The uncertainty and complexity surrounding the legality of euthanasia has plagued the English legal system for decades, with terminally ill patients insisting they should have the choice to die when and how they wish. At present, suicide is legal but section 2 of the Suicide Act 1961 affirms that those who assist these patients in ending their lives remain criminally liable for murder. The quote from the essay question, stated by Sales LJ in R(Conway) v Justice Secretary , addresses the particular sensitivity around patients who are unable to make a decision on ending their life-sustaining treatment due to unconsciousness or lack of capacity. It is their family and doctors who believe they should make the final call, but courts are not so agreeable. This essay will draw upon the conflict of assisted suicide, identifying the distinctions between active and passive euthanasia, and the repercussions that have ensued from the judgment in Airedale National Health Service v Bland .Many academic writers criticise this case for causing the law to be ‘intellectually and morally misshapen.’ Specifically, it was John Keown and Andrew McGee who went head to head in trying to analyse this judgment. They uncovered a further fundamental distinction between intention and foresight in regards to withdrawing or withholding life-sustaining treatment, which will be critically analysed below. Despite these strong opinions and justifications, Parliament insists on keeping the law how it is, despite possible declarations of incompatibility with the European Convention of Human Rights. The essay will state this law in accordance with relevant cases and analyse any past or future reforms to try and push forward this controversial subject.
Firstly, it is important to establish the difference between active and passive euthanasia to distinguish why one method is more likely to be accepted than the other. Active euthanasia involves administering a lethal injection to the terminally ill patient; passive euthanasia involves the withdrawing or withholding of medical treatment. Realistically, the active form is never permissible, whereas the passive form has been accepted in certain circumstances, such as in the Bland . James Rachels, an American philosopher of ethics, weighs up the positives and negatives of the two forms in his article, starting with active euthanasia and its more humane nature. Life would be ended quickly with no further pain or suffering, but there is still a direct action to kill. In withdrawing or withholding medical treatment, there is no direct action but an omission, seen to be more preferable as the incurable illness takes hold how it should. However, this increases the probability of the patient living longer and suffering further pain. Regardless, Rachels states ‘death is no greater than the patient’s continued existence’ which reiterates that it does not matter what choice is made to end a life, death remains to be the end result. Therefore, there are no differences between them morally, but this is not the answer the law is looking for in regards to why some situations are more accepted than others. The hospital won their declaration for Bland, but the patient in the Conway case did not for various reasons that will be explained.
The recent case of R(Conway) v Secretary of State for Justice involved a terminally ill patient suffering from multiple sclerosis. He was given a maximum of six months to live. Over time, he had to rely more and more on non-invasive ventilation due to the wasting away of his breathing muscles. Eventually, his breathing would fail altogether. As he was competent, he was able to express his desire to end his life in a ‘humane and dignified way’ , rather than suffer. However, he wished to be able to take medication in order to end his life, which would be the active euthanasia contravening Article 2 of the Suicide Act 1961.
Comparing the above, the House of Lords case of Airedale National Health Service v Bland is a significant pinpoint in common law in relation to euthanasia’s circumstantial acceptance, strongly influencing those cases of similar nature going forward. The patient involved was a Hillsborough disaster victim – a catastrophic event that was broadcast live across the country, affecting millions. After being heavily crushed in the stadium, the patient was left in a permanent vegetative state (PVS) due to his brain being starved of oxygen. His doctors and family were in agreement that he was never going to regain consciousness so they sought a declaration from the court to withdraw his feeding tube, as Bland himself was incompetent. The feeding tube was determined as medical treatment due to the insertion of the tube requiring medical skill. Its removal would then cause the patient to die of starvation and dehydration. This then raises moral and ethical issues, as well as questioning whether an omission to allow death creates criminal liability, compared with actively ending life.
