involving end of life decisions could lead to ‘inflexibility, rigidity and obsolescence
‘He has also expressed the view that (elsewhere) that certainty in the law is an advantage and sometimes a necessity. Discuss Lord Scarman’s dilemma in relation to end of life decisions.
The end of life cases normally involved applications made to the Court for and on behalf of an incompetent person or dying person that the patient should be allowed to die. However there can be cases that the application is about the right of the incompetent person to continue living. This means that Court will be involved in making a decision, literally between life and death of the person subject to the application. Kennedy and Grubb states that ‘unlike the situation of the competent patient, the law is largely not concerned with the decision made by the patient themselves’. They also argue that since the decision may result in the death of the patient, the law is more problematic and the courts are more hesitant.
This essay will discuss about the dilemma in facing not only Lord Scarman but also the Court as a whole in cases of end of life. Discussions will be based on the current laws available in the United Kingdom. This includes case laws and the Human Rights Act 1988. Issues of ethics will also be considered.
There are several issues that contribute to the dilemma. One is the fact that in relation to matters of life and death the criminal law, especially the law of murder will come to the fore and sets the agenda. This brings in the discussion about the operation of the defence of necessity in relation of cases in this category.
The House of Lords in Airdale NHS Trust v. Bland decided that it would be lawful for medical staff to withdraw and remove life sustaining measures to allow the patient in question to die as he was suffering from the persistent state of vegetation (PSV). In this case Tony Bland’s parent made the application to the Court to allow medical staff to withdraw feeding and other life sustaining measure so that he could die.
In the House of Lords, Lord Goff stressed that the law draws a crucial distinction between cases where doctors decide not to provide or to continue to provide for his patients treatment or care that could help or prolong his life and those which he decides for example by administering lethal drugs that could bring his patient’s life to an end. He said the former might be lawful as either the doctor gives effect to the patient’s wishes or in certain circumstances the patient is so incapacitated from stating whether or not he gives his consent. He also states that the later is not lawful.
In this case the House of Lords introduced the test of ‘best interest’. It was held that it was not in the best interest of Bland that the treatment could be continued. Lord Mustill held that withdrawing the life support in this case was justified both legally and ethically as the continued treatment of Bland ‘can no longer serve to maintain the combination of manifold characteristics which we call a personality’.
The decision of the House of Lords in the above case has brought several criticisms. The critics based their argument on the issue of sanctity of life. It is argued that the sanctity of human life principle is said to prohibit to either intentionally kill a patient, or intentionally lets the patient to die, and to base decision on the prolongation of life or shortening of human life on consideration of its quality or kind. In addition Singer argues that the Court still have to respect the full idea that life is sacred although the principle is not an absolute one as a principle is to be balanced against conflicting consideration.
Glanville William is of the view that A person cannot consent to his own death. The rule is not based upon utilitarian considerations even though these may sometimes buttress it. It is theocratic survival in our predominantly secular law; and religious (transcendental’) arguments are still its main support. The doctrine of sanctity of life, which has its origin from Roman Catholics, insist that life must always be protected and preserved and adherents to the sanctity of life emphasise that the central injunction is to refrain from intentionally shortening life.
On the other hand it is argued that unintended bad outcomes may be permissible subject to certain conditions namely the action itself must not be morally wrong, the intention must be to produce the good effect, the good effect must not be brought about by the bad effect and the good effect must outweigh bad effect.
The other dilemma regards the application of human rights, especially the right to life as stated in the Human Rights Act 1988 and the European Convention for Human Rights (ECHR). The points of human rights was raised and discussed in the case of Preety v. DPP and Preety v. the UK about the right to self determination of one’s life. These two cases relate to the same person, Dianne Preety who was in state of vegetation and wanted to end her life. Her husband has applied to the Court for immunity from prosecution in the event he helped his wife to die. The Divisional Court refused his application for judicial review of the decision made by the Director of Public Prosecution that he will not be granted immunity from prosecution. The applicant appealed to the House of Lords. The applicant argued her case, among others, based on Article 2 of the ECHR on the right to life.
The House of Lords rejected this argument. The House of Lords decided that Article 2 is about the sanctity of life and that it means that no human beings should be deprive of life by means of human intervention. The House of Lords held that the provision does not provide for the legalisation of assisted suicide. Lord Bingham states that the decision of the House of Lords is consistent with the international practice and the debate about whether assisted suicide should be legalised or not should be left to democratic debate. The European Court of Human Rights, in the second case, also rejected her argument that Article 2 includes the right to self determination to die. The Court held that Article 2 protected the right to life and could not be inferred as conferring diametrically opposite right, namely the right to die.
