The Law on Voluntary Active Euthanasia

The subject of death does not seem to be openly discussed in society. Thus, it’s no wonder that the issues relating to euthanasia and withdrawal of life sustaining treatment are always treated with such caution. In the relatively recent past, people were dying at home without the assistance of medical intervention. Modern technology has evolved by no end and medicine is now able to help patients live healthier and longer. However, despite such advancements, there are many who still die in pain and distress. Brazier puts the matter more starkly: ‘High technology medicine can sometimes be as cruel as the illness itself’^[1]. Some turn to their doctor for help, asking for an end to their pain and suffering. Some simply ask to be able to die with some dignity. However, a doctor who actively brings about the death of such patients will almost certainly be guilty of the crime of murder or physician assisted suicide. Doctors are facing some of the hardest human decisions possible, such as when is it permissible to withdraw treatment from a patient in a persistent vegetative state (PVS) or turn off the life support machine of a patient. Ethical principles underpin such decisions and the topic continues to generate debate.

Campaigners for relaxation of the law typically stress that they are campaigning only for voluntary active euthanasia (VAE). VAE is generally understood to mean euthanasia at the request of the competent patient. This can be contrasted with ‘non-voluntary’ active euthanasia (NVAE), that is euthanasia performed on those who do not have the mental ability to request euthanasia (such as babies or adults with advanced dementia) or those who, though competent, are not given the opportunity to consent to it. Euthanasia against the wishes of a competent patient is often referred to as ‘involuntary’ euthanasia (IVAE). Active euthanasia involves a positive act that brings about the death of the patient. Passive Euthanasia on the other hand involves an omission to treat. This may be either the withdrawal of treatment or food, or when the patient declines life saving medical treatment. The distinction between Act and omission has become the main focal point for judicial intervention and has become the subject of vast criticism as will be later discussed. Physician-assisted suicide (PAS) falls under the broad scope of the term ‘Euthanasia’. Although PAS does not involve a doctor physically ending the life of the patient, it does encompass the doctor helping the patient to terminate his or her own life.

English Law defines murder as the unlawful killing of one human being, under the

Queen’s peace, with the intention to cause death or grievous bodily harm (or malice aforethought). Although intention can be associated with motive in general terms, motive forms no part of the definition. The motive of the doctor is to ease the suffering of a patient. He will still intend to cause the death of the patient by administering a lethal injection. For the most part, intention is given its ordinary meaning. However, there are circumstances in which one person argues that they did not intend an end result, such as the doctor who administers a high dose of morphine. Although the primary purpose of the drug will be to alleviate the pain and suffering of the patient, the side effect may be to hasten the patient’s death. In R v. Adams^[2] Devlin J stated:

If the acts done were intended to kill and did, in fact, kill, it did not matter if a life were cut short by weeks or months, it was just as much murder as if it were cut short by years.

He then went on to comment:

If the first purpose of medicine, the restoration of health, can no longer be achieved there is still much for a 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.

Thus, the doctrine of double effect holds that the doctor only intends the ‘good’ result (the relief of pain and suffering) and not the ‘bad’ result (the death). This approach is inconsistent with the application of the criminal law. Thus, in R v. Woollin^[3] it was held that an action is intended if the defendant saw the result as a ‘virtual certainty’. This is extremely inconsistent with the doctrine of double effect. Surely the doctor who administers high doses of morphine to ease pain, but well aware that it will cut short the life of the patient, sees the patient’s death as a virtual certainty?

Under the Suicide Act 1961, the crime of suicide was decriminalised. Obviously, successful suicides could not be prosecuted. However, the reasoning of the law was that people who were attempting suicide needed help, not to face prosecution. Suicide is still not socially acceptable and this is displayed through the fact that it is still illegal to help someone attempt suicide.^[4] Thus, where a doctor gives a patient the means to commit suicide, he may be guilty of physician assisted suicide (PAS). There is some debate as to the likelihood of a successful prosecution for PAS as the Director of Public Prosecutions needs to prosecute, and also, there are very few successful prosecutions.^[5] In the ten year period between 1982 and 1991 it was reported that there were thirty-one convictions for assisting suicide.^[6]

