The Law on Euthanasia from a Right-Based Perspective - Essay Example

Running Head: Law on Euthanasia Evaluate the law on euthanasia from a right-based perspective Discuss with reference to Re Bland and Re A [Name Of The Student] [Name Of The Institute] Evaluate the law on euthanasia from a right-based perspective Discuss with reference to Re Bland and Re A There are two types of euthanasia. They are passive and Active euthanasia. Passive euthanasia commonly refers to the withholding of medical assistance knowing that by doing so will result in the patient's death. In a normal situation, a patient suffering cardiac arrest will usually require resuscitation efforts on the part of a medical team in order to recover. If for whatever reason (perhaps a previously signed 'do not resuscitate order') there is no medical intervention the patient will likely die as a result of the cardiac arrest. This is passive euthanasia. Active euthanasia requires taking measures to accelerate the death of a patient. A common method of active euthanasia is the administering of barbiturates or sleeping pills. The distinction between passive and active euthanasia can be summed up as actually doing something to bring about the death of a patient or doing nothing to save the patient's life. Predictably, euthanasia is the subject of much debate as it generates emotional consideration of moral and social values making it difficult for judges in the U.K. to formulate and adhere to a strict legal code. Each case has to be decided on its own merits. Each time social and moral issues have to be delicately balanced against the applicable law. In 1993, Lord Browne-Wilkinson in the House of Lords, explained that, "The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then judge-made law will of necessity through a gradual and uncertain process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed."(Airedale N.H.S. Trust v Bland 1993) Lord Browne-Wilkinson went on to say, "For these reasons, it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament. " (Airedale NHS Trust v Bland 1993) Public opinion is sharply divided in cases of euthanasia. There are those opposed to any form of euthanasia on the grounds that it requires passing judgments on the quality of the patient's life. The opponents to euthanasia conclude that refusing to administer medical treatment to a patient or actively discontinuing a patient's medical treatment is morally wrong. On the other hand, those in favor of euthanasia argue that the patient is only suffering with no relief in sight, and therefore to keep the patient alive when he is for all intents and purposes, dead, is morally wrong. This is the moral and social background that makes it difficult for courts to apply strict legal guidelines. The moral and social implications were considered in both Re A [2000] HRLR 721 and Airedale NHS Trust v Bland [1993] AC 789. In Bland's case on appeal to the House of Lords, Lord Geoff said "This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care." (Airedale NHS Trust v Bland [1993] AC) By saying this, Lord Geoff dispensed with the moral issue and identified the applicable legal principle upon the issue of euthanasia rests. Is it in the patient's best interests to that his life should b prolonged by continuing with the medical treatment. The court and the law is not concerned with social implications or moral values. The court and the law is only concerned with the patient himself. What is best for him, as opposed to society will guide the court. To better understand this application of legal principles and the disposal of moral codes the facts of the case should be set out. In Bland, Anthony Bland, a 17 and a half year old youth was injured at a football game where he received irreversible brain damage to his cerebral cortex. As a result Anthony Bland was in a persistent vegetative state. The evidence at the trial revealed that medical opinion was unanimous in that a person suffering from this condition was not likely to recover if there were no signs of improvements within 6 months and most certainly no chances of recovery if the condition persisted for a year. Anthony Bland's condition remained negative for three years. As a result of his brain damage he could not hear, feel, see, talk, eat, swallow or even perform bodily functions. He was fed by the introduction of an intravenous tube and disposed of bodily waste by the application of enemas and catheras. In fact, Bland could not even breathe without assistance and oxygen had to be provided artificially. Moreover, Bland was prone to infections and had to medicated with antibiotics on a continuous basis, failure to do so would also result in his death. Both the doctors treating Bland and his parents agreed to discontinue the life preserving medical treatment knowing that it would result in the patient's death. Their reasons for so doing, was that it was pointless to keep him alive in his lifeless condition knowing that his condition would never improve. The doctors, unsure of the legal implications took the case to court for determination and the Solicitor General objected on the grounds that to discontinue Anthony's Bland's medical treatment was no different from murder since the act of doing so contained both essential elements of murder. The Solicitor General argued that the doctors' plan to remove the feeding apparatus was an act of mens rea. The doctors would be doing so knowing that they would cause Anthony Bland's death and that they would be doing so intentionally. The judge at first instance rejected this argument, holding that the act of euthanasia in Anthony Bland's case would not amount to murder and could be done in the patient's best interest. The case was appealed to the court of appeal with similar results and finally came up before the House of Lords. Recognizing the merits of the Solicitor General's argument, the House of Lords considered the public interests as well. The broad issue in this