A dying law

Euthanasia law has changed little in this country, but recent cases being referred to the European Court of Human Rights could herald a serious change. Sally Roberts reports

The different schools of thought on the subject of euthanasia and the contentious circumstances surrounding the cases continue to call for medico-legal decision-making of the highest order. The Hippocratic Oath states: “To please no one will I prescribe a deadly drug, nor give advice which may cause death.” Juxtaposing this is AW Clough's quote: “Thou shalt not kill, but need'st not strive officiously to stay alive.” Although simplistic, the latter neatly describes the legal position in the UK at the moment.
The cases that have made the headlines recently, namely Ms B and Dianne Pretty, require consideration of two different types of euthanasia: voluntary euthanasia and assisted suicide. In Ms B v An NHS Hospital Trust (2002), a competent adult sought a declaration from the court that she was entitled to refuse medical treatment, even though that refusal would result in her death. In R v DPP, ex parte Pretty (2001), a motor neurone disease sufferer sought a review of the Director of Public Prosecution's decision to refuse to undertake the path of not prosecuting her husband if he assisted her to commit suicide.
The law is clear that anything done to a competent patient without their consent will amount to a violation of their body, which is an assault. This was confirmed in Re C (Adult: Refusal of Treatment) (1994). Where the patient is not competent, the general rule is that any medical treatment should be in their “best interests” (Re F (Mental Patient: Sterilisation) (1990)). The decision in Ms B's case confirmed the fundamental principle of autonomy that every person's body is inviolate and that a competent patient has the right to refuse treatment but that, while a patient's capacity was being assessed, they should be treated in accordance with their best interests.
The law surrounding assisted suicide was clarified in A-G v Able (1984), in which members of the Voluntary Euthanasia Society faced allegations of assisted suicide following its distribution of 'A Guide to Self-Deliverance'. It was held by Lord Woolf that there were three requirements for the offence: the accused knew that suicide was contemplated; the accused approved or assented to it; and that the suicide attempt was encouraged. It was also stated that a patient did not commit suicide by refusing treatment and that there could be no prosecution where the patient was competent to refuse treatment.
The House of Lords in Pretty stated that Pretty's arguments under the European Convention on Human Rights (ECHR) were inconsistent with the principles that no one can take another person's life under the Suicide Act 1961, and that while medical treatment might shorten a person's life, fatality cannot be its primary aim. The scheme of the 1961 act was not incompatible with the claimant's ECHR rights, which did not include a right to die. Pretty is now seeking to argue her case at the European Court of Human Rights and is waiting to hear whether her case is admissible.
Previous case law on euthanasia has centred on whether the practice can be regarded as active or passive, depending on whether it results from an act or an omission. Active euthanasia is where there is a deliberate act to end the life of the patient. Any doctor carrying out such an act does so with the risk that they may be found guilty of manslaughter or murder. The exception to this rule is where a doctor administers analgesic medicine to a terminally ill patient. If the drug is administered to the patient with the primary intention of relieving pain, the exercise of clinical judgement has a 'double effect', with the result of negating the mens rea for murder.
The lawfulness of passive euthanasia, where a patient's life is ended by an omission to act by way of non-treatment, the withdrawal of treatment or the refusal of treatment, centres around whether a doctor has been released from their normal duty to treat (ie to perform an act) and whether their actions amounted to an interference in the normal course of events.
The ethical and legal debate on euthanasia was clarified by the House of Lords in Airedale NHS Trust v Bland (1993). The trust sought a declaration from the court that the withdrawal of life-sustaining treatment from Anthony Bland, a victim of the Hillsborough disaster who had been in a permanent vegetative state (PVS) for approximately three years, would not be unlawful.
The decision in Bland can be summarised as establishing the following points: the right to life enshrined in Article 2 of the ECHR was not absolute; strict adherence to the qualified sanctity of life principle that life must be sustained, could result in treatment being disproportionate to the benefit received by the patient; the application of the 'best interests' test was acknowledged, although Lord Goff observed that “the distressing truth which must not be shirked is that the proposed conduct is not in the best interests of Anthony Bland, for he has no interests of any kind”; the withdrawal of treatment was an omission because the doctor was simply allowing nature to take its course and the patient to die from a pre-existing condition; the patient's death would be regarded in law as being exclusively caused by the injury or disease to which their condition was attributable; an omission to treat could lead to criminal liability if it amounted to a breach of the doctor's duty of care towards a patient; and the withdrawal of life-support treatment was factually the cause of death but had no legal consequence.
The compatibility of the decision in Bland with the Human Rights Act 1998 (HRA) was considered in NHS Trust A v M: NHS Trust B v H (2000). The respective trusts sought a declaration that it would be lawful to discontinue the feeding of PVS patients A and B. It was held that Bland was compatible with the HRA and that the legal principles laid down in Bland were consistent with the ECHR.
Euthanasia was also discussed in Re A (Children: Conjoined Twins) (2000). The Court of Appeal, although emphasising the unique circumstances of the case, allowed one life to be weighed against another. The general approach taken by the Court of Appeal was to decide where the best interests of each child lay, reconcile any conflict by sanctioning the lesser of two evils (even if this meant that one of the twins would die) and then decide whether the separation was otherwise lawful. Lord Justice Walker appeared to give a judicial endorsement of euthanasia by arguing that a painfully short life was a life not worth living. It is likely that the judgments of Lord Justices Ward and Brooke will be preferred in setting out a realistic approach to resolving competing interests in such cases.
It seems that the law surrounding euthanasia has changed little since the general principles were laid down in Bland almost 10 years ago. Although some support has been lent to the practice of passive euthanasia in the form of advance directives, or 'living wills', the judiciary is apparently resolute in its opinion that both assisted suicide and active euthanasia should continue to be punishable offences in the absence of a contrary direction from Parliament.
Recent legislative changes in the Netherlands have meant that – albeit under a strict protocol – the Dutch Penal Code now recognises voluntary euthanasia. It is possible that the pending decision from the European Court of Human Rights in Pretty will lead the way for reform, but there will always be those who raise the 'slippery slopes' argument and see only the potential for abuse.
Once again, it appears that reform in this area cannot happen without the contribution of individuals who are suffering to the point where they seek death sanctioned by the state.
Sally Roberts is specialist products editorial assistant at Lawtel UK.

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