The recent case of Pretty v. United Kingdom,^[7] raised the matter with the European Court of Human Rights. Despite the fact that under Article 2 of the European Convention on Human Rights and Fundamental Freedoms^[8] (ECHR), there is a right to life, the court held that the first sentence of Article 2(1) ‘enjoins the state not only to refrain from the intentional and unlawful taking of life, but to take appropriate steps to safeguard the lives of those within its jurisdiction.’^[9] Further, ‘the court is not persuaded that ‘the right to life’ guaranteed in Article 2 can be interpreted as involving a negative aspect.’^[10] The court held that there is no ‘right to die’, this cannot be derived from Article 2 of the Convention, nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life. The courts also rejected Mrs Pretty’s arguments under Articles 3, 8, 9 and 14 of the ECHR.^[11]

It is clear that the law prohibits active euthanasia and Physician Assisted Suicide, but it seems to allow passive euthanasia. In Airedale NHS Trust v Bland^[12], the medical team caring for a patient in a PVS applied to the court for a declaration stating that it would be lawful to withdraw treatment and nutrition. This would inevitably cause the death of the patient. It was argued in the case, that this course of action would be classed as murder, and three of the Law Lords agreed that the doctors would possess the necessary mens rea for murder. Thus, Lord Browne-Wilkinson, commented:

Murder consists of causing the death of another with the intent to do so. What is proposed in the present case is to adopt a course with the intention of bringing about Anthony Bland’s death. As to the element of intention … in my judgment there can be no real doubt that it is present in this case: the whole purpose of stopping artificial feeding is to bring about the death of Anthony Bland.^[13]

The justification for withdrawing the treatment was pronounced through the acts and omissions doctrine. Thus, withdrawing treatment was not a positive act, but an omission. The law only holds culpable, in specific situations, an omission to act. In this situation, it is clear that the doctors owe the patient a duty of care, but how did the Law Lords come to the conclusion that the medical team were not in breach of that duty?

Their Lordships, with support of ‘overwhelming evidence’ held that tube feeding was regarded as ‘medical treatment’. Thus, by applying the earlier decision of Re F,^[14] which held that the doctor could only treat an incompetent patient in his best interests; Bland held that the same principles should govern the withdrawal of treatment. As both the doctors and the court were of the opinion that to treat Tony Bland was not in his best interests, if they did not withdraw treatment then the treatment would constitute both the crime and tort of battery.

From this ‘patchwork quilt’ of decisions, one can appreciate how hard it is to ascertain the relevant law applying to end of life decisions. Not only are the provisions relating to the medical profession inconsistent with the general application of the criminal law in some instances, such as the application of the Woollin principle on the doctrine of double effect, but they are far from logical. Further, in the case of Re A (children) ^[15] the Court of Appeal held that the doctors separating the twins intended to kill the weaker twin as they saw it as a virtual certainty of their actions.

Keown comments, ‘Woollin is a retrograde step. It suggests that doctors engaged in proper palliative care intend to kill, a misrepresentation of their state of mind. This could potentially have devastating effects on the administration of palliative care. A ruling which hinders good medicine is clearly bad law.’^[16]

Further, Keown goes on to argue that Bland has left the law in a morally and intellectually misshapen state. A doctor caring for a patient in a PVS is prohibited from actively killing the patient, but following Bland, the law almost requires the doctor to let the patient die by omission. Thus, even though the House of Lords Select Committee has arrived at the conclusion that killing by positive act is never permissible, the Law Lords have concluded that intentional killing by omission is legal. There is clearly room for argument that there is need for legislative intervention. Parliament is recognised as the democratic body and their role is to pass legislation. The role of the judiciary should not be to pronounce such far reaching decisions, this is inevitably a role for parliament. Some reform is needed and not necessarily in favour of legalising euthanasia. Thus, we shall now turn to examine the consequences of legalising euthanasia.

If legislation were to arise, then it would be an extremely topical and controversial area. Although people agree with Voluntary Active Euthanasia (VAE) in principle, this does not mean that they believe the law should therefore be relaxed. Many people oppose relaxation of the law because they believe it would result in two undesirable consequences. The first is a slide from PAS to VAE and from VAE to non-voluntary active euthanasia (NVAE) (and possibly even involuntary active euthanasia (IVAE). The second is a slide from VAE as a last resort to its use as a standard and premature alternative to palliative care. In short, many people see nothing wrong with VAE in principle, but they do not want the law to permit it in practice because they think it would be likely to result in a slide down a slippery slope from something they condone – ending patient’s lives at their request as a last resort – to something they oppose – ending their lives without request or where less extreme alternatives exist.