case was the removing of the feeding tube. If looked upon narrowly one might say that the result was to starve the patient to death. But the House of Lords argued that in this particular case the feeding tube could be distinguished from the typical feeding tube because it involved a complicated medical technique. In fact the House of Lords went on to opine that not every case involving euthanasia should be brought to court for legal consideration. There are cases where it is entirely decided by a conscious patient who instructs a doctor at the onset of a terminal illness that in the event they lose consciousness and have to be kept alive be artificial means they would not want that. In such a case the doctor is legally, although not morally bound to follow the patient's wishes. Such cases need not be litigated. In other cases where a patient executes a 'do not resuscitate' deed prior to his illness, a doctor is bound to comply with that wish. As the law stands, a conscious patient of the age of majority has the legal right to refuse to take medical treatment without question. In such circumstances a doctor need not seek legal guidance from the court. Lord Geoff went on to say "an adequate safeguard would be provided if reference to the court was required in certain specific cases, i.e., (1) where there was known to be a medical disagreement as to the diagnosis or prognosis, and (2) problems had arisen with the patient's relatives-disagreement by the next of kin with the medical recommendation; actual or apparent conflict of interest between the next of kin and the patient; dispute between members of the patient's family; or absence of any next of kin to give their consent. There is, I consider, much to be said for the view that an application to the court will not be needed in every case, but only in particular circumstances, such as those suggested by Mr. Francis." (Airedale NHS Trust v Bland) By the year 2000, the British courts had not grown more comfortable considering the moral and social issues associated with the question of euthanasia. In the case of Re A [2000] HRLR 721, the House of Lords had to consider an even more delicate issue of euthanasia. This time it involved the implications of surgically severing conjoined twins, formerly known as Siamese twins. The medically agreed results of the surgery were that one twin would die and the other might live a normal life. To make matters worst, the team of doctors knew in advance of the surgery which twin would definitely die and which twin would likely survive. In any event, if the twins were not severed, both would eventually die. In this case the parents were Roman Catholic and believed that it would be morally wrong to permit the surgical intervention. The doctors argued that it would be in the twins' best interests. They generally believed that God, not doctors should determine whether the twins should live or die. Eventually the matter went to court and ended up at the House of Lords. The twins in question, Jodie and Mary, although they had separate arms and legs, they were joined at the pelvis and shared a liked spine. Moreover, they each had separate organs but shared a bladder. And Jodie's heart and lungs provided both girls with circulatory functions. Jodie was obviously the stronger of the two girls and the strain of keeping both girls alive would certainly result in the death of both girls within weeks. Understandably, the parents loved both girls equally and could not bare the thought of sacrificing Mary to save Jodie. Applying the British 'welfare principle' which puts the child's welfare ahead of the parents, the House of Lords held that the British Courts had the right to override the parents' interests. The courts decide whether or not it is in the child's best interest to entertain an independent and objective opinion. In this case, although it was agreed that the parents could decide to refuse medical treatment for a minor, that decision was displaced by a team of doctors who felt otherwise. At some point it was argued that since Mary was merely an extension of Jodie, kept alive by Jodie, she was not a legal person. The court rejected this argument going on to say that Mary did have a life of her own. Lord Walker argued that Mary did not fall within the definition of still births as set out in the Births and Registrations Act 1965. Justice Walker went on to say that when confronted with issues involving conflicting interests between siblings the court must balance the interests of both children and look to the result that caused the least detriment. Certainly the operation was in Jodie's best interests and not in Mary's best interests. However, one must take into consideration that although the operation would certainly result in Mary's death, avoiding surgery would only prolong her life to a very limited extent. Both twins would surely die. In applying the 'doctrine of necessity' the House of Lords, per Justice Walker, the surgery met the requirements set forth by the doctrine. On balance, it was in the best interests of the twins that the surgery be permitted. The parents decided not to appeal the decision and the surgery was conducted. (Tierney. 19th. August, 2003) The general moral attitude of society is that life is sacred and should be jealously preserved and respected. From a legal position, everyone has the right to decide whether or not they wish to subjected to the indignity of life preserving methods. When a person lacks the capacity to make that the decision the courts and the relevant doctors are empowered to intervene on that person's behalf. These cases usually arise in situations involving the very young or the very old. The sanctity of life is an age old perception which has been a part of the legal system of most countries for many years. The European Convention on Human Rights makes provision for the sanctity of life. Article 2 provides as follows: "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." (European Convention on Human Rights. Article 2) However this prohibition of intentionally killing another must not be taken to mean that the preservation of life at all costs is mandatory. As argued in Bland, the discontinuance of a medical apparatus that provided nutrition to a patient was not the same as 'intentionally killing' Bland. It was instead a means by which the doctors permitted Bland to die from a pre-existing medical condition. Professor Ronald Dworkin argues that the quality of life is important in all considerations regarding the sanctity of life. What is at issue is choices of death. "Abortion, which means killing a human embryo, and euthanasia which means killing a person out of kindness are both choices for death."