On the Debate on Euthanasia and the Law in England and Wales - Essay Example

The debate on euthanasia and the law in England and Wales remains divided the courts legislators and the public remain divided on how best to approach incident of euthanasia and mercy killing .critically evaluate from research how incidents of euthanasia and mercy killing should be approached by the criminal courts in England and Wales? Within England and Wales euthanasia is still regarded as illegal. There have been several attempts to address this issue and change the law so that in certain circumstances euthanasia or mercy killing would be allowed. However, although there are many people wanting the legalisation of euthanasia, the opposition to the legalisation remains firm. Most of the campaigners for euthanasia are those directly affected by this, in that, they are themselves suffering from a terminal illness, or have a loved one that has been diagnosed with a terminal illness. The impetus behind the legalisation stems from the desire to end the suffering of the loved one or their own suffering if they are the one diagnosed with the terminal illness. This paper aims to discuss how the courts should deal with the issue of euthanasia and whether it is time for a change in legislation so that those assisting a loved one to die would not have to fear the possibility of criminal charges for their actions. It is important to make the distinction between active and passive euthanasia in order to assess the way in which the criminal and civil courts have determined the legality of the treatment. With active euthanasia the person’s death is brought about by the deliberate administration of medication to terminate the life of that person. Conversely, passive euthanasia occurs where treatment of the patient is refused or terminated, culminating in the death of the patient. A common use of this form of euthanasia would involve the removal of ventilation equipment to assist the breathing of the patient, or the removal of a feeding tube. In some cases, where a patient is critically ill, the relatives of the patient might instruct the doctors not to administer treatment if the patient goes into cardiac arrest. Although active and passive euthanasia will have the effect of terminating the life of the patient, the courts seem to be more readily able to accept passive euthanasia over active euthanasia. Part of the reasoning behind this stems from the notion that a patient is entitled to refuse to undergo treatment that will prolong their life, but they are not allowed to insist on any treatment that will hasten their death. The right to refuse treatment was demonstrated in Sidaway v Governors of Bethlem Royal Hospital [1985]. This case demonstrated that the patient did not need to have any specific reason for refusing to accept the treatment, and that, despite the fact that such refusal would result in death, if the patient had the necessary competence to make that decision, the doctors are duty bound to abide by the decision1. In Re C (Adult: Refusal of treatment) [1994] the court tried to argue that as the patient had been diagnosed as schizophrenic they lacked the necessary competence to make a decision about their treatment. The court disagreed, finding that the patient was not wholly incompetent. This meant that the hospital could not force the patient to have his foot amputated, despite the fact that he would be likely to die if it was not removed. Fortunately, the patient was persuaded to try a less invasive procedure and his foot returned to normal without the need to amputate it. Brock (1989) was opposed to the legalising of active euthanasia on the grounds that the availability of such options would lead to a “reduced pressure to improve curative or symptomatic treatment”. (Brock p 76). It is the contention of Brock that the hospice movement would not be in evidence today if euthanasia had been legalised 40 years ago. Brock argues that attempts to minimise suffering has led to advancements in the treatment of those with terminal illnesses, which would not have been achieved if euthanasia had been an option for those in chronic pain. It is also argued, by Brock, that some illnesses that were terminal years ago can now be cured through medical advancements that have been achieved. It is Brock’s argument that such medical advances would not have happened if euthanasia had been in usage, as the lack of urgency to find cures would have diminished. Others have argued that active euthanasia might be used by a medical professional to cover his own mistakes. Others, such as Maguire (1984) argued that the families of a terminally ill person might apply pressure on that individual to seek euthanasia to end their suffering, or, in some cases, might authorise the administration of a lethal dose of medication, if the patient is unable to communicate due to their illness2. Maguire was concerned that in some cases, the decision to terminate that person’s life might be fuelled by the prospect of a large inheritance. Concerns were also raised by Maguire that in countries where treatment is paid through medical insurance schemes, a doctor might encourage active euthanasia if the policy is due to expire (Maguire p 321). In order for active euthanasia to become available in the UK there would need to be a change in legislation. Medical professionals have also expressed their concerns in relation to being given the responsibility of administering medication to terminate the patient’s life. Brody (1988) was concerned that doctors who were placed in this position might be ostracised by society and be classified as murderers3 by opponents of euthanasia. He made the observation that persons administering medicines to terminate life would face the “dangers of societal acceptance” (Brody, p 89). Chapman (1984) concurred with this opinion and urged the medical profession to ‘defend its moral principles and repudiate any and all acts of direct intentional killing by doctors and their agents.’ Chapman, a doctor himself, urged his colleagues to say ‘we will not deliberately kill and we must say also to each of our fellow physicians that we will not tolerate killing of patients and that we shall take disciplinary action against doctors who kill.’(Chapman, 209) When determining how the courts should approach the issue of euthanasia it is important to note that the right to life is enshrined within the European Convention on Human Rights in which it is stated that ‘Everyone’s right to life shall be protected by law.  No one shall be deprived of his life intentionally…’ Opposition to the legalisation of euthanasia was voiced by the UK Association for Palliative Medicine & the National Council for Hospice and Specialist Palliative Care Services in 2003 were they made the point that ‘Euthanasia, once accepted, is uncontrollable for philosophical, logical and practical reasons.  Patients will certainly die without and against their wishes if any such legislation is introduced.’  It has also been argued that the legalisation of euthanasia would alter the relationship between the doctor and the patient. In a statement issued by the British Medical Association in 2000 the BMA made the point patients would be left wondering whether ’the physician coming into my hospital room is wearing the white coat of the healer ... or the black hood of the executioner.’ (British Medical Association statement – End of life decisions, 2000).  In determining the stance the courts ought to take in relation to the use of mercy killing or euthanasia it is necessary to consider cases where it could be argued that this has been used. One particular area where there seems to be an increased usage of passive euthanasia is with severely disabled newborn babies. There is a tendency to withhold life saving treatment if it is deemed that the quality of life for the disabled baby is likely to be unbeatable. The courts in Re J (A minor) (Wardship: Medical treatment)4 were asked to make a decision as to whether it would be lawful to allow the baby to die as the baby had severe physical and mental handicaps. In this case the baby had been born prematurely and due to a lack of oxygen had suffered significant brain damage. It was the opinion of the hospital that the child would suffer spastic quadriplegia and epilepsy if it were to survive and would also be deaf and blind and suffer constant pain throughout its life. The parents of the baby asked the hospital not to re-ventilate the baby if they needed to in order to sustain its life. The issue was raised before ht e courts and the baby was made a ward of the court. When the matter was heard in the court of appeal Balcombe LJ voiced the opinion that ‘to preserve life at all costs, whatever the quality of life to be preserved…may not be in the interests of the ward’. This was re-iterated by Taylor LJ who was of the opinion that when making a suach a decision the doctors should ‘judge the quality of the life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable for the child.’ Agreeing with the parents of the baby Balcombe LJ commended the parents for their reasonable and responsible decision making process with regard to the withholding of treatment. Both of the aforementioned judges were quick to point out that treatment should only be withheld in exceptional circumstances, and that they would not endorse any treatment that might hasten the death, but would allow the withdrawal of treatment that would result in the death. In the same case Lord Donaldson MR observed that the court had to decide ‘whether in the best interests of the child, a particular decision as to medical treatment should be taken which as a side effect will render the death more or less likely’. From a moral point of view, it could be argued that the withdrawal of the treatment amounts to murder of the child, as ultimately without the treatment the child cannot survive. However, the doctors would argue that although the withdrawal leads to the death, for the sake of humanity, the decision to allow the child to die from the operative cause is in the child’s best interests as living is likely to be intolerable. Conversely in Re B (A minor) (wardship: treatment)5 the court refused to allow the parent’s of the baby to prevent the doctors from operating on her. In this case the baby had been born with Down’s syndrome as well as having an intestinal blockage which would cause the child to die if the operation was not performed. As with the above case, the baby was made a ward of the court, and, at the first hearing, the court stated that the wishes of the parents should be respected. The Local authority appealed against this decision, and the operation was undertaken. It was known that if the operation was unsuccessful the baby would be in an extreme amount of pain and might not live long after the procedure. However, Templeman J concluded that it was ‘…the duty of the court is to decide whether it is in the interests of the child that the operation take place. The evidence in this case only goes to show that if the operation takes place and is successful then the child may live the normal span of a mongoloid child with the handicaps and defects of the life of a mongol child, and it is not for this court to say that life of that description ought to be extinguished.’ Dunn LJ agreed with this proposition stating that ‘…there is no evidence that this child’s short life is likely to be an intolerable one.’ Fortunately the operation was successful and the child went on to live the normal life of any child with the disabilities attributed to its condition. From this it can be noted that the quality of life that the patient will endure if treatment is given can be a deciding factor in determining the legality of withholding treatment. Professor Dunstan in Kennedy and Grubb (1989) expressed the opinion that treatment of a potentially terminally ill child should be continued where there is ‘a reasonable hope of benefit, without excessive expense, pain or other serious inconvenience.’ The withdrawal of treatment was authorised by the court in the case of Airedale NHS Trust v Bland6. In this case, the patient had been in a persistent vegetative state since he had suffered his injuries. This case proved problematic due to the fact that the patient was able to breathe unaided. Had he been unable to breathe without assistance, then the decision to withdraw the ventilator would have easily been approved by the courts. However, in this case, the hospital had to persuade the court to allow them to stop feeding the patient through a tube. The hospital gave evidence that the patient would never wake from this state, but the courts found it difficult to allow the removal of the tube as this would be tantamount to killing him. The court were concerned that the patient would not die instantaneously once the tube was removed, and that it may take several days or weeks before he finally died. In order to be able to justify the removal of the tube the court made reference to the use of force feeding of patients with anorexia nervosa7. The court made a distinction between the right of the hospital to force feed patients with anorexia8 and the continuation of the feeding of the patient in Bland. They concluded that with an anorexic patient the tube would be regarded as medical treatment9 and doctors were entitled to discontinue medical treatment if the patient would have no beneficial effect from the treatment. On this basis, the parents of Bland were allowed to make the decision to remove the feeding tube, which resulted in his death a short while later. It would appear from the above, that passive euthanasia has been accepted by the UK courts, in certain circumstances, however, active euthanasia is still forbidden10. Recent challenges by those wishing to have active euthanasia have been defeated11, and there has been an increase in such patients seeking active euthanasia in countries where it has become permissible. Those electing to do this have argued that they have been forced to end their life sooner then intended as a result of this, but until the UK can be persuaded to change its stance against active euthanasia there is likely to be any change to the present position. For the relatives of those who assist their loved ones in going abroad to die they face the prospect of prosecution upon their return12. The courts have also taken a hard line against doctors13, family members or friends who assist a loved one to die by helping administer a fatal overdose, or in some cases, suffocate the loved one14. If euthanasia were to be recognised by the courts, such prosecutions would be avoided. This matter can only be resolved by the government recognising the right of a terminally ill person to be able to decide when their suffering is so intolerable that they would prefer to be dead. This would allow the court to view the actions of the person assisting with the death within the realms of humanity. The person assisting would be confident that they would not face the prospect of a jail sentence for their part in helping their loved one die. Bibliography British Medical Association & the Law Society (1995) Assessment of Mental Capacity. London: BMA. Brock, D, (1989), Deciding For Others. Cambridge: Cambridge University Press Brody, B, (1988), Life And Death Decision Making. New York: Oxford University Press Chapman, C (1984), Physicians, Law,& Ethics. New York: New York University Press Kennedy I, & Grubb A. (2000), Medical law. London: Butterworths, 704–13 Klotzko, A J, (1997), What kind of life? What kind of death? An Interview with Dr Henk Prins, Bioethics, 11: 24-42 Maguire, D. (1984), Death By Choice, Garden City: Doubleday & Company Sullivan AD, Hedberg K, Fleming DW, (2001), Legalized physician-assisted suicide in Oregon, 1998-2000.  Vol 344, New England Journal of Medicine  605-607. Templeton, S K, Doctors: Let us kill disabled babies, The Sunday Times November 5 2006 Van Der Maas PJ, Van Delden JJ, Pijnenborg L, Looman CW, (1991), Euthanasia and other medical decisions concerning the end of life. Vol 338, Lancet 669-74 Vrakking, A. van der Heide, B. Onwuteaka-Philipsen, I. Keij-Deerenberg, P. van der Maas, G. van der Wal, (2005), Medical end-of-life decisions made for neonates and infants in the Netherlands. 1995–2001. Vol 365 Lancet, 1329-1331  Whitelaw, A, (1986) Death as an option in neonatal intensive care, Lancet Read More