There are certain countries which have allowed Voluntary euthanasia and PAS. In the Netherlands, the Supreme Court in Alkmaar^[17] interpreted art. 293 of Dutch Penal Code^[18] and art. 294^[19] as susceptible to the defence of necessity contained in art. 40 of the Penal Code. In acquitting a doctor upon reversion of the case to the Court of Appeals from the Dutch Supreme Court it was decided that the defence would apply where the doctor acted according to ‘reasonable’ medical opinion.^[20]

The Dutch version of the British Medical Association (BMA), the KNMG, have set out guidelines which considered that the decision needed to be voluntary, well considered, durable and made in a situation of unacceptable suffering. Legislation in 1993 confirmed strict guidelines, including establishing the competence of the patient, need to be adhered to. The Dutch claim that their guidelines for VAE are strict and precise and therefore capable of ensuring effective control. However, the elasticity of the guidelines and the absence of rigorous independent oversight of the doctor’s decision making, suggest the contrary.

The case: Office of Public Prosecutions v. Chabot^[21] provides an example of the law and practice of euthanasia in the Netherlands and an equally effective example of both the existence of the ‘slippery slope’ argument and the fact that its invocation can be rather indiscriminate and in ignorance of many facts.

This was another case in which the Dutch Supreme Court considered the defence of necessity. The defendant psychiatric had supplied lethal drugs to Mrs B after she had requested them and died some 30 minutes later. The doctor then reported to the coroner that there had been a suicide in which he had assisted. The deceased was suffering from no painful or terminal physical condition as in R v. Adams^[22]. The deceased had become depressed after a series of tragic family events. Therefore:

In considering the question ‘whether Mrs B was suffering from any illness’, the Court of Appeals concluded there was no indication of any somatic condition which might have been the source of Mrs B’s wish to die.^[23]

The Court of Appeals found on the evidence that her decision to die was well-considered, the suffering had been and was likely to be long-term. Therefore, the court held that the defence of necessity can apply in cases of mental illness, with the provision that the second doctor must examine the patient and agree that the request is voluntary and there is no other way to alleviate the suffering. This case has opened up the door to PAS for purely mental suffering, and although hitherto psychiatrics appear to have been hesitant to assist suicide on this ground, there is no logical reason why the guidelines in relation to mental suffering should prove any more ‘precise’ or ‘strict’ than those in relation to physical suffering.

John Keown has examined the Dutch experience in great detail.^[24] His examination of two surveys carried out in the Netherlands revealed how the practice of euthanasia is sliding down the ‘slippery slope’. The surveys disclosed that the guidelines had been widely breached. In many cases doctors had intentionally shortened lives without explicit request from the patients. Out of 9,500 ‘euthanised’ deaths, 1,000 of those deaths were in the NVAE category. Furthermore, in a significant number of cases, the reasons doctors gave for performing VAE suggested an elastic interpretation of ‘unbearable suffering’. The fact that NVAE is far from uncommon in the Netherlands has emerged from the mouths of Dutch doctors themselves. From Keown’s examination, he states:

In recent years it has become increasingly clear that [euthanasia] is not only widely practised but now appears to enjoy, in some circumstances, the support of the Dutch political, legal and medical establishment.^[25]

The investigation has shown the dangers of legalising euthanasia. However hard states try and enforce strict guidelines, there is always going to be room for abuse. Keown also examined other countries where Euthanasia is (or was) legal; the northern territory of Australia and the state of Oregon in the USA. His examination has suggested that the guidelines proposed by each state were less strict than those in the Netherlands and therefore open even further to abuse. In the northern territory of Australia, legislation came into force in July 1996, and was later overturned by the Federal Parliament in March 1997. Perhaps this was because there was recognition of the slippery slope on which they had began to tread.

In Oregon, ‘The Death With Dignity Act’ still stands. However, the fact that a number of other states have rejected proposals to follow Oregon’s example shows that they are also aware of the path to which voluntary euthanasia may lead.^[26] On the other hand, many academics argue to the contrary, claiming that the guidelines issued by these two states are just as rigorous as the Dutch policy. The problem is, that in some cases it is impossible to know every single detail. Thus, even in the most ‘hardest’ cases such as Dianne Pretty, the law cannot make exceptions to the rule, as exceptions are always stretched and abused, even those that are enforced strictly.