(Dworkin. 1993. p.3) According to Dworkin, the life of an embryo and that of persons in a persistent vegetative state or some other state which renders them non-responsive to recuperative medical treatment and the environment have a reduced quality of life. The qualities of their lives are reduced to such an extent that they are not capable of benefiting from the preservation of life. Dworkin recognizes a dual existence of human beings. The human being consists of the body and the person. When the person is permanently separated from the body there is for all intents and purposes, nothing left to preserve. The body is merely a shell or a biological unit. Advancing his theory on the sanctity of life, professor Dworkin goes onto say that in a case of dementia for example, the patient "is no longer capable of the acts or attachments that can give it [life] value. Value cannot be poured into a life from the outside; it must be generated by the person whose life it is, and this is no longer possible for him."(Dworkin. 1993 p.230) Professor Dworkin's liberal view of euthanasia is further expresses by his opinion that preserving the life of a patient who is in a persistent vegetative state is counterproductive. It does nothing worthwhile for the patient and imposes on the patient a measure of indignity. He wrote that "nothing in the idea that life has intrinsic importance ... can justify a policy of keeping permanently comatose people alive. The worth of their lives - the character of the lives they have led - cannot be improved just by keeping the bodies they used to inhabit technically alive."(Dworkin. 1993. p. 17) The morality of this argument has been tested in the courts. Strict compliance to the sanctity of life would result in the doctors and caregivers maintaining and preserving lives, which are affectively over for an indefinite period of time. If moral obligations required us to keep a comatose person alive at all costs, who benefits from this requirement if the patient obviously has no capacity to respond to his environment and has no chances of recovering Some guidance can be found in Nigel Simmond's book Central Issues in Jurisprudence. While morality and law is separated by a system of obligations and norms, they are intricately tied. While we may be obliged to follow moral norms, we are not obligated to do so. On the other hand we are obligated to follow legal norms. However, the separation of law and morality is dissolved when one considers that when our law makers draft bills, they consider the moral norms of society. In this sense, the law seeks to address the impracticality of distinguishing between feeling obliged to keep a comatose person alive and feeling obligated to do the same. While religious pressure may impose a moral obligation to do so, the law does not. The law as explained in Bland and Re A, hopes to make it morally acceptable for doctors, patients and loved-ones to make decisions about euthanasia without having to fear legal consequences. The rule of law can be viewed as a tool to indorse morality. It's primary purpose is to accomplish a certain social order. Legal positivist contend however, that while this might be so, law functioning as a tool for the promotion of moral good but it does so on a contingency basis rather than out of necessity. When people talk of rights there is an inescapable predisposition to distinguish between what is essentially right and what rights people ultimately have or should actually have. Put another way, people distinguish between moral and legal rights. Inevitably the two issues are frequently confused. In all likelihood, the most persuasive analysis of rights are not necessarily relevant to moral rights. (Raz. 1984.1) Dworkin rejects positivist notions that law is separate from moral virtues. He maintains the position that rights are predicated on a premise of moral predictions. This is what makes it possible for us to understand individual rights. He also rejects the idea that contemporary jurisprudence is based on the drafters of constitutional legislation. (Dworkin. 1996) Jurists' arguments on the issues dividing and uniting moral and legal issues are important and relevant to the euthanasia debate. This is so because euthanasia itself is intricately united and divided by legal and ethical concerns. A most prominent question that typically arises in the euthanasia debate is, 'what is the patient's rights Follow-up questions inevitably arise from that question. They are questions concerning the patient's autonomy, and his capacity to determine such a grave issue. As discerned from legal arguments in Re A and Airedale NHS v Bland, the law insists that in case concerning euthanasia we must necessarily consider the 'best interests' of the patient. Moral virtues are at odds of the question of euthanasia and the law must serve its purpose of mediating and regulating these differences among individuals. In an article appearing in the Richmond Journal of Philosophy, Christopher Crowley argues that the law has a very important role in dividing morality and law on the issue of euthanasia. "The law also has an important symbolic function, namely to express a society's deepest-held values, in this case the absolute