Medicine, Ethics and the Law: Physician Assisted Suicide - Essay Example

Ethics and English Medical Law Physician Assisted Suicide Introduction It would be ethically necessary for English medical law to create a framework for legalising physician assisted dying. The following discussion proves this contention. This work deals with the issues surrounding the ethical aspects of physician assisted suicide in English law. In this regard some important concepts of ethics provided by the British Medical Association have been discussed. In addition, cases pertaining to euthanasia in English law have been examined. Subsequently, application of the relevant ethical principles with respect to the decided cases has been scrutinised. Finally conclusions were arrived at based on the findings of the work. This work establishes that the courts have not accorded importance to ethical principles, while providing their rulings on euthanasia cases. Medical law can be regarded as a melange that derives its basis from several branches of the law. Previously the correlation betwixt medicine and law had been characterised by mutual deference. In the past, medical decisions were considered to be the exclusive preserve of the clinicians.1 Currently, the courts have been willing, to a greater extent, to entertain challenges to the decisions taken by the members of the medical profession. As such, in Chester v Afshar,2 Steyn LJ declared that paternalism had no room in medical law. At the same time, the doctors were also grateful and relieved that the courts were resolving cases involving intricate issues of ethics.3 As such, judicial activism has made inroads into the ethical issues surrounding the cases pertaining to euthanasia. Ethical Concepts With regard to assisted dying, the British Medical Association espouses the following principles. First, doctors should help the patients to obtain a good death; however, such acts have to comply with the law. Second, the patients should be permitted to control the dying process, to the extent possible, and the attending doctors have to admit the views of the patients.4 Third, the autonomy accorded to patients, albeit, important, cannot ride roughshod over other principles, and it is indispensable to arrive at an appropriate balance. Fourth, the personal choices of individuals should not be permitted to cause harm to others. Fifth, the law precludes the deliberate causing of premature death. In this context, the British Medical Association, firmly believes that the intentional causing of death is contrary to the ethos of medicine. Sixth, there is a basic difference between deliberately causing death, and withdrawing or withholding treatment.5 As such, Beneficence demands, from the ethical point of view that pain and other symptoms should be controlled. As things stand, there is an absence of clarity regarding the legal status of control of pain and other systems. However, clinicians should distance themselves from legal peril, by adhering to established guidelines that differentiate these practices from euthanasia.6 The majority of the decision making at the end of life is justified by employing advance care planning. This has been supported ethically by respect for autonomy, and it has been legally acknowledged in the majority of the western nations. Decisions taken by patients or their representatives to withdraw or withhold life-sustaining treatment proposed by a clinician, find support in the ethical principle of respect for patient autonomy and the legal principle of informed consent. On the other hand, the legal and ethical issues associated with the inappropriate employment of life-sustaining treatments, demanded by patients and substitute decision makers that contest the objections raised by the physicians, are unclear.7 With the exception of a few jurisdictions, euthanasia and assisted suicide are deemed to be against the law. Several scholars, such as Tooley, Lichtenberg and Rachels have contended that the moral distinction between action and omission, in the context of killing a person, is immaterial. These scholars argue that there is a popular misconception in contemporary bioethics discourse. This states that culpable killing necessitates the performance of a positive act. The moment one acknowledges that intentional killing can be carried out by omission, symmetry between action and omission can be considered to be in place. When it is conceded that it is legitimate to deliberately kill by omission, then it would be legitimate to kill by positive action. 8 As such, assisted dying differs essentially from withdrawing or withholding life-prolonging treatment. It is incumbent upon doctors to withhold or withdraw treatment, when a patient with capacity rejects it or when a valid advance decision to decline it had been made by a patient who does not have capacity. Furthermore, doctors are prohibited from providing treatment that is of no avail, and which cannot realise its aim or cannot be of any benefit to the patient. 