Euthanasia, assisted suicide and the law

Transcription

1 Euthanasia, assisted suicide and the law Nigel Briggs Euthanasia and assisted suicide are controversial and topical subjects. Nigel Briggs uses cases to illustrate the legal situation Exam focus This article is relevant for AQA A2 Law 04 (Concepts). Public interest in the issue of euthanasia and assisted suicide grows each year. Discworld author Terry Pratchett, suffering from Alzheimer s disease, has added profile to a campaign to legalise assisted suicide that is gaining in momentum but faces considerable obstructions. What are the underpinning issues and why is the law in this area so contentious? The Nicklinson case The recent case of Tony Nicklinson demonstrates the issues in this highly complex and controversial area of law. In 2005 a stroke left Mr Nicklinson paralysed and able to communicate only by blinking, a condition that is known as locked-in syndrome. Although Mr Nicklinson was not terminally ill and was able to express his views lucidly, he argued that his life was unbearable. He wanted doctors to be allowed to end his life without fear of prosecution. He took his case to court, with the support of his family, in August He lost the case and died a few days later at home from pneumonia, having refused further food or fluids. Mr Nicklinson argued his case on several grounds: He claimed that the law should not discriminate against him because of his physical disability. Were he able-bodied he would be able to end his own life. This option was denied to him. The assistance of the doctors would simply be redressing this imbalance. He argued that a common-law defence of necessity would exist for the doctors. Their actions would be seen as being taken in order to avoid a greater harm Mr Nicklinson s indignity and suffering. The case raises important and hotly debated legal and moral issues: Is it ever justified for doctors to facilitate the ending of a life? What circumstances would justify such an action? What is the legal basis for such an action? Do patients have a right to die? The legal background The case of Airedale NHS Trust v Bland (1993) sets out some basic principles in these cases. Tony 2 A-level Law Review

2 Hemera Technologies Bland, a victim of the Hillsborough disaster, was in a persistent vegetative state (PVS). The House of Lords allowed the doctors to withdraw artificial nutrition and hydration. This was seen as an omission, not a positive act, and one that was in the best interests of the patient. Because of this the doctors were not liable under their normal duty to maintain and support the patient. Does this case support Mr Nicklinson s claim? One difference is that Mr Nicklinson was able to communicate with those around him and experience the world in a way that someone in a PVS cannot. His quality of life was therefore, objectively speaking, much greater than that of Tony Bland. A second, more significant difference is that he was asking doctors to actively end his life on his behalf. It is hard to see how this killing by a positive act could be sanctioned in the same way as the withdrawal of treatment in Bland. It would not be assisted suicide, but the more serious crime of murder under the present law. A right to die? In the 2002 case of Diane Pretty the courts, all the way up to the European Court of Human Rights, refused to allow a positive step to be taken to end the life of the patient, who suffered from motor TopFoto Tony Nicklinson died on 22 August 2012, a few days after the High Court ruled that doctors could not assist in his suicide without fear of prosecution January

3 Debbie Purdy outside Parliament, after hearing the announcement from the director of public prosecutions on guidelines for prosecutions for assisted suicide 4 neurone disease. Euthanasia is not lawful and would, according to this decision, be murder. Diane Pretty had asked the director of public prosecutions (DPP) to grant her husband immunity from prosecution if he assisted her suicide. This was not granted. It was also said that the right to life [did] not include a right to death (Article 2, ECHR). In a more recent case, that of Debbie Purdy in 2009, the patient, who suffered from multiple sclerosis, pressed the DPP to release guidelines on when it would be appropriate for the CPS to prosecute someone assisting a person to die. Although the underlying law was not affected by the case, the Law Lords agreed that guidelines clarifying the law should be issued. These can be viewed at TopFoto Sanctity of life v autonomy of the individual At the heart of all of these cases is the conflict between the sanctity of life principle and the autonomy of the individual, that is, a person s right to choose the best action. In another recent case, M (2011), the patient was in a minimally conscious state and unable to communicate. M had been severely brain damaged for over 8 years and her relatives had asked for support from doctors in ending her life. The courts refused to sanction such a step. Mr Justice Baker said a key factor was that M had some positive experiences and there was a reasonable prospect that those experiences could be extended: Although not an absolute rule, the law regards the preservation of life as a fundamental principle. His words echo the strong moral line taken by Lord Coleridge in the famous cannibalism case of Dudley and Stephens (1884). The policy does not change the law on assisted suicide. It does not open the door for euthanasia. It does not override the will of Parliament. Kier Starmer, DPP The necessity argument Dudley and Stephens argued necessity after killing and eating a cabin boy, Richard Parker, in order to survive a shipwreck. Necessity was not accepted. No-one had the right to choose who should live or die. Their conviction was upheld but a reduced sentence of 6 months was imposed, indicating the moral dilemma in the case. Necessity is a notoriously difficult defence to plead. The floodgates argument stands in its way. The only case where necessity has allowed the taking of a life is in the case of Re A (Children) (Conjoined Twins: Surgical Separation) (2000). The twins were surgically separated after the Court of Appeal (Civil Division) ruled that it was lawful for the doctors to do so. This was despite the fact that the doctors knew the operation would cause the death of the weaker twin. In a clear bid to prevent the precedent being followed, the judges were keen to stress the unique circumstances involved. Doctors and the double effect Doctors are effectively entitled to bypass the current rules on intention via a legal mechanism known as the double effect. As long as their main aim in providing a particular treatment is the prevention of pain, they will not be regarded as intending death. When treating a terminally ill patient they are entitled, and in fact duty-bound, to relieve pain. If the relief of pain by a large dose A-level Law Review