sanctity of human life." (Crowley.2005) The courts obviously shy away from liberalizing the right to euthanasia. Explicit in each of the rulings in Bland and Re A is the court's requirement that both doctors and family members agree to euthanasia in cases where a patient in unable to consent to it or refuse to consent to it. Although not alluded to in the rulings, there is the very real possibility that relatives standing to inherit from the death of the patient may have a disingenuous motive for having the patient's death accelerated. The House of Lords in both cases have stated in unequivocal terms that the decision to use euthanasia or not must always be balanced against the patient's best interests. The arguments against euthanasia are primarily based on the good of society rather than the 'best interests' of the individual. The pro-life advocates are focused on the immorality of deliberately causing the death of another. These advocates fear that once we permit passive euthanasia, we will permit active euthanasia. This could then lead to permitting "future relaxations would have unpredictable consequences, but the slippery slope proponents worry that they could result in eventually permitting acts which we would not even consider now, e.g. killing people with slight mental or physical disabilities. One only has to look at attitudes to abortion since the Abortion Act in 1967 to see how societal attitudes there have changed, and many people feel great unease about the present policy of abortion 'on demand".(Crowley. 2005) Another argument advanced by pro-life advocates is that relaxing the law on euthanasia will also twist our notions are reverence with regards to the medical profession. After all, doctors are viewed as persons who save lives. We expect them to preserve lives, even in hopeless cases since he might discover a cure or effective treatment before the patient expires. Since death is irreversible, there is no hope of curing the patient once he is dead. Active euthanasia is illegal. Therefore all arguments contained herein apply only to passive euthanasia. "The purpose of the law is to regulate the contractual intercourse, enforce it if necessary, and prevent the violation of its terms, and all of this should be open and explicit." (Crowley. 2005) Bearing in mind Dworkin's theory on Taking Rights Seriously, and Simmond's Central Issues In Jurisprudence, the law is not merely a tool for regulating and enforcing law, it is also a proponent for addressing moral values in a given society. This is a difficult threshold to cross. "Normally, the only plausible defence for killing another is in self-defence, or in deferred self-defence as part of a defending army. And even though some see a tenuous link between abortion and self-defence (the mother defending itself from the 'parasite' foetus), this is not plausible at all in the case of euthanasia."(Crowley. 2005) The law recognizes that there are cases in which one can reasonably determine that a patient is better off dead. That is indeed an argument supporting the 'best interests' of the patient. However, this conclusion must not be explicit otherwise it would do a disservice to the very nature of the sanctity of life principle. The realist perception is that there is the truth of what ought fairly to be done in situations involving the possibility of euthanasia. "Moral realism is certainly plausible as a framework for understanding most of the moral business of society. But it contains a certain oversimplification of the modalities of prohibition, permission and obligation that can become problematic. It is possible and very familiar, for example, to be obliged and yet not obliged to do an unpleasant family duty. The practice of gift-giving and forgiveness is not entirely subject to precisely codifiable rules of obligation, nor is it always clear what praise or blame is appropriate." (Crowley. 2005) It is perhaps morally wrong to codify the law relating to passive euthanasia. As it is, it is an entirely private matter and for moral reasons should remain private. The law obviously gets involved when issues concerning fundamental human rights arise out of matters involving euthanasia. This is especially so when a patient cannot speak for himself and there is a dispute among surviving relatives. If legislation were to direct the nature and appropriate time to engage in the practice of passive euthanasia, the sanctity of life would be worth nothing. Therefore the approach taken by the House of Lords in both RE A and Airedale NHS Trust v. Bland is the correct approach. The court's position is that each case must be decided on its own merits. Each patient's fate will be looked at based on the circumstances existing in his case. It would be unreasonable and unsatisfactory to apply the same rule of law to each case of euthanasia. References Airedale N.HS Trust v. Bland [1993] 2 WLR 316 http://www.swarb.co.uk/c/hl/1993airedale_bland.html Viewed August 20th. 2006 Crowley, Christopher. In Praise of Fudge: Euthanasia and the Law. Richmond Journal of Philosophy. Vol 10. 2005 http://www.med.uea.ac.uk/wm094/euthanasia.doc Viewed August 20th. 2006 Dworkin, R. Life s Dominion: An argument about Abortion, Euthanasia and individual Freedom. New York: Harper Collins 1993 Dworkin, R. Taking Life Seriously. Gerald Duckworth & Co. 1996 European Convention on Human Rights. http://www.hrcr.org/docs/Eur_Convention/euroconv.html Viewed August 20th. 2006 Hart, H.L.A. The Concept of Law. University of Oxford Press. 2003. Raz, Joseph. Legal Rights. OJLS 1 Re A [2000] HRLR 721 Tierney, Heather. August 18th. 2003. Conjoined Twins: The Conflict Between Parents and the Courts over the Medical Treatment of Children. http://www.law.du.edu/ilj/online_issues_folder/tierney.final.4.26.03.pdf Viewed August 20th. 2006 Watt, H. Separation as Mutilation. (2001) 9 Medical Law Review. Pp 237-242 http://www.medscape.com/medline/abstract/14696615 Viewed August 20th. 2006. Read More