In the UK today, around three quarters of deaths are ‘predictable’ and follow a periodic trend of chronic illnesses such as cancer or heart diseases. It was found from the survey of general practitioners that 63%of deaths in England involved an ‘end of life decision’ by a medical practitioner. The extent to which people should have control over their death or another’s death is highly controversial. Euthanasia and assisted suicide arouses deep moral beliefs about the value of life that are held by society.
This work will focus on end of life, euthanasia and assisted suicide in relation to Sarah’s request to her husband and her GP Dr Grace and the possible legal consequences. It will also consider the ethical issues involved such as autonomy, paternalism, sanctity of life versus quality of life, utilitarianism, deontology and the slippery slope doctrine.
End of Life
Everyone has the right to good palliative care as he/she approaches the end of life so as to control physical pain and offer psychological, social and spiritual support.
As defined by the World Health Organisation (WHO), palliative care is ‘an approach that improves the quality of life of patients and their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and spiritual’.
Patients approaching the end of life have advanced and incurable conditions like cancer, motor neurone diseases, etc and acute conditions caused by sudden disastrous events. The provision of treatment and care towards the end of life often involve clinically complex and emotionally distressing decisions involving ethical issues and uncertainties about the law. In Ms B v An NHS Trust, the court granted Ms B’s request not to be kept artificially alive by the use of a ventilator. These decisions may include whether they wish to participate in medical research or they want a life saving treatment. In order to make an informed decision, the person making the decision must understand the reality of the situation and the consequences of their actions.
In situations where there is the likelihood that a person’s capacity to consent may be affected in future, they can set up an advance decision. As provided by section 24(1) of the Mental Capacity Act 2005, an advanced decision spells out the treatments and procedures that the patient consents to and those that are against their wishes. The Act further provides that any adult who has mental capacity can choose a personal welfare lasting power of attorney who will decide on their future medical treatment if they do not have the mental capacity to do so. The attorney may discuss about treatment options but cannot request for treatment that is clinically inappropriate. The advance decision must be valid and applicable. Once there is any doubt about this decision, the case can be sent to the Court of Protection (the legal body that supervises the Mental Capacity Act 2005).
The fact that Sarah was in the last stages of motor neurone disease meant that she may be experiencing shortness of breath and paralysis which she did not want her family to witness.
Most people with motor neuron diseases like Sarah may think about ending their life at some point but it is not a common outcome especially in cases where there is a strong family and community support.
Legal Position of End of Life Issues
An act which causes death would be murder and an omission could be murder or manslaughter depending on whether or not there was a duty to continue with treatment. This was assessed by Bolam Test in the Bolam v Friern Hospital Management Committee case. Thus a doctor may face criminal prosecution in situations where he owes a duty to the victim but fails to act accordingly. In R (Jenkins) v HM Coroner for Portsmouth and South East Hampshire, however, it was held that no crime was committed if help was not offered to a dying patient who categorically refuses medical intervention. A doctor will not breach his duty by failing to provide treatment if a competent patient does not approve the treatment. In the case of Ms B v An NHS Trust, doctors refused to switch off the ventilator that kept her alive for ethical reasons, despite being pronounced capable of making a decision on whether or not to continue her medical treatment. It has been argued that a competent person will never refuse basic care and for a person to be denied this, amounts to torture and inhumane treatment under Article 3 of the European Convention on Human Rights (ECHR). Furthermore, if the treatment is not in the best interest of the patient, a doctor is not required to do so as shown in Airedale NHS Trust v Bland. Here, a court order was granted for the withdrawal of treatment for Bland because he was in a persistent vegetative state and there was no hope of recovery. It is important to note that in this case the medical treatment was not against his best interest but it did not promote them.
It is clear from Sarah’s case that she was experiencing excruciating pain and suffering and did not want to lose her dignity or have her family witness her final months. Although there is no cure for motor neurone disease, medical treatment can help relieve the symptoms and slow down the progression of the condition. Sarah is not likely to succeed with her request even if she should take the matter up legally as the treatment she is being given will help reduce the symptoms.