One of the first concepts the judges in Bland wanted to address was the meaning of death in modern day terms. Society has different views on this topic so it is challenging to pinpoint when death occurs. A good number of observers would have agreed that Bland was no longer alive in the sense that he was irreversibly unconscious with no chance of recovery, encouraging the notion to withdraw his feeding tube. Hoffman L.JJ insisted that an assessment of Bland’s quality of life did not need to be made as it is clear that he had no life at all. This then raised the issue of judging someone’s quality of life as to whether they should continue living or whether they should die, rather than looking at the benefit of the medical treatment. However, this concept will be discussed further on in this essay. Following on from Hoffman’s statement, Lord Goff reiterated how death is no longer associated with just breathing and a heartbeat. The brain stem controls the breathing and other bodily functions, compared with the damaged cerebral cortex which controls consciousness and thought. Therefore, Lord Goff confirmed that, as Bland’s brain stem was still functioning, he should be treated as alive as a matter of law, but it does not address his condition moving forward. It was Lord Brown-Wilkinson who pointed out the most important fact in regards to death. He states ‘death in the traditional sense was beyond human control’ which denotes how modern technology has changed when a life ends. Humans choose to get involved and interrupt nature’s course of death by administering life-prolonging treatment. So, once we become involved, surely we should decide when human interruption is no longer beneficial and should be withdrawn? It would seem necessary to let nature take the reins once again.
An article, written by John Coggon, briefly analyses the contrast between living and dying, in which he believes that they are not mutually exclusive. He criticises John Keown who believes that the right to die is the exact opposite as the right to life. As shown above, there are various things to consider before being dead by law. It is possible to be living and dying from an underlying condition, such as multiple sclerosis in Conway’s situation, but it is not possible to be alive and dead . Therefore, the right to life is not the same as the right to death. There are many more considerations to take into account, such as the functioning of a brain stem in Bland’s case rendering him alive by law.
Keown tackles the issue, common amongst these ethical articles, of how it is only acceptable to allow a terminally ill patient to die slowly of starvation over a long period of time, when administering a lethal injection would serve an immediate and painless death. In Bland , the judges rely on the distinction between an act and an omission to try and justify this statement. An act to end a life would be intent to kill. So, in supplying Conway with the drugs to end his life, the doctor would be criminally liable for murder. Regarding an omission, the law does not convict this ground, unless there was a duty to prolong life and this was ignored to achieve death or grievous bodily harm. Withdrawing the feeding tube from Bland would be an omission, but would the doctors still owe him a duty to continue administering life-sustaining treatment? Keown quotes Lord Goff who made a point based on the interference of nature in that withdrawing the life support would be no different from providing it in the first place. Either way, dying would be the result of his pre-existing condition. Relying on Re F , it was determined that the doctor would not be under a duty to continue tube feeding to an incompetent patient if it was not in their best interests. It was clear that there was no chance of improvement in Bland’s condition so the tube feeding was, in Keown’s term of choice, futile.
There are various principles that underlie the topic of euthanasia and assisted suicide but the sanctity of life seems to be the most fundamental amongst critical writers. John Keown explains how this principle is strongly against intentional killing, backed up by the right to life in the European Convention of Human Rights. It was also emphasised by Lord Goff in Bland in that the principle is recognised ‘in most, if not all, civilised societies throughout the modern world.’ It is understood that human beings should be able to enjoy life to the fullest, regardless of disability. However, it is not absolute and should not be preserved at the expense of another fundamental good. Keown remains vague and does not specify an example, but could it be implied that he means the ending of suffering as another good? Terminally ill people are usually victim to unbearable pain, such as Conway, so it could be in support of ending a life for this reason. However, the judges in this case discussed how the sanctity of life would be harmed less with allowing someone with such a short life expectancy to die without help, compared with someone like Bland who would continue on for years in the same state because of life sustaining treatment. It becomes evident how limited this concept is.
It could be said that the principle of the sanctity of life is often misunderstood. John Keown goes into detail about whether the feeding tube could actually be determined as medical treatment for the purposes of withdrawing or withholding treatment. Many nurses would agree that a feeding tube is under basic care as food is a necessity to carry life. To them, its withdrawal would be illogical and should be illegal. Yet, the judges in Bland insisted that the tube was medical treatment due to the need for medical procedure for its insertion. Keown argues that the tube itself does not stabilise the patient, it is the food that passes through it that does. He berates a comparison that Lord Goff makes on the similarity of tube feeding and mechanical ventilation, which also compares both the Bland and Conway cases. Conway is on a mechanical ventilator which replaces and stabilises his breathing in a therapeutic manner. Bland’s feeding tube does not replace digestion but simply delivers food to the stomach. This demonstrates Keown’s argument of how the judges in Bland seemed to use the idea of a required minor operation for the insertion to justify it as medical treatment so it could be withdrawn. More worryingly, as addressed in the Conway quote, it seems to demonstrate the vulnerability of a patient to a judge who, with such a weak justification, can push for what they want to make withdrawal lawful.
