“Our legal system’s stubborn refusal to extend the defence of necessity to doctors who wish to help someone die with dignity is an affront to justice.”
Euthanasia: can it ever be legalised?
24 June 2013
1 August 2013
3 January 2014
2 January 2014
1 August 2013
19 December 2013
Sixth form graduate Ashleigh Corstorphine is the winner of the BPP and Lawyer2B prize for a free BPP LLB place for her article on the legal complexities surrounding euthanaisa.
Helping someone to die with dignity, often someone who is terminally ill or has reached a point of no return in their health, is, in a nutshell, the definition of euthanasia.
It is a strictly forbidden act in the UK, but is legal in other countries such as Albania, Belgium, the Netherlands and Switzerland. Intentionally causing the death of another in the UK equals murder regardless of the circumstances. This means the defendant (D) who helped the victim (V) die with dignity will be sentenced to life imprisonment with a minimum of 15 years, even if V had begged D to release them from their suffering or had forced them.
Even if D assists V to take their own life and so does not kill V themselves, D is still guilty of murder by assisted suicide. This was decided in the case of Pretty (2001). Mrs Pretty was a motor neurone sufferer who had become incapable of moving and knew she would eventually suffocate to death. For this reason she wanted her husband to be able to assist her suicide at the point her life became intolerable, and to be able to do so without liability. The House of Lords rejected her request, stating that any assistance was classed as a criminal act.
Forcing someone is where the defence of necessity or duress is involved is where the circumstances force D to perform criminalising acts in order to prevent worse events from occurring. In the situation of euthanasia, D would help V die with dignity and would then use the defence of necessity to prove his innocence to the court, stating that V’s condition would have only worsened and caused more discomfort as time progressed so it was necessary to help V die in order for V to die ready and peacefully instead of in unbearable, untreatable pain.
However, the courts are reluctant to accept the defence of necessity at the best of times and so would not accept it as a justification to - in the eyes of the law - an intentional murder.
There are two types of euthanasia; active and passive. The only time a court accepts euthanasia, as such, is in terms of omission. A patient who is in a persistent vegetative state (PVS) and is on a life support may have their life support turned off by a doctor in order for them to die with a bit of dignity.
This is classed as passive euthanasia because the doctor is not creating a positive act in order to kill the patient, such as overdosing V, he is merely taking away the extra aid of a machine which is keeping V’s organs alive. V cannot keep himself alive unaided because he is brain dead. In the circumstances, as there has been no active or positive form of assistance, the courts will hold that there has been no breach of duty from the doctor and so no liability would be found.
Declaration of this decision was presented in the case of Airdale National Health Service Trust v Bland (1993), whereby a victim of the Hillsborough Football Stadium disaster suffered irreversible brain damage and had no hope of recovery. It was in this case that the House of Lords held the doctors would not be held criminally liable for a breach of duty or for euthanasia by switching off Bland’s machine as it was a mere omission not a positive act to kill.
However, euthanasia has become such a controversial topic because of the morals related behind it and how impassively strict the court decisions which surround it are.
It can be argued that euthanasia helps to free a patient from their poor quality of life and the painful suffering caused from a terminal illness. It provides comfort for the families of the victims knowing their loved one is no longer in agonising pain and is finally at rest. For victims who are rapidly deteriorating it provides a way out for them; it prevents them from suffering more than they need to when they know the end result is death once the body cannot tolerate any higher level of pain.
Legalisation would entitle a doctor to help their patient to reach freedom. In the case of Pretty (2002), she argued that no right to assisted suicide so that she could hold her dignity was a violation of Art.8 of the European Convention of Human Rights (ECHR): Right to a private life. She argued that this gave her the right to self-determination - when to live and when to die, as suicide is now legal. Her fight was rejected.
Suzanne Ost (2005) equally fought for the law to be changed arguing that the defence of necessity should be available to doctors to alleviate the terminally ill from unnecessary suffering, as in current law this is only available via an omission, which is unsatisfactory. It means that unless someone is in PVS they are forced to keep suffering. Ozt was also rejected.
The refusal of legalisation also violates Article 5 of the ECHR “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” By refusing V the right to die is at the same time forcing them to suffer tortuous pain and torment. At the time V needs a doctor most, a doctor is held helpless to him because of the law. His sole purpose of helping a patient and reducing suffering is restricted. How can this be justified.
Often a patient can be given years longer life expectancy that they do not want to go through. Situations like this create further medical problems such as depression or insomnia and this in turn becomes an unfair downward spiral for the patient.
On the other hand, Article of ECHR states: “everyone has the right to life,” and therefore it should be of no other human being to decide as to whether or not that life ceases. The abolition of the death penalty in 1965 supported this argument and in this day and age no person has the right to decide to end another’s life.
Above all, legalising the “right to die” calls into question where the line is drawn before the “right to kill” is breached. It could be argued by a D that he helped a V die with dignity when really it was a cold blooded murder. It could create victimisation in a vulnerable society. Family members influencing the patient’s decision into euthanasia for personal gains like wealth inheritance is another issue. There is no way you can be really sure if the decision towards assisted suicide was voluntary or forced by others.
Additional problems created by leniency on euthanasia is where the threshold would be held. There could be disastrous complications. What would qualify as enough pain to be allowed to “die with dignity?” What would qualify as a sick enough patient? How could you turn one V away and tell them to suffer yet allow another V to die peacefully before it is too excruciating?
Laws against euthanasia and assisted suicide are in place to prevent abuse and to protect people from unscrupulous doctors and others. They are not, and never have been, there to intentionally make anyone suffer.
However, it seems unjustifiable that V’s “right to die” depends on what apparatus is used to keep V alive. This is apparent in the case of Ms B v An NHS Trust (2002) in which V is paralysed from the neck down and is kept alive via a ventilator. She decides she does not want to use the ventilator knowing this will shortly suffocate her. The doctors were not willing to turn off her machine as she was fully conscious and intelligent, but the court overruled them because she was merely refusing treatment rather than asking of a positive act to kill her.
With the rapid improvements of health care in the UK, life expectancy of the ill and the healthy is going up and up. As great as this is for the healthy, it means that the terminally ill who no longer wish to live are having years added to their lives.
Although they can refuse treatment, without pankillers and other medication their lives will be considerably more painful for years to come. The most recent fight for the “right to die” in the UK was Nickleson (2012), a seven year stroke victim seeking a remedy to cure his pain.
Yet again, the Supreme Court rejected his plea to ease his pain and leave the world with dignity. In a statement he said “I am saddened that the law wants to condemn me to a life of increasing indignity and misery.”
An unwanted stigma is being created because of the Supreme Court’s uncompromising take on the issue of euthanasia but after evaluating both sides of argument and considering the complications that could be created, it would seem logical for the courts to uphold their verdicts for the safety of society as a whole.