One of the most compelling cases surrounding euthanasia and physician assisted suicide (PAS) was decided early this year. Tony Nicklinson, who suffered from locked-in syndrome following a stroke, lost his appeal for doctors to help him kill himself. His wife, along with another lock-in patient, are now appealing to the Supreme Court hoping for a change in the law. Tony Nicklinson’s case was not the first but rather the latest in a string of high profile cases. Most of the case law has developed through attempts to argue that the European Convention on Human Rights (ECHR) is engaged and it should be legal to euthanise those incapable of killing themselves. Many have argued that Article 2 ECHR should include the right to die. It has also been made clear that although it may interfere with the right to a private life under Article 8, this was thought to be justified as it was necessary for a democratic society. The law on euthanasia appears to be clear; killing someone, no matter what the intention, will always be seen as murder. Developments in the law, however, appear to suggest that this is not always as black and white as it seems.
There are many different forms of euthanasia. Active euthanasia is acting directly to bring about death and passive euthanasia is a non-action that leads to death. Active euthanasia is, in theory, always illegal in the UK. It is further split into voluntary, non-voluntary and involuntary euthanasia. Voluntary is euthanasia at the request of the patient. Non-voluntary is euthaniasia when the person cannot express their wishes, for example, due to being in a coma. Involuntary is when the person wants to live but is killed anyway. Despite being illegal in the UK, the ethical debate over euthanasia is murky. Most people have strong opinions on euthanasia but it is doubtful even those with strong anti-euthansia opinions would want to live with conditions like locked in syndrome. Although the legal position appears to be clear, there are multiple examples of when the courts and the medical profession are willing to allow euthanasia.
The poet Arthur Clough wrote ‘The Last Decalogue’, which sums up the legal position succinctly. It provided a ‘get out clause’ for each of the Ten Commandments. The lines, ‘Thou shalt not kill; but needst not strive officiously to keep alive’ ring more truly now than ever before. Examples of this begin with simple acts of turning off life support machines, but range to much more drastic steps. The case of Airedale NHS Trust v Bland was a landmark case that saw a change in the legal position. Anthony Bland was crushed in the Hillsborough disaster and brain damage left him in a Persistent Vegetative State, and the case concerned whether the doctors were allowed to stop feeding him, thereby causing his death. This decision was the first time the court had allowed someone to die through withdrawing life-prolonging treatment.
Although Anthony Bland’s case showed common law legalisation of passive euthanasia, other examples demonstrate examples of accepted active euthanasia. For example, the doctrine of double effect allows for a large amount of pain relieving drugs to be administered even if it is obvious that the drugs would kill the patient. Nonetheless as long as the main purpose and intention was to promote comfort and relieve pain then shortening life was ‘merely an unwanted side effect’. The courts have endorsed this a number of times, justified as not directly bringing about the death of a patient but speeding up the inevitable. Put simply, if death is foreseen but not intended the doctor is merely allowing the patient to die. If, however, the sole purpose of the drug administered is to kill the patient, this will be seen as murder.
Should euthanasia be legalised?
The most recent attempt at legalisation of euthanasia is from Lord Falconer. His Private Members Bill would legalise assisted dying of the terminally ill who have expressed a wish to die. The Bill would put in place a number of safeguards such as clear pre-determined criteria to prevent abuse. Guidelines on when prosecution will take place were also issued by the Crown Prosecution Service in 2010 after R (Purdy) v DPP. These give a number of factors either in favour of or against prosecution, including relationship to the ‘victim’ and motive. Despite 44 cases being referred to the DPP since the guidelines were published, none have actually been prosecuted. This suggests that the right balance is currently being maintained and to formally sanction euthanasia is not worth the risk of abuse from doctors.
What is reassuring is that both the court and the medical profession seem to allow morality to slip into their judgements. Although in theory motive and intention are irrelevant, they are very important in practice. There have been examples of cases where the court have been willing to give reduced sentences for ‘mercy’ killings. Most recently, in 2011 a mother was given a minimum term sentence of nine years for killing her son. Frances Inglis injected her son with a lethal dose of heroin believing she was ‘relieving him from his suffering’. Perhaps the most glaring example of the lenience of the courts was in 1991. Dr Nigel Cox was given just 12 months after he administered an injection intended to cause death of a patient begging to die. He received the full support of the family during trial and was back in his practice within 12 months.
A recent survey from the campaign group Dignity in Dying showed that 82 per cent of the public agree that PAS should be allowed. A 2009 study showed that 60 per cent of nurses think a mentally competent person should be able to choose to die. An additional four in ten said that they had acted to euthanise a patient. This makes it arguable that euthanasia is being covertly legalised and is becoming more and more acceptable. Certainly in cases of terminal illness, the medical profession appear to have reluctance to keep a patient alive against their wishes.
Obviously the Government is unlikely to legalise euthanasia completely. With evidence from countries like the Netherlands where guidelines are frequently not followed, it is easy to see why. For a lot of people the word ‘euthanasia’ conjures up negative images of people being killed against their will. Despite agreeing with Physician Assisted Suicide (PAS) and euthanasia in limited circumstances, I don’t think it should be legislated on. At the end of the day, it happens and, for the large part, it works. It could be that legalising euthanasia will leave it open to abuse and Baroness Warnock, for example, believes that there should be a duty on the old and infirm to die. It could also be that once we allow one form of euthanasia, such as voluntary, it is only a matter of time before we allow less acceptable forms. Alexander Capron, a leading medical ethics expert, thinks it will become unclear if the physician coming into the room is wearing the white coat of a healer or the black hood of an executioner.
Although it is unclear whether Government will pass Lord Falconer’s Bill, what is clear is that, in the eyes of the majority and the certainly the medical profession, forms of euthanasia are acceptable. Many appear to agree that if someone wants to die and is suffering, it is illogical to strive to keep them alive. It requires a delicate balance. On the one hand the benefits of regulated euthanasia are clear, valuable resources can be saved and the wishes of the patients can be listened to. However, on the other, it shouldn’t become a right or a duty. In the right hands and for the right reasons, euthanasia doesn’t have to be a bad thing and it will be interesting to follow the legislative progress.