In the case of Glass v. United Kingdom the European Court of Human of Human Rights found that there had been a violation of Article 8 of the ECHR (respect for private and family life) where doctors had overridden a family’s wishes in their care of disabled child. This means that doctors and also the Court from now on must also pay attention to the wishes of the family. In this case the doctor’s decision to use certain injection to let him die was considered by the court as pursuing a legitimate aim in seeking the interest of the patient and reiterated that the doctors had not intended to hasten his death and thus violated Article 2.
The above cases show that the Court would be likely to approve an application made for medical reasons by or supported by the medical profession. Thus one should distinguish between the situation in which a doctor is asked to assist the patient in bringing about his death (aiding and abetting suicide) and where a doctor is asked to kill the patient (mercy killing).
The other issue is that the assisting of someone to die, other then the issue of murder as discussed above, also involve the issue of the statutory offence that is assisting suicide under s 2 of the Suicide Act 1961. However the case of a medical doctor ending someone’s life is not as clear cut as one would expect. The distinction between them is the distinction between perpetrators and accessories. Kennedy and Grubb argues that if a doctor, to speed his dying patient’s passing, injects poison with the patient’s consent, this will be murder; but if the doctor places the poison by the patient’s side, and the patient take sit, this will be suicide in the patient and the doctor’s guilt will be of the abetment offence under the Suicide Act (not abetment in murder).
Section 2 (1) of Suicide Act 1961 determines whether a doctor is guilty under an offence for providing a patient with the means to bring about his own death. Woolf, J in A-G v Able held that said:
As a matter of principle, it seems to me that, as long as there is the necessary intent to assist those who are contemplating suicide to commit suicide if they decide to do so, it does not matter that the supplier does not know the state of the mind of the actual recipient. The requirement for the necessary intent explains why in those cases where, in the ordinary course of business, a person is responsible for distributing an article, appreciating that some individuals might use it for committing suicide, he is not guilty of an offence. In the ordinary way, such a distributor would have no intention to assist the act of suicide. An intention to assist need not however, involve a desire that suicide should be committed or attempted.
Otlowski submitted that in her book had submitted that in establishing a person’s guilt as an aider and abettor, it is necessary to show that the person was intentionally assisting and encouraging the commission of the act in question or that he or she was at least ready to assist if required. She argues that in many case, there would be little difficulty in establishing that the doctor thereby intended to assist the patient to commit suicide (even though the doctor may have hoped that the patient would not do so) and that the patient was in fact assisted or encouraged in taking or attempting to take his or her own life.
The above situations have lead to the call for reform of the law. However a House of Lords’ Select Committee has dismissively rejected all calls for reform. The committee argue We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection.
The above discussion has indeed shows that dilemma facing Lord Scarman as the law in this situation is divided and uncertain. The legislations such as the Human Rights Act and the Suicide Act clearly stated that life should be respected and respected. On the other hand there is a need for case laws to define the parameters in areas not covered by the statutes. This brings the conflict between the ethical argument that life should be protected based on the doctrine of sanctity of life. However this doctrine has not been religiously followed by the Court when there medical profession or the family apply to the Court and the Court finds that death should be allowed in the best interest of the patient. Thus it is argued that the situation now, whether in relation to statute or case law is less than clear cut, which may need to be rectified by Parliament. This will then be subject to political debates.
- House of Lords’ Select Committee Report of the Select Committee on Medical Ethics (HL, Paper 21, Session 1993-94)
- R Huxtable, Maternal Instinct v. Medical Opinion, CFam, Nov 2004.
- Kennedy and Andrew Grubb, Medical Law, London: Butterworth, 2000 (3rd Ed)
- J. Keown, Euthanasia, Ethics and Public Policy, An Argument Against Legislation, Cambridge: CUP, (2002)
- H Kuhse The Sanctity of Life Doctrine in Medicine, A Critique, Oxford: Clarendon (1987) Ch. 4
- Margaret Otlowski, Voluntary Euthanasia and the Common Law (1997)
- P Sanger, Rethinking Life and Death, Oxford: OUP,
- Glenville William, Textbook of Criminal Law (2nd ed, 1983)