UK Medical Law - Assignment Example

Euthanasia is the act of inducing easy death and refers to acts, which terminate or shorten life painlessly in order to end suffering in instances where there is no prospect of a cure. There are only two options available to patients with terminal illness, either a slow death involving unrelieved suffering or euthanasia. Terminally ill patients suffer from depression or a false sense of worthlessness, which may affect their judgment. Their decision-making may also be affected by confusion or dementia, which could be relieved with appropriate treatment. It is very important to bear in mind that, patients who on admission say 'let me die' usually after effective relief from symptoms are most grateful that their request was not acceded to. Terminally ill patients are also adaptable to a high level of disability as they value what little quality of life they have left. The legal position in respect of selective non-treatment was addressed by the House of Lords in Airedale NHS Trust v Bland1, wherein the applicant, a health authority sought an order to discontinue life-sustaining treatment and that the only medical treatment to be furnished should be for the purpose of enabling a peaceful and dignified death with the minimum of pain. The family of the patient supported this application. The respondent, 21-year-old Anthony Bland, had been in a persistently vegetative state for 3 years and though not brain dead, he had no cognitive function. The unanimous opinion of all the doctors who examined him was that there was no hope of recovery or improvement. Under these circumstances, it was considered appropriate to cease further treatment. The judge granted the order as requested and this was confirmed by both the Court of Appeals and the House of Lords. The House of Lords held that a doctor, who has to care for a patient who is incapable of consenting to treatment, is under no obligation to prolong the patient's life regardless of the quality thereof. The court referred to the best interest condition as set out in F v West Berkshire Health Authority2 and held that medical treatment, which includes artificial feeding, could be withheld if doing so was in the patient's best interests. To determine what course of action would further the best interests of the patient, the court used the test laid down in Bolam v Friern Hospital Management Committee3, namely whether the proposed conduct would be in accordance with the opinion of a large informed and responsible group of medical practitioners. As the cessation of life-supporting treatment in this case was in accordance with the criteria set out in a discussion paper by the British Medical Association4, the court found that there had been compliance with the Bolam requirement. In this case Lord Mustill pointed to the need for legislation relating to euthanasia stating that, "The whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the general criminal law, but also of a sound procedural framework within which the rules can be applied to individual cases." In R (Pretty) v. Director of Public Prosecutions5, Lord Steyn reiterated that reform of the law on assisted suicide should be undertaken by the legislature rather than by judges. Case law demonstrates the paradox that results from the current law. As Dame Butler-Sloss P. emphasised in B v An NHS Hospital Trust6, a competent patient may refuse any form of medical treatment, even life-prolonging medical treatment, for whatever reason. B was able to insist that the ventilator, which kept her alive, was to be disconnected. Diane Pretty was also able to make a competent and autonomous choice about the timing and manner of her death, but was unable to implement this decision due to a prohibition of assisted suicide and thus died in exactly the way she had tried to avoid. Bland, who could not make such a choice, was deemed to have an existence whose futility justified the withdrawal of nutrition and hydration leading, inevitably, to his death. In the case of Re J (a minor)7 J, an infant had suffered serious brain damage at birth. Large areas of his brain were filled with fluid instead of tissue. This brought on convulsions and stoppage of breathing. He was twice linked to a ventilator for long periods. It was highly that he would develop spastic quadriplegia and it was debatable whether he would ever be able to sit up or hold his head upright. He would never speak though he would be able to feel pain and it was possible that he would achieve the ability to smile or to cry. His life expectancy was limited. The question arose as to whether J should again be linked to a ventilator in the event of stoppage of breathing. Two medical practitioners submitted a report, which indicated that it would not be in J's interest to be ventilated again. The court issued an order in accordance with the experts' report. The argument raised against the issuing of the order