Also, under sections 24-26 of the Mental Capacity Act 2005, once an incompetent patient has issued an effective advance directive stating that he does not want to receive life-sustaining treatment; it would be unlawful for the medical team to administer treatment. In Re XB, the judge held that XB had capacity to create the advance decision and that it follows the formalities in the Mental Capacity Act 2005. Most people with motor neurone disease prepare an advance decision. Sarah has the option of preparing an advance decision stating the kind of treatment she would like to receive in the very final stage of her disease.
Euthanasia is an exceedingly controversial and divisive topic, which raises an array of complex ethical, social, moral, legal and religious concerns. It generally means the voluntary ending of a person’s life to ease incurable and excruciating pain. Euthanasia is illegal in England and is treated under UK law as either murder or manslaughter depending on the circumstances. In certain cases it results in a mandatory life sentence. Euthanasia can be classified in different ways according to whether the patient gives an informed consent. These are voluntary, non-voluntary and involuntary euthanasia. These can also be divided into passive or active euthanasia. Active euthanasia occurs when a medical professional or another person’s deliberately intervenes to end the patient life, for example injecting them with large doses of painkillers or sedatives. Passive euthanasia occurs when the patient dies because the medical professionals withheld or withdrew treatment such as life support machines, ventilators, etc, that is necessary to keep the patient alive.
For the purpose of the discussion of this case, I will focus on voluntary and active euthanasia. Voluntary euthanasia occurs where the patient makes an informed decision to die and asks for help to do so. Active euthanasia is however classed as a criminal offence of assisted suicide regardless of the patient’s consent for the act to take place whilst voluntary euthanasia is considered as either voluntary manslaughter or murder depending on the circumstances. In R v Cox, Dr Cox agreed to Mrs Boyes’ persistent request for voluntary active euthanasia and administered a lethal dose of potassium chloride to her. Dr Cox was charged with attempted murder. Similarly if Dr Grace or Sarah’s husband agrees to her request, they could be charged with murder or manslaughter.
Although an attempt to take one’s life is not a criminal act, under section 2(1) of the Suicide Act (1961), assisted suicide is illegal and is punishable by up to 14 years imprisonment. Section 2(4) of the Act also states that, ‘…no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.’ Assisted suicide can be described as the act of intentionally assisting or encouraging another person to take their life. For a person to be guilty of this offence, he must intend to assist or encourage another person to commit suicide.
In every case involving physician assisted suicide, a doctor who gives drug to a patient in order to kill him has direct intent even if the doctor had good reason to end the patient’s pain. Where a doctor administers pain-relieving drugs to a patient with the aim of relieving pain but was aware that the drugs would shorten the patient’s life, the jury may find intent. However from most reported cases of doctors charged with murder or administering pain-relieving drugs, judges avoid giving direction on oblique intention as stated in criminal law.
After the House of Lords decision in R v Purdy, the Crown Prosecution Service produced a list of factors to consider when deciding which case of assisted suicide to prosecute. These factors explain that suspects would not be charged unless evidence shows that the victim was forced into killing themselves or that the suspect intends to profit from their death. Since 2010, numerous assisted suicide cases have been passed to the Crown Prosecution Service (CPS) of which no one has been prosecuted. A small number of files are however being reviewed. The need to amend these factors became eminent following the case of R (Nicklinson) v Ministry of Justice. Here, the Court of Appeal explained that it is wrong to say that there is a right to commit suicide.
If Sarah’s doctor should assist her to die, she would be held liable for her death and may face imprisonment. On the other hand, if Sarah’s husband should assist her die, he must be able to prove based on the CPS guidelines that he will not profit from Sarah’s death.