9 Although, it becomes obvious that the patient will meet his end, the doctor cannot have the intention of extinguishing the patient’s life. The predominant consideration has to be to ensure that patients are not provided with treatment that is not in their best interests. The withholding of life-prolonging treatment had, in the past, been regarded as being akin to adopting active measures to end life. This perception has changed in the present age.10 As such, the withholding or withdrawing of life-sustaining treatment is lawful, only when the patient refuses such treatment or when such treatment is not in the patient’s best interests. In Airedale NHS Trust v Bland,11 it was clearly demonstrated that physicians were not subject to an absolute or overriding obligation to provide treatment that they regarded as inappropriate or to preserve life.12 The contemporary legal position states that under exceptional circumstances, it could be lawful to kill a patient by omission. In such instances, it should be in the best interests of the incompetent patient to withhold life-saving treatment, or the patient should have competently declined to undergo such treatment. At the same time, assisted suicide and euthanasia have not been permitted. Thus, it would be an offence to engage in a positive act that aids or induces death, regardless of the objective evaluation of the best interests of wishes of the patient. Acts of euthanasia are prosecuted under the law of murder. However, assisting suicide is prosecuted under the Coroners and Justice Act 2009.13 In R (Pretty) v DPP,14 Diane Pretty was stricken with motor neurone disease. As a consequence, her debilitation was increasing inexorably. She desired to end her life in a Swiss suicide clinic, and she wanted her husband to administer the fatal injection. The Director of Public Prosecutions (DPP) refused to grant her permission. She unsuccessfully claimed in the House of Lords and the European Court of Human Rights (ECtHR) that her rights under the European Convention on Human Rights (ECHR) had been violated by the Suicide Act 1961. Her contention was rejected at the House of Lords and the ECtHR. 15 Several scholars decried this decision. In fact, in English society, the notion that the right to die was justified under certain exceptional circumstances, was slowly gaining ground. As a result, it was being increasingly perceived among the populace that the individuals assisting their loved ones to commit suicide, under certain circumstances, were not to be prosecuted.16 This case reveals the true picture regarding the application of moral principles to a situation under special circumstances. In this case, the patient, who was competent and accustomed to taking decisions of her own, had been deprived of the right to autonomy by the court, due to the fact that her wish to end life had not been granted. Similarly, in R (Purdy) v DPP, Purdy wished to end her life in a Swiss clinic, and she wanted her husband to assist in the act. She approached the court to obtain clarification as to whether a loved one who assisted her in committing suicide would be prosecuted. The House of Lords and the ECtHR held that public interest was superior to individual interest. Since, the public interest would be harmed, if she were permitted to carry out her plans, permission was not granted to her.17 This case suggests that the courts have failed to accord importance to the principles of autonomy and beneficence. If the courts would have allowed Purdy’s husband to assist her in fulfilling her wish, it would have demonstrated the upholding of the principle of beneficence, in addition to the right to autonomy of Purdy. The idea of autonomy is based on the concept that individuals should possess the right to self-determination with respect to euthanasia. This implies the right to impose the duty to conduct euthanasia upon another person. Therefore, autonomy has to be supplemented by conceding that euthanasia entails the involvement of another person to perform the act of euthanasia.18 Hence, doctors should be protected from prosecution under the ethical norms of beneficence, as long as their intentions are in the best interests of the client. However, Article 2(1) of the ECHR provides that the right to life of every individual has to be protected. With the exception of a person sentenced, under the laws of that nation, to death, no person is to be deprived of his life.19 This prohibition upon depriving a person of his life applies even to patients who are suffering, are on the brink of death, and who independently and voluntarily request to be put to death.20 As opined by Goff LJ, in Bland, it is illegal for a doctor to administer a fatal injection, regardless of the suffering of the patient. Common law regards euthanasia as an illegal act. As such, in the majority of the cases where euthanasia is involved, there exists a conflict between human rights and ethical norms. In most of these cases, the courts accord importance to the protection of human rights. As such, in the 1997 case of Annie Lindsell, the court refused permission for injecting her with large doses of diamorphine to provide her relief and to allow her die peacefully. She was suffering from the motor neurone disease, and paralysis had been inexorably setting in.21 However, in the Miss B case, the patient had been paralysed from the neck down. She approached the court for having the artificial respiration, being provided to her, withdrawn. This was granted by the court, which held that she had the necessary mental competence to refuse life-sustaining treatment.22 This case suggests the presence of limited progress in the area of application of the norms of autonomy. In the Mary Ormerod incidence of 1995, the attending physician, in consultation with the family members of Ormerod, withheld hydration and nutrition to the patient. Ormerod was beyond all medical assistance, and had ceased to communicate with the external world. This doctor was charged with murder. However, the final punishment was suspension for six months. 