As already stated, both domestic law and European case law has rejected any ‘right to die’. The wide margin of appreciation the ECHR has allowed, has endorsed that legalising euthanasia is a step down a slippery slope that the majority of Europe has also refused to tread. Some argue that human rights would prevent any kind of suffering and pain imposed by terminal illness. However, the ECHR has quite clearly stated that the right to life does not also create a right to die. With the exception of the omissions doctrine applied in Bland, actively bringing about the death, or assisting the suicide of another is illegal. Furthermore, there is a strong case against legalisation, as there are extremely strong arguments regarding the potential of abuse, demonstrated by the Dutch experience. The idea that life is sacred and precious has been enshrined and deeply enrooted in English Law. It seems that this ethic will stand for a long while yet, and with good reason. For who should ever be given the legal justification for taking the life of another?

Bibliography:

Brazier, M. ‘Medicine, Patients And The Law’ (3^rd edn, 2003). Penguin Books, London

Foley, K. and Hendin, H. ‘The Case Against Assisted Suicide For the Right to End-of-Life Care’. The Johns Hopkins University Press, Maryland USA

Glover, J., ‘Causing Death And Saving Lives’. (1977) Penguin Books, London

Kennedy, I. & Grubb, A. ‘Medical Law’ (3^rd end, 2000). Butterworths, London

Keown, J. ‘Euthanasia, Ethics, And Public Policy – An Argument Against Legislation’ (2002). Cambridge University Press, Cambridge.

Mason, JK. Et al. ‘Law and Medical Ethics’ (6^th edn, 2002) Butterworths, London

Montgomery, J. ‘Health Care Law’ (2^nd edn, 2003). Oxford University Press, Oxford

Somerville, M., ‘Death Talk’ (2001). McGill-Queen’s University Press

Footnotes

^[1] M. Brazier Medicine, Patients and the Law, (3rd edn, 2003)

^[2] [1957] Crim LR 365

^[3] [1998] 4 All ER 103, which approved the case of R v. Nedrick [1986] 3 All ER 1.

^[4] S 2 Suicide Act 1961

^[5] See Attorney-General v. Able [1984] QB 795

^[6] Select Committee on Medical Ethics, Oral Evidence, HL Paper (1993-1994), 18

^[7] [2002] 2 FLR 45, [2002] 2 FCR 97, 66 BMLR 147

^[8] The ECHR provides a code of human rights, enforceable by the individual citizen against his or her state. As a result of the Human Rights Act 1998, the Convention has been incorporated into domestic law. Where previously, given the supremacy of parliament, judges had no jurisdictional basis on which directly to employ the Convention to protect rights, the Human Rights Act confers this jurisdiction, requiring the courts not only to protect Convention rights, but to make ‘declarations of incompatibility’ wherever domestic law conflicts with Convention rights.

^[9] At paragraph 38

^[10] At paragraph 39

^[11] For a more detailed analysis, see Pretty V United Kingdom Supra

^[12] [1993] 1 All ER 821

^[13] [1993] AC 789 at 876 per Lord Browne-Wilkinson

^[14] [1990] 2 AC 1

^[15] [2000] 4 All ER 961

^[16] Keown, J. ‘Euthanasia, Ethics, And Public Policy – An Argument Against Legislation’ (2002). Cambridge University Press, Cambridge.

^[17] Nederlnadse Jurisprudentie 1985 No. 106

^[18] The offence of taking another’s life at the other’s ‘express and serious request’

^[19] The offence of assisting suicide, in effect the same as s. 2(1) of the Suicide Act 1961

^[20]Parameters to euthanasia have been set as follows:

(a) The request must come from the patient. It must, in addition, be free and voluntary.

(b)This request must have been a considered and persistent one.

(c)The patient should be suffering intolerably (although not necessarily physically) and there should be no prospect of improvement.

(d)The decision to end the patient’s life must be one of last resort, having considered whether there is any less drastic alternative.

(e)The euthanasia must be performed by a doctor who has beforehand consulted with an independent doctor who has experience in the area of euthanasia.

^[21] (1994) Nederlandse Jurisprudentie 1994 No. 656

^[22] [1957] Crim LR 365

^[23] Griffiths (1995) 58 MLR 232 at p.234. cited in Davies ‘Medical law’ page 355.

^[24] Keown, J. ‘Euthanasia, Ethics and Public Policy. An Argument Against Legislation’ 2002

^[25] Ibid at page 124

^[26] Ezekiel J. Emanuel, ‘Euthanasia: Where the Netherlands Leads Will the World Follow?’ (2001) 322 BMJ 1376