The Human Rights Act 1998
The Human Rights Act 1998 integrates the rights under the ECHR and requires all public authorities including the NHS to observe these rights and duties when making decisions about patients. Decisions regarding end of life issues of patients must be made in a fair, transparent and justifiable way as the Act allows consideration of a decision and the decision-making process by the courts. The Human Rights Act and the ECHR may recognise a person’s right to life however does not recognise their right to death. Articles 2, 3,5,8,9 and 14 of ECHR are the most relevant to decisions regarding care and treatment towards the end of life of a patient.
In R (Purdy) v DPP, it was held that a decision to commit suicide can fall within the scope of Article 8 of the ECHR which protects the right to respect for private and family life. Article 8(2) of the ECHR also provides that:
‘There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.
Public authorities therefore have an obligation to prevent people from committing suicide. In R (Pretty) v DPP, Diane Pretty who suffered motor neurone disease wanted to end her life due to the pains and suffering she endured because of her illness. She used the Human Rights Act 1998 to argue that the Director of Public Prosecutions should promise not to sue anyone who helped or assisted her to die. The case was however rejected by the House of Lords. In a judicial review of this decision at the ECtHR, Pretty v UK, relying on the Convention rights, the court rejected the argument that the ECHR provided a right to die. It was held that Article 2 impressed a duty on the state to protect life. She also used Article 3 to argue that by forbidding her husband to help her die; the state was imposing torture and degrading treatment on her. The ECtHR however, held that her medical condition was not caused by the state and it was the medical condition which imposed the degrading treatment. The Court considered that interference of Ms Pretty’s right to respect private life under Article 8 of the Convention rights was justified as it protects the rights of others in a democratic society.
Based on Ms Pretty’s case, the state has a duty to protect life which includes Sarah and since her medical condition was not caused by the state, Article 3 of the Convention rights is not being violated. If Sarah’s doctor or her husband should go ahead and assist Sarah in dying, then under the guidelines from the CPS, they will both be liable for manslaughter and risk facing imprisonment.
The key ethical aspect to proponents of euthanasia is autonomy. This is simply a person’s freedom to lead their lives and have control over their own bodies as they wish. The ultimate denial of respect for a person is denying that person respect for his views. Such respect is very vital especially when it concerns personal and intimate matters such as when to die.
Those who oppose euthanasia argue that there are other principles that needs to be weighed against autonomy such as the patient’s right to die must be balanced against the interest of the society, and concerns that this may threaten the right to life of other patients like the elderly, disabled and gravely ill who do not want to die. Also there are moral values that balance the autonomy right which should be upheld by the law even if it infringes on the autonomy rights of members of the society. They also argue that it is impossible to make an informed autonomous choice to die as most patients are often unaware of the availability of rehabilitative care for people with disabilities and terminal illness and so are unable to make properly informed decisions. There are a range of treatments available that can relieve most of the symptoms of motor neurone disease and with the right medication the disease can be controlled and Sarah can have the best quality of life. Many of those seeking death suffer depression and once provided with medication for depression, their number falls. Similarly, about 15% of motor neurone disease cases are known to be linked to a type of dementia (affects personality and behaviour). Hence these autonomous decisions are not carefully thought-out.
Others argue that it is impossible to justify euthanasia using autonomy. This is because autonomy gives people the freedom to live and develop the kind of life they wish whilst euthanasia ends a person’s life. Most supporters of euthanasia do not agree that anyone who wishes to be killed should be allowed to do so. However, they respect the wishes of a person only if they think his decision is reasonable.
This doctrine holds that an act is right or wrong based on whether it maximises happiness or benefit the society. In euthanasia cases, the focus is not entirely on the patient as other people like the relatives may be affected by the patient’s decision. Even if the patient’s decision would be in his best interest, it is may be wrong due to the terrible effect it may have on the relatives. Utilitarianism would however recommend euthanasia if the relatives agree with patient’s decision. This means that euthanasia or assisted suicide is morally accepted under this doctrine once Sarah’s husband or any of her relatives agrees to it.