4 Under the double effect mechanism, if the relief of pain by a large dose of morphine results in a death then this will not be regarded as murder of morphine results in a death, this will not be regarded as murder, even if the doctor could have foreseen death as a virtually certain consequence. Were a non-doctor to try the same approach they would be regarded as having Nedrick/Woollin indirect intent and would likely be convicted of murder. In Moor (1999) a doctor who had killed a patient with morphine was found not guilty of murder under the doctrine of the double effect. The principle was first outlined in Adams (1957). This means that the primary intention the relief of Hemera Technolgies pain will be taken to be the doctor s only significant intention. Despite their knowing that the patient s death is a virtual certainty, the doctor will not be held liable. The doctor s actions have two outcomes. It is a rare departure from the normal rule in criminal law that motive is not relevant to mens rea. The double effect is available only to doctors, but its application would not have assisted in the Nicklinson case. Tony Nicklinson s condition was not terminal. Any drug given would not be for the relief of physical pain. It was mental anguish from which he sought release. The double effect would therefore not have applied. A similar case was that of Annie Lindsell, who died in She withdrew her legal case after it was accepted that mental distress, and not just physical pain, was included in the ambit of the double effect. It was never tested in court. Tony Nicklinson lost his case, but his widow said, Even though we didn t win, all the hard work for the case has been done. I hope at some point, someone will come forward and carry on with what Tony started. Nigel Briggs is head of law at Notre Dame Sixth Form College, Leeds. Success in all your A-level subjects! Did you know we publish all these A-level magazines to help you get the grades you need? From as little as 2.50 an issue, each print magazine includes a digital edition of each new issue PLUS free online resources! Go to for: All the latest information on each title Simple ordering options, including subscriptions sent straight to your home Alternatively, contact our customer services department direct on January

5 revision poster Civil pro This poster will help you understand the civil court process. Use it to aid your revision or display it in class to help others Access to Justice Act 1999 Judicial case management (detail). Emphasis on early settlement. Encourage alternative dispute resolution (ADR) (types). Claimant (C) Issues claim form. Allocation questionnaire Issued to both parties to determine the value and complexity of the claim. Defendant (D) Receives claim form; has 14 days to reply. D can: settle ignore (leads to default judgement) defend claim in part or in full 16 A-level Law Review

6 cess For LawReviewOnline a printable version of this poster, log in at Small claims track up to 5,000 (up to 1,000 for personal injury) inquisitorial no costs no lawyers paper hearing district judge County Court 1-hour hearing Allocation by judge to appropriate track Fast track up to 25,000 personal injury = 1,000 25, weeks from direction to hearing fixed costs district or circuit judge County Court 1-day hearing Multi track 25,000+ personal injury claims over 50,000 go to High Court complex cases individual timetables County or High Court hearings can last more than a day Ingram/Fotolia Marian Tregear and Stephen McAvoy teach law at Queen Elizabeth Sixth Form College, Darlington. January