23 On some occasions, doctors would be safeguarded by the doctrine of double effect. However, the doctrine of double effect involves a number of difficulties. First, people tend to have several intentions. Second, the emphasis of this doctrine is upon what physicians state rather than what they actually do.24 This double effect is integral to discussions related to palliative care or medical care for the terminally ill and who require relief from their terrible pain. The underlying assumptions are; first, the pain relieving drugs invariably produce a hastening of death. Second, such hastening of death is a welcome side effect of the drugs providing relief from pain in palliative care. Third, it would be impermissible to deliberately hasten death, with a view to eliminating a terminally ill person’s suffering.25 As such, with the application of double effect principle and ethical norms of beneficence will be supported to some extent, in the context of doctors involved in cases of euthanasia. As such, an important facet of medical law and ethics is the notion of patient autonomy. This states that patients are entitled to refuse treatment, even if the outcome of such refusal is their death. Moreover, the physician is duty bound to reduce the pain and suffering of patients. 26 In the absence of any other alternative, the doctor should be permitted to actively end the patient’s life. This is dictated by the principle of beneficence. Conclusion Several arguments have come into existence, with respect to physician assisted suicide and active voluntary euthanasia. The majority of these are derived from opposing interpretations regarding the worth of human dignity and life; and the degree to which individual independence or inviolability of life issues are ranked in end of life decision making. According to the case law discussed above, ethical principles such as autonomy and beneficence have been relegated to the background by the courts in the majority of the euthanasia cases in the UK. Hence, for legalising physician assisted suicide, a strong ethical frame work is required for guiding the courts in complex situations relating to ethical dilemmas. As per the above discussion and case law, it can be surmised that a strong ethical framework is essential for legalising euthanasia in the UK. Abortion Rights Introduction This work consists of issues with respect to restricting the conditions pertaining to the right to abortion in English law. In this regard, primarily legislation pertaining to the issue of abortion has been discussed. In addition, the conditions being applied, while granting permission to undergo abortion have been discussed. Moreover, the relevant case law with respect to the area of abortion has been examined. This work claims that it is not required to create a moral framework to restrict the circumstances in which an abortion is legally permissible. This is because, moral principles such as autonomy and beneficence have been accorded importance by the courts at the time of taking decisions in this area. The following discussion proves this contention. Legislation of Abortion The Abortion Act of 1967 served to formally liberalise abortion services in the UK. With the implementation of this Act, statutory defences emerged for the offences of procuring miscarriage, and the destruction of a viable fœtus. Abortion is legally permitted up to 24 weeks of gestation. In the event of the pregnancy having advanced beyond 24 weeks, abortion is legally permitted only under the following circumstances. Two physicians have to certify that abortion is essential for averting grave permanent injury to the mental or physical health of the pregnant female. Moreover, these physicians have to certify that continuing with the pregnancy would pose a risk to the life of the pregnant woman that was greater than the risk posed by the termination of the pregnancy.27 Subsequently, the Human Fertilisation and Embryology Act 1990 amended the Abortion Act 1967. It applies to England, Scotland and Wales and describes the situations under which abortions can be legally conducted. Abortion is legally permitted prior to the 24th week of gestation. It is also permitted, under this Act, when the continuation of the pregnancy would seriously harm the pregnant female’s mental or physical health or that of her family’s existing children. The imposition of the 28-week limit incorporated viability as an indispensable legal condition. 