Paternalism can be said to be the forceful intervention to the behaviour of a person or group which limits their freedom for their own good. The paternalism approach to patients is barely practised in modern medicine. Alternatively, there’s a mutual decision-making between the doctor and patient with the patient making the final decision on treatment options. Under this doctrine, Sarah with the help of her Doctor could decide on the best possible treatment available so she can live comfortably.
Paternalism tends to deny individual autonomy. A hard form of paternalism promotes coercion to protect able adults against their voluntary self-harming decisions like active voluntary euthanasia. Hence, this doctrine will morally protect able patients like Sarah from active euthanasia and assisted suicide.
The doctrine of deontology holds that some acts are always wrong even if they achieve ethically worthy ends. This includes killing of human beings, lying and not keeping promises. It makes no ethical distinction between murder and suicide. Some killings of human beings are morally accepted provided it was not intended. For instance, the death of the patient is foreseen and not a desired outcome if he dies after being given a painkiller. This may be morally accepted as the intention is to kill the pain and not the patient. This doctrine however prohibits the situation where a patient can ask a doctor or family to actively and intentionally kill them or assist them in dying.
Depending on religious beliefs, it may be ethically right or wrong under this doctrine for Sarah’s doctor or husband to assist her in committing suicide.
Sanctity of life versus quality of life
Sanctity of life values the good of life which exists in a person independent of any disability. As argued by Craig Paterson, ‘It is always and everywhere wrong to kill an innocent person regardless of any further appeal to consequences or motive.’ The House of Lords select Committee on Medical Ethics stated that the ban on intentional killing was ‘the cornerstone of law and of social responsibility’. This principle is supported by both religious groups who believe that each person is made in the image of God and non religious groups who are drawn by its insistence of the equal value of every human life. Supporters of sanctity of life argue that life is valuable and that people cannot be treated like goods that have passed their ‘sell by’ date. The principle of sanctity of life has been approved by the judiciary and this was demonstrated in Airedale NHS Trust v Bland. The opponents also stress that the things that make life valuable are what people do with their lives.
Quality of life however, holds that some lives are just not worth living and is therefore right to end them. This principle dismisses the ‘sanctity of life’ approach and claims that it is a person’s experiences and relations with others that make life good. Therefore a life without these values has lost its goodness. Based on this doctrine, Sarah may argue that since she would be experiencing severe pain during the final stages of her illness she should be assisted to die.
The slippery slope doctrine
From the euthanasia debate, the slippery slope argument claims that if society accepts certain practices like voluntary euthanasia or physician-assisted suicide, a line is crossed and a dangerous precedent could be set. This means that if society should legalise voluntary euthanasia, it will gradually include non-voluntary and involuntary euthanasia.
The opponents of this doctrine argue that a well drafted legislation can draw a firm wall across the slippery slope. Once the law is changed and voluntary euthanasia is legalised, it cannot be controlled. Proponents of euthanasia however, argue that euthanasia would never be legalised unless there is proper regulation and control mechanisms in place. Those people, who are very ill and need constant care or those with severe disabilities, may feel pressured to ask for euthanasia so they do not become a burden on their family. Also research into palliative treatments may be discouraged, and this may prevent the discovery of cures for people with terminal illnesses. Opponents also argue that cost-conscious doctors are more likely to carry out their patients’ requests for death. It was found in a 1998 study that cost-conscious doctors who ‘practice resource-conserving medicine’ are more likely to prescribe a lethal prescription for terminally-ill patients.
Several attempts have been made over the years to legalize euthanasia and assisted suicide but none have proven successful. The balance between ethical views and belief systems versus legal system is difficult to reconcile and may result in the implementation of the slippery slope doctrine. Autonomy and various human rights impose limits on euthanasia and assisted suicide thus impinging on other human rights and protecting the poor. Furthermore, with the advancement in palliative care and mental health treatment, patients are less likely to suffer unbearably and given the right care in a safe environment, a patient can have a dignified and less painful natural death.
Considering all these and the fact that Sarah is not in a persistent vegetative state as in the Bland case, Dr Grace was right to refuse to assist her die. Her husband on the other will be held liable for her death if he should assist her die.