was that the court was not in a position to evaluate the consequences of death and that respect for the sanctity of human life and the requirements of public policy precluded attempts by the court to evaluate the quality of life of a disabled person. This submission was rejected by the Court of Appeal. It was also submitted that the court could not issue a life-ending order unless it was absolutely certain that the quality of the child's subsequent life would be intolerable to the child and demonstrably so awful that in effect the child must be condemned to die. Despite being prohibited, both AVE or active voluntary euthanasia and PAS or physician assisted suicide occur. The Assisted Dying for the Terminally Ill Bill8, whose objective is to enable doctors to perform AVE under strictly limited circumstances, was recently introduced in the House of Lords. Case law confirms that the best interest model of decision-making is concerned not only with the physical well-being of the patient, but extends to psychological, moral, ethical and social interests. However, the opacity of the best interests test implies that it is susceptible to manipulation. First, there is the risk that the values of the decision-maker will prevail over those of the patient and that this will lead to decisions, which will be paternalistic. Second, references to the wider interests of the patient are capable of masking the advancement of third party interests and of resource-based institutional agendas. This approach is contrary to the spirit of the Mental Capacity Act 20059, which emphasises the promotion of self-determination for adults who lack capacity. It enables anticipatory treatment decisions to be made in advance of the onset of incapacity and the appointment of proxy decision-makers to make decisions on behalf of incapacitated patients. Physician-assisted suicide and euthanasia are simplistic, wrong and dangerous responses to the complex reality of human death. For physicians to give lethal injections to their patients or to assist them to commit suicide is inherently wrong from the perspective of principle-based or deontological ethics. Even on a utilitarian or situational ethics analysis, this is wrong, as the risks and harms far outweigh the benefits. Physician assisted suicide and euthanasia places people who are at their weakest and most vulnerable in a situation where they are made to believe that their only alternative is death. The right to refuse treatment flows from a right to inviolability a right not to be touched, including by continuing treatment, without one's consent and not from a right to die. There is therefore a right to have treatment withdrawn, which means that death will result from the patient's underlying illness, but there is no right to be killed. Causing a patient's death through administering a lethal injection is different from death resulting from refusal of treatment. The same line of pro-euthanasia argument is also constructed through a confusion of means and ends. This argument is that when death is the inevitable outcome, the means used to achieve that, whether withdrawing life support or a lethal injection, are morally irrelevant and therefore ought to be legally irrelevant. This is unacceptable and the means through which we die matter morally and should continue to matter legally. The issue is not one of if we die but of how we die. Our moral intuition tells us that there are important distinctions between letting nature take its course, including refusal of life-support treatment, and killing a dying person. Advocates of euthanasia argue that that how we die is just a private matter. Opponents of legalising euthanasia reject that argument. They believe each person's death necessarily involves others, including healthcare professionals, and societal values and symbols. Moreover, if euthanasia is involved, how we die cannot be just a private matter of self-determination and personal beliefs, because euthanasia "is an act that requires two people to make it possible and a complicit society to make it acceptable10." Bibliography. 1. Diesfeld, K and Freckleton, I (2003), Involuntary Detention and Therapeutic Jurisprudence, International Perspectives on Civil Commitment (Dartmouth: Ashgate). 2. Fennell, P (1996) Treatment Without Consent: Law, Psychiatry and the Treatment of Mentally Disordered People Since 1845 (London: Routledge) [KJ109 .M3F3]. 3. Glover-Thomas, N (2002), Reconstructing Mental Health Law and Policy (London: Sweet & Maxwell) [KM20 .G5]. 4. Jonathan Moreno (1995). Arguing Euthanasia: The Controversy Over Mercy Killing, Assisted Suicide, And The "Right To Die". (Touchstone. ISBN: 0684807602). 5. Michael Manning (1998). Euthanasia and Physician - Assisted Suicide.(Paulist Press. ISBN: 0809138042). 6. Somerville M. Death talk: the case against euthanasia and physician-assisted suicide. Montreal: McGill Queen's University Press, 2001: xiii. Read More