7 examination focus Understanding the res ipsa loquitur rule Giles Bayliss helps you answer questions on the principle of res ipsa loquitur in negligence by examining examples of cases Normally in negligence the claimant must establish all three elements duty, breach and damage. In relation to breach of duty, however, there may be situations where it appears from the facts that there has been negligence by the defendant, but the exact cause of the damage or injury is not known. This is where the principle of res ipsa loquitur ( the thing speaks for itself ) applies. An example Consider the following example: Connie has recently had her appendix removed in a routine operation. Since then she has been suffering When does an open train door stop being the responsibility of the railway company? from abdominal pains and is sent back to hospital for a check-up. An X-ray reveals she has a scalpel inside her abdomen and she is rushed to theatre for emergency surgery to remove it. Although the precise circumstances of Connie s injury are not known, the injury could not have occurred without negligence and took place in circumstances controlled by the defendant. Unless the hospital can provide an explanation for the presence of the scalpel, the court will assume that the defendant was in breach of its duty of care. In Connie s case it is unlikely that any explanation would be forthcoming, but in other cases the defendant might be able to show that they took all Corbis/Cadmium reasonable precautions or that a third party is responsible for what took place. The principle was first explained in Byrne v Boadle (1863), where the court outlined three conditions that had to be satisfied in order for it to apply: 1 The thing that caused the claimant s injury or loss must have been under the control of the defendant (or someone they are responsible for) at the time of the negligent act. 2 The claimant s injury must be of a type that would not ordinarily occur without negligence. 3 The cause of the injury is unknown and there is no reasonable explanation as to how the injury occurred. If the three conditions are satisfied, the onus will be on the defendant to provide some explanation for what occurred other than that they were negligent. This could be, for example, 26 A-level Law Review

8 that they took all reasonable care, or that another person (e.g. a stranger) is responsible rather than the defendant or one of the defendant s employees. Revision exercise Consider whether the res ipsa loquitur rule applies in the following examples: 1 Eva goes to her local hospital with a limp in her right leg. She leaves hospital with a limp in both legs. She brings a claim against the hospital. 2 Andrew suddenly swerves across a road into the lane of oncoming traffic. He hits a minibus, injuring the passengers. They bring a negligence claim against him. 3 Tom slips on a spillage of yoghurt on a supermarket floor. He brings a claim against the supermarket for his injuries. 4 One lunchtime Kiera visits her local bakery to buy a pasty. She eats half of it before discovering half a dead bat in the filling. She later suffers from food poisoning and brings a claim against the bakery. 5 Florence goes to a bar and orders a whisky and water. After drinking half the glass she feels a burning sensation in her throat. It is later shown that the water contained bleach. 6 Justin sits on a folding chair on display at his local department store. The area is open to the public. The chair collapses and he sustains a head injury as a result. He brings a claim against the store. 7 Marian takes her car to a garage to have her brakes fixed. Later that day she picks up the car and on the way home her brakes fail. LawReviewOnline Log on to www. philipallan.co.uk/ magazinesonline for the answers. Hemera Technologies The control requirement Two cases involving train doors are often used to illustrate the control requirement. The defendant (or someone they are responsible for) must be in control of the activity at all times. If there is evidence that someone else might have interfered with the activity (the thing in issue) then the rule will not apply and the claimant must prove that the defendant is in breach of his or her duty of care. In Gee v Metropolitan Railway (1873) the claimant fell through a train door shortly after it left the station. The court ruled that in these circumstances the defendants could still be regarded as being in control of the door. In contrast, in Eason v LNER (1944) a 4-year-old boy fell through an unsecured train door some 11 km from the station. In this case the court ruled that the door could not still be regarded as being under the railway company s control. It could have been left partly open by someone else they were not responsible for. In most negligence claims the res ipsa loquitur rule will not apply because the cause of the accident will be known. Where it does apply, it raises a strong inference that negligence has occurred. The defendant must then provide some explanation for how the accident could have occurred without negligence. It should be noted that the rule does not reverse the burden of proof (see the Privy Council in Ng Chun Pui v Li Chuen Tat, 1988) but it does place an obligation on the defendant to rebut the evidence by showing that they took reasonable precautions. Research Using your library or the internet, find out the facts of Mahon v Osborne (1939) and Ward v Tesco (1976). Giles Bayliss is head of law at Queen Elizabeth Sixth Form College, Darlington. He is a member of the editorial board for A-level Law Review. January