Death & Dying II Flashcards
Suicide Act 1961 - Section 1
n 1961 the Suicide Act decriminalize both suicide and attempts at suicide (Section 1). The courts on many occasions confirmed that the law can no longer interfere. If someone wishes to take their own life, then that is an autonomous decision for them, and the courts cannot interfere, including the medical profession.
Re Z [2004]
“…the court has no basis in law for exercising the jurisdiction so as to prohibit Mrs. Z from taking her own life…”
Section 2(1), Suicide Act 1961
punishable by up to 14 years in prison.
Section 2(4), Suicide Act 1961
No proceedings will be instituted without the consent of the DPP (is not always in the public interest to prosecute).
It then goes on to say that the DPP must consent to any prosecution. Now, the idea here is that assisting suicide is highly emotive. People may become involved for a very good virtuous reasons, and in many cases it won’t achieve any public interest reason in prosecuting that person. So, it will not be in the public interest to prosecute.
R (Pretty) v DPP [2002]
Diane Pretty had motor neuron disease. She has died, but she had motor neuron disease and she was in a lot of pain. She was completely incapacitated, but she wasn’t yet at her end-of-life. So, she hadn’t quite got to the end of her life.
Now, what she wanted was at the time of her choosing she wanted her husband to help her commit suicide. So, she was not quite ready, but she wanted in the future for her husband to help her commit suicide.
But, what she sought for the plan to put in place was an undertaking from the DPP that the DPP with not thereafter prosecute her husband. So, she wanted help from her husband; she sought an undertaking from the DPP that thereafter the DPP would not prosecute her husband.
The case came about because the DPP refused to give this undertaking.
So, she went to the domestic courts first and she focused on human rights. Her argument was that the failure to give an undertaking breach to various human rights, including:
Article 2 - the right to life – which she said implicitly included the right to end your own life.
Article 3 – The right to not be subjected to inhuman and degrading treatment; she said being forced to live was effectively inhuman and degrading in her condition.
Article 8 – the right to privacy and her family life; she said this encompassed the right to commit suicide.
So, her arguments were based on those human rights. But unfortunately for Diane Pretty, her claim domestically failed. The court held that the Convention rights could not be used to create a right to commit suicide with assistance.
What the court went on to say is that if the decision was otherwise than effectively assisted suicide would become legal through the back door. So, if they had required the DPP to give an undertaking relying on these human rights, then assisted suicide would have become legal through the back door, and that they said was not the job of the courts, but a job for Parliament.
The ECHR said you couldn’t imply that the right to life had its flipside as being the right to suicide.
So, effectively the right to life could not be interpreted in the way in which she suggested.
However, the ECHR did feel that suicide was part of your human rights under Article 8. So, the ability to kill yourself engages Article 8 – right to respect for your private and family life.
R (Purdy) v DPP [2009]
She suffered from a very progressive form of multiple sclerosis. Her physical abilities were declining over a period of time. She also wanted to be able to ask her husband to help her. In her case, she wanted him to help her to travel to Dignatis, Switzerland, and at a time she chose in order for the Swiss clinic to assist her in ending her life.
So, she wanted her husband to help her to Dignatis and then there the Swiss clinic would help her end her life.
Because of the failure of Diane Pretty, Debbie Purdy took a slightly different legal tack. What she said, and rather than focusing on the law against assisting suicide per se, she said the lack of guidance on the DPP’s decision to prosecute is what offended her Article 8 rights.
The lack of any guidance which she and her husband could use to take their decision, that is what breached her Article 8 rights.
Now, this did go all the way to the House of Lords, and she was successful. The House of Lords agreed with her. This lack of guidance meant that people like Debbie Purdy could not take an informed decision with their husband as to the risk of him being prosecuted. So, there needed to be some guidance so that they could judge their future conduct.
Effectively, that is what the House of Lords said; in order for people to take decisions the DPP had to give some guidance as to the exercise of its discretion under Section 2(4).
Nicklinson Litigation
When Tony Nicklinson lost at first instance…so, his claim when all the way up to the Supreme Court and indeed the European Court,…but when he lost at first instance he did give up. He stopped eating and he died six weeks later.
So, Tony Nicklinson’s part of the story is taken up by his wife, Elizabeth Nicklinson, on his behalf.
When the case reached the Court of Appeal, his claim was joined with that of another person’s, Paul Lamb.
