The literal meaning of euthanasia is a gentle and easy death, which is something we all wish for. The law takes no part in euthanasia if good fortune or medicine allows such a death. More recently euthanasia is thought to be an act or omission undertaken with the purpose to accelerate death and relieve suffering of a dying or a terminally sick patient. Immediately, the law seeks to find if the perpetrator of such an act or omission has committed a crime of murder (1). Family, friends, religious figures and healthcare professionals may be involved but ultimately death is our inevitable fate. Who wants a lawyer at the death bed? (2)
Today our society enables us to utilize our individual preferences when making choices. This is clearly visible within the British healthcare system, where an increase in public awareness of medical treatments has allowed patients to intervene with medical decisions regarding their health and wellbeing, which is now developing to be a patient's right. What seem out of place are situations where death is approaching and expected. On completion of exploring all the available options, choosing a method where medical involvement will result in death, it remains unlawful.
The tragedy of victim Tony Bland aged 17 is an important case in medical law. Injuries sustained at the Hillsborough football stadium disaster left the youth in a persistent vegetative state where he could breathe independently but all other bodily functions had to be met artificially. According to the Harvard criteria (reference needed) , as his brain stem continued to function Bland was considered not dead. Nutritional supplements where delivered through a nasogastric tube. The English courts were asked to adjudicate whether it would be lawful to cease feeding and allow him to die (Airedale NHS Trust vs. Bland). Medically it was known that if artificial feeding of food and water was continued, Tony Bland would go on living for several more years. The House of Lords held that it would be lawful to cease feeding and allow him to die. In the judgment the court reiterated its position that any involvement of an external agency of death is prohibited.
Until this judgment, in common law it was clear that murder can be committed not only by a positive act but also by omission in situations where there is a duty to provide what is omitted. This protected doctors who owe their patients a duty of are. The court held that to stop feeding was an omission; the tube was medical treatment which the doctors were under no duty to provide because it was not in Tony Bland's 'best interest'.
Lord keith commented that 'a person is completely at liberty yo decline to undergo treatment even if the result of his doing so is that he will die.' (Airedale...) Not all the judges approved of the conclusion, including those who agreed with the ruling that it was a lawful omission to withdraw feeding but unlawful to end life by a positive act. Lord Browne-Wilkinson criticized; 'The conclusion I have reached will appear to some to be most irrational. How can it be lawful to allow a patient to die slowly though painlessly, over a period of weeks, from lack of food but unlawful to produce his immediate death by legal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law.' (Airedale..)
The judgment of Bland has adversely affected similar permanent unconscious patients. Gradually it has been widened with the BMA publishing guidelines on 'Withholding and Withdrawing Life-Prolonging Medical Treatment' (**) in which they considered it to be appropriate to withdraw tube feeding from patients with other medical condition. These guidlelines were influenced by important cases such as Swindon and Marlborough NHS Trust v S, Frenchay Healthcare NHS Trust v S and Re G (***).
Bland shows that individuals do not have the power to protect his own right to life without the law involving itself in such cases to protect the individual. The law needs to take into account how much a reasonable man would entrust his family or healthcare professionals in protecting his life (2).
In Re C, and infant was born with a severe form of hydrocephalus and was additionally severely handicapped including blindness and deafness and an inability to absorb food. (ref case). Medical evidence supported that regardless of additional medical interventions, the infant would not survive more than a few weeks. The Court of Appeal had to consider in what circumstances could a handicapped infant be allowed to die. It was held there was no mandatory obligation to resort to nasogastric or intravenous feeding. The duty for the professional's was to prevent her suffering by all means except actively ending life. (ref case) initially the High Court disregarded paeditricians practice of maintaining neonates toward their death rather than doing all that they medically can to prolong their life. The Court of Appeal interpreted the criteria of which decisions against medical intervention took place is infact a legal decision determined by the courts although the actual taking of that decision is for the parents and healthcare proffesionals.
What happens when a patient is not about to die but has an irreversible condition were there is no hope for recovery? The case of Re J addresses this issue; a pre-term baby suffered acute brain damage with a prognosis of developing spastic quadriplegia, blindness and deafness. On several occasions, the baby was succesfulyl resuscitated and had the potential with intensive treatment to live into his early teens. In past cases the court had guidance to suitable medical therapy for children who are imminently dying and whose death can be postponed for a short duration (Re B). In Re J, the court had to address the principle of sanctity of life. Lord Donaldson concluded 'account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged' (re j). It was held, that if J suffered a further collapse he does not have to be resuscitated.
What we need to address is, as individuals do we have a right to die? By looking at the European Convention on Human Rights (ECHR) as well as the United Nations Declaration on Human rights and on a more broader scale the United States of America Constitution, there seems to be no expressed right.
The European court of Human Rights has held that Article 8 of the ECHR protect our right of personal autonomy (pretty v uk). As long as we have the capacity, we have an absolute right to decide which treatment we want or do not want. This is regardless of the fact that the patient may benefit from the treatment. A patient suffering from renal failure can refuse dialysis. Comments in a recent case R(Burke) v General Medical Council support the idea 'Where a competent patient make it clear that he does not wish to receive treatment which is, objectively, in his medical best intrests, it is unlawful to administer that treatment. Personal autonomy or the right of self-determination prevails'. Within England, we are not required to justify our reasoning behind the refusal of treatment 'It matters not whether the reason for refusal were rational or irrational, unknown or even non existent'. (re t)
A central issue is not whether life should end, but the nature of decision making at the end of life; who should take the decision and how? (*) medical decision is an area where people could be vulnerable to dangerous abuses therefore it is necessary that any move towards permissive legal reform should incorporate professional legitimacy. Death is regarded as the region of medical science and easing the passing from dying into death is an accepted part of a doctor's duty, so it would seem correct for that legitimacy to be conferred upon healthcare professionals. This power that medics will have needs to protect the vulnerable from abuse whilst still allowing patient choices, and this can be done by vigorous professional guidelines and legal regulation (euthanasia death with dig hazel brig)
How do we justify a law which allows someone lawfully to end his life provided that he can do so himself but which refuses such a right to those who are already so disabled by the illness which has led them to decide that they wish to die that they can no longer physically swallow the pills?
How do we justify maintaing a law which makes it a criminal offence punishable up to 14 years imprisonment to help someone else commit suicide in the UK when that law can be avoided by the simple device of going to Switzerland and getting it done there?
Legal reform might aid consistency so that voluntary euthanasia could offer the opportunity for death with dignity, but in the meantime, dignity will always be compromised while the law prohibits active intervention in dying.