28 In addition, Section 58 of the Offences Against the Person Act 1861 provided protection to the fœtus during its early stages of development. This had the effect of rendering the intentional termination of pregnancy illegal. However, the Infant Life (Preservation) Act 1929 provided that it could be legally permissible to terminate a pregnancy, if the life of the pregnant woman was at risk.29 Furthermore, the British Medical Association has described certain factors as being relevant to abortion, with respect to the legal systems. These are; woman’s request, economic or social reasons, fœtal impairment or disability, pregnancy caused by incest or rape, danger to the mental or physical health of the woman, and in order to save the life of the pregnant woman.30 However, those who oppose abortion on the basis of genetic defect proffer a plethora of moral justifications for their intransigent stance. Some of these detractors have clearly expressed their opposition to any form of abortion. These individuals regard abortion as the murder of the innocent. 31 Moreover, several criticisms from the perspectives of disability and feminism have opposed these eugenic abortions. As a result, from the point of view of certain feminist perspectives, the screening of pregnant females for genetic defects or neural tube defects is tantamount to a forced variant of eugenics. This is due to the pressure exerted upon the pregnant female to undergo a screening and thereafter an abortion upon testing positive. The disability groups promote moral criticism by contending that selective abortion on the grounds of genetic condition is morally unacceptable.32 This is due to the fact that it promotes negative discrimination against people who are inflicted upon with the conditions for which abortion has been made available. The following case law discloses the attitude of the courts, while dealing with abortion cases. In R v Bourne,33 Dr. Aleck Bourne was charged with breach of Section 58 of the Offences Against the Person Act 1861. This transpired in the year 1938, when he performed an abortion upon a girl who had been raped. Bourne argued that the abortion had been essential for preserving the health of the pregnant girl. Macnaghten J, stated that it had to be established beyond any reasonable doubt that abortion was not conducted for the sole purpose of safeguarding the life of the pregnant female. 34 He further stated that if the doctor had reasonable grounds to believe that the probable outcome of the pregnancy would subject the pregnant woman to stress that would render her a mental or physical wreck, then the doctor was justified in his action. In such cases, it had to be acknowledged that the doctor’s actions were aimed at preserving the life of the pregnant female.35 As a result, under the common law, when a physician was acting in good faith and on the basis of an honestly held belief, abortion could be regarded as being lawful, if it was indispensable for promoting the health or life of the pregnant female As such, in this case, Dr. Alex Bourne was acquitted of the charge of having conducted an illegal abortion. It was firmly believed by this doctor that abortion should be lawful under exceptional circumstances. He had performed an abortion upon a 14 year old girl who had been made pregnant on account of having being raped by several men. This girl had developed suicidal tendencies and Bourne decided to terminate her pregnancy, thereby dissuading her from killing herself.36 During his trial, Bourne contended that the law permitted abortion prior to the 28th week of gestation, and allowed abortion when the pregnant female’s mental or physical health was in danger. This argument was accepted by the court, which struck down the charges against him. Despite this decision, there was considerable uncertainty, as the approval of a psychiatrist was essential for legally undergoing an abortion, after the 28th week of gestation. Access to psychiatrists was expensive and this privilege could be enjoyed only by the comparatively wealthier females.37 This case reveals the positive attitude adopted by the courts in upholding the beneficence principle, whilst pronouncing judgment in cases involving abortion, and in the context of the doctor who took the decision to conduct the abortion. Nevertheless, there is considerable debate in the nations that permit abortion regarding the upper limit to be fixed on the gestational age at which abortion is to be legal. Abortions conducted after 24 weeks of gestation generate concerns regarding fœtal viability. It has been observed that several practitioners are disinclined to conduct an abortion, when the fœtus, under different circumstances, would have bene provided with complete neonatal intensive care. In the majority of the instances, women seek abortion during the earlier part of their pregnancy. However, there do exist situations, wherein the pregnant woman has to be necessarily subjected to an abortion. These include abortions for fœtal abnormality, which could require time to diagnose and confirm; or with regard to a developing health issue in the pregnant woman. 