So, by the time that Nicklinson’s case gets to the Court of Appeal it has been joined by another case – that of Paul Lamb.
Paul Lamb had been injured in a road traffic accident, and the only function that he had left in his body was some minimal function in his right hand. And he wanted doctors to be able to help him kill himself because he didn’t want to ask his family. He didn’t want to put them in that difficult position.
So, Paul Lamb…he challenged the law on assisting suicide. He wanted to be able to ask his doctors to help him, and he felt that the DPP guidance was inappropriate.
Now, just to complete the factual picture, and I will get to the lawn a second, when the case eventually reached the Supreme Court, a third case was joint. That was the case of of a man known as ‘Martin’. Now, his true identity is not revealed, so he is known as ‘Martin’. He is, like Nicklinson, suffering from “locked in syndrome”, only able to communicate by blinking with a specially adapted computer.
His situation was slightly different, however, in that his family had made it clear that they were not prepared to help them.
So, you have three men – one of them who didn’t wish to ask his family for help, and the other two, Nicklinson and ‘Martin’ whose families were unwilling to help. All three thought the law thwarted them in their desire to end their lives by not protecting doctors.
The first issue that the Supreme Court had to decide on was whether or not, and this goes back really to the ground that Diane Pretty had started off on, the law on assisted suicide was compatible with Article 8 of the European Convention.
Reaching a very similar decision as in Diane Pretty’s case, the Supreme Court held that the law on suicide and assisting suicide was for each member state to decide; that Parliament was the best venue for this discussion.
But, this final point is important… A very clear warning was given by the Supreme Court to Parliament that they felt that the law on assisting suicide probably did breach Article 8 and that Parliament needed to look at this.
It was a full Supreme Court with 11 judges. It was a 2 to 9 decision; so, nine in the majority. There were actually two in the minority who already felt that the law was not compliant. But the majority view was that this was not for the Supreme Court and was for Parliament to resolve. But, if Parliament does not than the Supreme Court reserves the right to look at this again if a future case arises.
Now, second issue, which was particularly pertinent to the ‘Martin’ person, was that the DPP policy as to the discretion under Section 2(4) was not clear enough when it came to the medical profession.
So, ‘Martin’s’ argument was slightly different – there needed to be more guidance as to when a medical person could avoid prosecution.
That argument succeeded before the Court of Appeal. So, he is actually one this point in the Court of Appeal. But unfortunately, again, the Supreme Court disagreed. They felt that this was a discretion and therefore was wrong for the Court to dictate what should be in that policy.
Now, you might think that that is a lot of detail on cases which effectively haven’t worked, but actually these are really important cases. They have brought the issue of dying to the forefront. Hopefully, some of you will recognize the cases, the names, and the faces, because they have been in the press a lot over the last sort of 10 years.
Just to summarize before I move on:
Domestically, the only successful challenge was by Debbie Purdy, and that resulted in the DPP guidance that we have got.
None of the other challenges have worked. But you have a clear indication from the Supreme Court that this is an area that they consider problematic and that they think Parliament should relook at.
B v An NHS Hospital Trust [2002]
The patient here, Mrs. B, was rendered tetraplegic following a horse riding accident. She was competent conscious, but on a ventilator. So, she was not able to breed for herself. So, she was paralyzed from the upper neck down, but she remained conscious and cognitive at all time.
She got a declaration of competency from the court of protection. What she asked her doctors to do was to turn off her ventilator.
She said that the continuation of ventilation was without her consent and therefore it was unlawful – it was a battery.
So, that was her argument – she was on ventilation, she got a declaration of competency to support what she wanted, and she asked her doctors to turn off her ventilation arguing that to continue it without her consent was unlawful. It was a battery.
Now, the case came about because the medical team at this hospital were reluctant to comply. She was a patient who could talk, who could still exist and was there, and the medical team felt unable morally to turn off the medical ventilation equipment.
So, if you would like, the doctors are saying that we have a conscientious objection to doing this – “sanctity of life for us is what we are trained to protect.” The case comes about because the doctors refused her request.
But the court confirmed that the decision was her’s. The court acknowledged that some people’s lives are intolerable, and they have, as with any competent patient, a right to decide their treatment. Ventilation is treatment; she could decide that it stopped. That is exactly what happened in the end.
I think she was then moved to a different hospital. The doctors in question were protected because obviously they felt very concerned about this. She was moved to a different hospital; the ventilator was turned off, and she did die and was passed away.
