepts of dignity and euthanasia.

In Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 Law Quarterly Review 481-503 the author argues that the sanctity of life doctrine provides for a sensible middle-way between vitalism and quality of life arguments. He argues that Bland marks a shift to the quality of life position, the judges holding that certain lives are not worthy of preservation. He argues that the traditional ethic of sanctity of life should be protected in the interests of the state. He holds that the judgment is centred on assessing the worthwhileness of Bland’s continued existence and that this is a move towards quality of life principles. Yet to insist that the state’s interest in preserving life imposes a positive obligation to preserve the lives of those in PVS would be to move towards a vitalistic ethic. He suggests that there are at least three competing ethical approaches to valuing life, namely vitalism; the sanctity of life; and quality of life. When he talks of the sanctity of life it is in a different way to the way the courts talk of it. He is talking of sanctity of life as a doctrine rather than an umbrella term incorporating all approaches that place a value on life due to it being in some way special, this is how the courts use the term. It is important to be aware of the distinction that the sanctity of life doctrine is different from the sanctity of life. He goes on to define sanctity of life as an often misunderstood concept, rooted in Judeo-Christian ethics and holding that life is to be protected from unjust attack.

In Boyle, ‘The Benefits of Continued Treatment’ in Euthanasia Examined: Ethical, Clinical and Legal Perspectives, Keown, (Cambridge University Press, Cambridge, 1999) pp.192-199 the author is discussing the concept of dignity, arguing that a patient in PVS has dignity and it is proper to respect this dignity;

Patients in PVS can be harmed by being killed, by being treated as spectacles or sex objects, by being used improperly for experimental purposes and so on. Most of these potential harms to patients in PVS fall into the category of indignities, that is, acts or omissions that harm by failing to respect the patient as a person. If indignities are harms to patients in PVS, then actions taken precisely to prevent or remove these indignities must be benefits to them. And so too must other actions taken precisely for the sake of respecting the personal dignity of these patients.

Boyle is arguing that one should respect the dignity of a patient in PVS because the patient is a person. He further argues that, because a person has dignity, to continue treatment respects that dignity and is therefore of benefit to the patient.

The next two articles I read were concerned with the law’s distinction between acts and omissions, this is because I was interested in how in Bland the courts drew such a stark distinction between killing and letting die and this distinction has certainly affected the practice of medicine and the role of doctors, which is key to this dissertation.

In Finnis, ‘Bland: Crossing the Rubicon?’ (1993) 109 Law Quarterly Review 329-337 the author argues that intention does not include all the effects of one’s actions that are forseeable, challenging the “academic lawyer’s gratuitously artificial notion that one’s intentions must include whatever effects of one’s conduct one foresees as certain” arguing instead that;

To desist from medical treatments designed to prevent, retard or cure illness, on the ground that for invalids such as Bland these treatments will achieve a benefit too limited to warrant this resort to medical resources, need involve neither intent to terminate life nor a will to cease caring for such invalids.

His conclusion seems intuitively correct and to withhold treatment because it will be of little benefit to the patient is legitimate. Yet his claim that if you pursue a set of circumstances with a certain outcome you do not intend to bring about that outcome is more contentious, yet one can imagine a number of examples in which an unwanted but foreseeable outcome of an action is certain but that other ends outweigh this unwanted outcome.

In Stauch, ‘Causal authorship and the equality principle: a defence of the acts/omissions distinction in euthanasia’ (2000) 26 Journal of Medical Ethics 237-241

The author defends the acts/omissions distinction arguing it is an important, moral distinction because of causal authorship holding that the doctor who withdraws treatment is not the author of death. His argument is based in his belief that life has an irreducible value and it is this irreducible value that upholds the moral distinction between killing and letting die because of his equity principle;

According to this, the life of each individual has an equal claim to a minimum respect by possessing irreducible value (ie a value that cannot be fully cashed out in terms of the life-holder’s own states of consciousness, pleasurable or otherwise). An agent who engages in active euthanasia (even at the behest of the deceased) fails to show this respect, for, in assuming authorship over that other’s death, he automatically accords his own life an ontological priority: he draws upon his own resources (for which his life is, of course, a precondition) in such a way as to extinguish the life of the other.

Stauch’s argument is based on the idea that in order to act one needs to be alive but for an omission to occur this is not necessary, the omission would still occur if one suddenly died. The reason Stauch draws this distinction is because in acting, for which one needs to be alive, to bring about another’s death is to value one’s life above another.

The final article I read was a case commentary on the ruling on Purdy and includes discussion of the DPP’s guidelines. The reason I looked at this article was to ensure that my knowledge of the law was up to date.