38 Article 8 of the ECHR promotes the right to privacy. This right protects the rights of a pregnant female, with respect to the process of abortion. The ECtHR made this observation during its ruling in the Tysiac v Poland case. 39 This case discloses the importance accorded to the autonomy of pregnant women, by the court. Moreover, in D v Ireland, a pregnant woman decided to undergo an abortion after coming to know that one of the two fœtuses had died in the womb and that the other had developed a fatal anomaly. As abortion was deemed a crime in Ireland, she came to the UK to undergo the same. She contended that Ireland had violated the ECHR due to its restrictions on the provision of medical counsel to patients regarding abortion. In addition, the doctor had been prevented by the Irish authorities from providing her with full referrals for obtaining legal services abroad.40 The ECtHR refused to admit her case, stating that she had failed to exhaust the domestic remedies available to her. In Paton v United Kingdom, the ECtHR affirmed the right of a pregnant female to decide upon the fate of her fœtus. The Court held that first, the pregnancy affects the female. Since, it is her body that is involved, she should be entitled to decide upon its treatment. Second, if her husband was to be consulted regarding his wife’s desire to undergo an abortion, then the oppression of women in violent or abusive relationships would be perpetuated.41 This case reveals the partiality of the courts towards ethical norms, while conferring autonomy rights upon woman, with respect to abortion issues. Furthermore, in Northern Health and Social Services Board v AMNH,42 MacDermott LJ held that a life threatening situation related to the following. The mother’s physical and mental health would be placed in serious jeopardy due to the continuation of the pregnancy. 43 In such instances, it was lawful for the doctor to terminate the pregnancy. Conclusion According to the above discussion and case law, it has been established that the courts accord importance to ethical principles, whilst hearing abortion cases. They grant importance to autonomy and beneficence. Several conditions were imposed by the legislation and British Medical Association with respect to abortion issues. These conditions were framed for the wellbeing of the pregnant woman, as well as the fœtus. The majority of the cases, discussed in this work, have shown that the courts have been according priority to autonomy and beneficence, at the time of deciding in abortion cases. Consequently, it is not necessary to have an ethical framework for restricting the conditions imposed upon abortion. Bibliography Abortion Act 1967. Airedale NHS Trust v Bland (1993) AC 789. Bainham, A, The International Survey of Family Law: 1996, Martinus Nijhoff Publishers, The Hague, The Netherlands, 1998. BBC News, Whose decision is it anyway?, 2000, retrieved 12 January 2015, . Brannan, S, E Chrispin, M Davies, V English, R Mussell, J Sheather & A Sommerville, Medical Ethics Today The BMA’s handbook of ethics and law, Wiley & Sons, London, UK, 2012. Chester v Afshar (2004) UKHL 41. Cook, RJ, BM Dickens & JN Erdman, ‘Emergency contraception, abortion and evidence-based law’, International Journal of Gynecology and Obstetrics, vol. 93, no.2, 2006, pp. 191-197. Coroners and Justice Act 2009. D v Ireland (2006) Application no. 26499/02. European Convention on Human Rights, 1950. Gillon, R, ‘Eugenics, contraception, abortion and ethics’, Journal of Medical Ethics, vol. 24, no.4, 1998, pp. 219-220. Greasley, K, ‘R(Purdy) v DPP and the Case for Wilful Blindness’, Oxford Journal of Legal Studies, vol. 30, no.2, 2010, pp. 301-326. Herring, J, Medical Law and Ethics, 5th edn, Oxford University Press, Oxford, UK, 2014. Human Fertilisation and Embryology Act 1990. Infant Life (Preservation) Act 1929. Jones, K, ‘Ethics of abortion: the arguments for and against’, Nursing Standard, vol. 21, no. 37, 2007, pp. 45-48. Keown, J, ‘The case of Ms B: suicide’s slippery slope?’, Journal of Medical Ethics, vol. 28, 2002, pp. 238-239. Keown, J, The Law and Ethics of Medicine, Oxford University Press, Oxford, UK, 2012. Lo, B, Resolving Ethical Dilemmas: A Guide for Clinicians, Lippincott Williams & Wilkins, Philadelphia, PA, USA, 2013. McHale JV, ‘Sex selection and abortion: a case for legal re-evaluation?’, British Journal of Nursing, vol. 21, no.5, 2012, pp. 308-309. McIntyre, A, End of Life Decision-Making, 2014, retrieved 10 Janaury 2015, . Nelson, E, Law, Policy and Reproductive Autonomy, Bloomsbury Publishing, Abingdon, Great Britain, 2013. Northern Health and Social Services Board v AMNH [1994] NIJB 1. Offences Against the Person Act 1861. Paton v United Kingdom (1981) 3 EHRR 408. Peterson, C, Assisted Suicide and Euthanasia: A Natural Law Ethics Approach, Ashgate Publishing Limited, Hampshire, UK, 2012. R v Bourne (1939) 1 KB 687. R (Pretty) v DPP (2002) 1 AC 800. R (Purdy) v DPP (2009) UKHL 45. Rogers, WA & A Braunack-Mayer, Practical Ethics for General Practice, Oxford University Press, Oxford, UK, 2008. Singer, PA, & AM Viens,The Cambridge Textbook of Bioethics, Cambridge University Press, Cambridge, UK, 2008. Smith, WE, ‘Comment: That which does not kill us, does it make us stronger? Legal aspects of pain management in Great Britain’, Pace International Law Review, vol. 10, 1998, pp. 649-684. Spencer, JR, ‘Assisted Suicide and the Discretion to Prosecute’, The Cambridge Law Journal, vol. 68, no.3, 2009, pp. 493-495. The Danish Council of Ethics, Arguments for and against euthanasia, 2006, retrieved 12 January 2015, . Tysiac v Poland (2007) 1 FCR 666. Widdershoven, GA, Beyond Autonomy and Beneficence, retrieved 11 Janaury 2015, . Read More