Ventilation is treatment just like ANH. It was her decision because she was competent.
This is another area of ethical controversy. Yet, in contrast to abortion, and in contrast to other areas like IVF, there is no right to conscientiously object. So, it is different in that regard to other areas that we have looked at.
Arguments for euthanasia
The arguments in favour of change:
1) Autonomy:
Firstly, currently the law does not allow for patient autonomy.
There are the odd exceptions, like the case we have just looked at where the person happened to be conscious with capacity and already being treated. But if you compare that, as indeed one of your articles in your tutorial does with Diane Pretty’s case, Diane Pretty was competent, conscious, but wasn’t being treated. So, one of them can decide not to continue a treatment and die; the other one can’t avail herself of any assistance.
So, there are some fine distinctions. But generally, autonomy is not well protected within this body of law.
2) Mercy and Compassion:
The virtue ethics are also not well protected within this body of law.
The ability to do what you think is in your patience best interests – “beneficence”, as well. It is not reflected very well in the law.
Making the point about assisted suicide, the DPP guidelines are not focused on the medical profession, so there is very little to protect the virtues of the medical team.
3) Incoherency of Current Law:
For me, and for many, and Emily Jackson being one, one of the real problems…and this is a reason for reform… Is that the law currently lacks coherency.
It is rather ad hoc and there are lots of fine distinctions between acts and omissions; between things which are basic care and treatment.
So, currently what can lawfully be done…commenters make the point, that this might result in a really unpleasant death.
So, for example withdrawing artificial nutrition and hydration as in Tony Bland’s case, he starved to death over a period of five weeks. Debbie Purdy is an extreme case; she couldn’t, because she had to go through the courts, in time put in place her suicide arrangements. So, she took a year to die.
In many of the cases, the law impedes that dignity of dying. Even when you do something lawfully like with Tony Bland, the death that results is hardly dignified.
John Harris says that that is in it self a form of harm; the law which allows these horrible deaths is a form of harm – “malfeasance”.
4) Benefits of Clearer Law and Regulation:
Now, the other points, which I think is quite important… Because the law is cloudy, there is an awful lot that goes on which never really gets out.
I’m going to use the Doctrine of Double Effect as one example. That definitely happens. Its limits are unclear. But doctors, particularly with elderly and ill patients do use sedation; undoubtedly, that sedation does bring along a more premature death then without it.
So, there are some cloudy areas of law, and under those clouds, doctors, while not quite free to commit murder, they are perhaps not subject to the sanctions or the scrutiny that they would be if the law was better regulated and laid out.
So, this final point is that if we thought about this and if we legislated to allow certain things, then the law would become clearer and easier to regulate. There would be less scope for abuse.
That of course, would be in everyone’s best interests – which is a “utilitarian” argument.
Everyone would be better off – there be more scope to dignity of dying, and there would be less scope for abuse.
Arguments against euthanasia
1) Sanctity of life:
This is supported by religious ethics.
Death, as with birth, is part of our natural process and other people should not tamper with it.
So, there is a very strong argument against any change. We need a robust law in order to protect sanctity of life.
2) Autonomy is not Absolute and should only Prevail if Life Flourishes:
There is another argument to that in cases like this, autonomy should not be absolute because we don’t live in a vacuum; we don’t really live our lives as individuals. So, perhaps we shouldn’t feel that we can end our lives as individuals.
We are part of a community; we have family; and there are implications to our community as regards to the decisions we take.
Effectively, this argument would allow some scope for autonomous decisions but in a regulated way that protects the wider community and also the family community.
3) Legislation Not Needed, Rather Better End of Life Care is the Answer:
Legislation is really not what we need. What we need is a better approach to end-of-life care.
The sense, particularly for the elderly, is that they are a burden and we need to get rid of them quite quickly.
We need to rethink the way that we treat people towards the end of their life.
If the death that people experience is better, then the need for legislative change moves away. That is the essential argument.
4) Positive Legislation could have Negative Consequences:
This is a point I’ve made already. This goes back to the purpose of the law both on murder but also on assisting suicide.
You need a very robust protective law to protect the vulnerable in society – those people who are suggestible, and who may end up taking their own life because they feel they are doing their family a favour.
The other argument is that positive legislation to legalize either euthanasia and/or assisting in someone’s suicide could have some negative consequences.
Now, if you have done your reading for the tutorial, this is one which Emily Jackson talks about. It could have a negative impact on the doctor-patient relationship.