In Cartwright, ’48 years on: is the Suicide Act fit for purpose’, (2009) 17 Medical Law Review 267-476 the author gives a commentary on the case of Purdy, the case is important because on appeal to the House of Lords their Lordship’s unanimously ruled that Purdy’s rights under Article of the Human Rights Act (1998) conferred a duty on the DPP to issue guidleines explaining how he exercised his discretion under section 2(4) of the Suicide Act (1961) when deciding whether to prosecute loved ones who assist a terminally ill patient to die. In September 2009 the DPP issued preliminary guidelines for consultation and he is expected to issue final guidance in March 2010. In his conclusion Cartwright argues that there is considerable pressure on Parliament to legislate in this area, he states it should be Parliament’s role, not the DPP’s to establish the circumstances in which assisted suicide is permissible.

The above represents a small sample of the extensive literature which exists in this area, and as well as the academic literature this dissertation will also draw on primary, ‘black-letter’ sources including cases and legislation.

Proposed Timeline

I have broken the project down into three individual research aims. I will research each in turn which will give me an idea of how to approach each in terms of specific chapter headings.

I will continue to collect and read research materials for research aim one during January and February, I will spend March organising the results of my research deciding on chapter headings and outlining the key arguments I intend to make. I will do the same for research aim two from April-May and for research aim three in June and July. Whilst researching aims two and three I will write up the chapters that constitute aim one. During July I will also write my introduction, methodology and literature review chapters. In August I will write up the project with the intention to submit the dissertation in September.

Sample Chapter Outline

This is a sample outline of the chapter on sanctity of life.

Clive Seale has recently concluded a quantative study part of his study looks at how attitudes towards the sanctity of life influence treatment decisions.

Sanctity of life was first mentioned in the English courts in 1948, the reference being made by a judge as an example to illustrate how charitable trusts work. The concept was not discussed in its own right until 1992 when the courts were asked whether an individual could refuse a blood transfusion, and recognised the absolute right of a patient to refuse life-sustaining treatment. Recognising the individual’s autonomous right to control her own life.

Sanctity of life is referred to explicitly in several cases and implicitly in others; underpinning every murder, manslaughter and negligence case regarding loss of life. One of the justifications for criminalising crimes against the person is the central role personhood plays in traditional western morality and the importance that it places on human life. According to Sir Thomas Bingham MR “A profound respect for the sanctity of human life is embedded in our laws and moral philosophy”.

Sanctity of human life is central to cases where the decision to allow a patient to die has been taken. When a court makes a declaration that a patient may be allowed to die they are stating that the value of life is taking second place to some higher or overriding principle; “The principle [of the sanctity of life]… is not an absolute one. It does not compel a medical practitioner on pain of criminal sanctions to treat a patient, who will die if he does not, contrary to the express wishes of the patient.”

This chapter will explore what is understood by the term ‘sanctity of life’, its predominance in healthcare law, its relationship with patient self-determination and autonomy and the effects this has on the practice of medicine. The chapter will question the relationship between sanctity of life and autonomy in medical law and whether the sanctity of life is relevant to the practice of modern medicine.

References

Table Of Cases

Airedale NHS Trust v Bland [1993] 1 All ER 821 HL

R (on the application of Pretty) v DPP [2001] UKHL 61

R (on the application of Purdy v DPP [2009] UKHL 45

Re A (Children) (Conjoined Twins: Medical Treatment) (No. 2) [2001] 1 F.L.R. 267

Re Coats’ Trusts, Coats and another v. Gilmour and others [1948] 1 All ER 521

Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649

Table Of Legislation

Human Rights Act (1998)

Suicide Act (1961)

Bibliography

Beauchamp and Childress, Principles of Biomedical Ethics (6th Ed.), (2008, Oxford University Press, Oxford)

Biggs, Euthanasia, Death with Dignity and the Law, (2001, Hart Publishing, Oxford)

Cartwright, ’48 years on: is the Suicide Act fit for purpose’, (2009) 17 Medical Law Review 267-476

Decision on Prosecution – The Death by Suicide of Daniel James [online] http://www.cps.gov.uk/news/articles/death_by_suicide_of_daniel_james/

Finnis, ‘Bland: Crossing the Rubicon?’ (1993) 109 Law Quarterly Review 329-337

Gillon, Philosophical Medical Ethics, (1986, Wiley Blackwell, London)

Interim Policy for Prosecutors in Respect of Cases of Assisted Suicide (September 2009)

Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 Law Quarterly Review 481-503

Keown, Euthanasia Examined: Ethical, Clinical and Legal Perspectives (Cambridge University Press, Cambridge, 1999)

McHale and Fox, Medical Law (2nd Ed.), (2006, Sweet and Maxwell, London)

Seale, ‘Hastening death in end-of-life care: A survey of doctors’, Social Science and Medicine, (forthcoming)

Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics, (1995, Oxford University Press, Oxford)

Stauch, ‘Causal authorship and the equality principle: a defence of the acts/omissions distinction in euthanasia’ (2000) 26 Journal of Medical Ethics 237-241