Another common confusion occurs between the meaning of sanctity of life and the meaning of quality of life in regards to the justification of euthanasia and assisted suicide. In the context of this essay, quality of life would mean looking at how worthwhile the patient’s life is, rather than looking at the how worthwhile the treatment would be, which is worrying. Keown points out in Bland how Lord Mustill rejects the motion that the interest in preserving life decreases ‘where the quality of life has diminished by disease or incapacity.’ This judge believes the law would have to change to allow this but, in the end, they judges still ruled that it was not in Bland’s interests to be kept alive. It would seem that they made their decision based on the low quality of Bland’s life, rather than the effectiveness of the feeding tube. Even Lord Goff agreed that sanctity of life was fundamental, before stating that it is not an absolute principle without very much justification. As in Re J (A Minor) , the judges made it clear that treatment should only be withdrawn if the quality of life is intolerable, choosing this concept over preserving life. However, Bland was not suffering as he could not think or feel, so is it possible the judges in Bland were referring to his family? How would Bland know his life was intolerable? It is purely based on an objective viewpoint in which Keown is right in showing how it is nearly impossible not to take quality of life into consideration over sanctity of life. The Bland case failed to explain this distinction.
As a result, the decision in Bland has created a ‘slippery slope’ as this area of law in not laid out properly in case law. Because the judges in this case agreed to withdraw the medical tube means that the rate at which these sorts of cases have arisen has increased. In the eyes of many terminally ill people and Keown, there is no reason why withdrawal of medical treatment should stop at people in a permanently vegetative state. Keown refers to the case of Re R in which the patient was born with severe mental and physical disabilities. It was an agreement with the medical professionals and the family that, if he went into cardiac arrest, he would not be resuscitated. In addition to this, if a potentially life threatening infection took hold of the patient, they would withhold the antibiotics. Bearing in mind this was post-Bland and the treatment was regarded futile, the judges still failed to distinguish between treatment being futile and the life of the patient being futile. This does not support the idea of helping the weak and vulnerable in society which would further encourage guidelines to safeguard them, like Conway suggests.
Overall, Keown’s analysis is strong when it comes to criticising the decision in Bland. The sanctity of life principle plays an important role in deciding whether to withdraw treatment and he sticks to this argument. The judges accepted that some lives no longer have a benefit so to omit to providing life sustaining treatment would not be unlawful. He points out the lack of explanation in their reasoning which has left the law in a ‘morally and intellectually misshapen state’ , urging for an authority to make a clarification. Also, he is correct in highlighting how Bland has opened the doors to withdrawing treatment from other conditions other than PVS. It is causing the law to broaden too much, particularly with the risk of judges making decisions on the quality of the patient’s life and not the treatment.
Another critical writer, Andrew McGee, picks up on the arguments made by John Keown and politely rejects some of his ideas on Bland. He agrees that there are doubts on the act and omission distinction but focuses more on the intention and foresight distinction, briefly mentioned by Keown. This distinction was not mentioned above as McGee makes a more in depth attempt at its application in withdrawing or withholding treatment. He highlights how Keown failed to apply his reasoning to all cases of withdrawing treatment. Ultimately, McGee believes that the judges went wrong in Bland by ‘characterising the conduct as intending death’ rather than looking into the foreseeability of his death. This would make the acceptance of withdrawing treatment appear more unlawful as the mens rea for murder is the intention of death or grievous bodily harm. The concerning thing is then it is then followed in future cases, such as in the Conway case which denoted ‘that life sustaining treatment for a patient in a permanent vegetative state could be terminated, with the result he would die.’ McGee picks up on a comment made by Lord Donaldson and Lord Taylor in Bland in which they insist that the purpose of withdrawing treatment is not to accelerate death, even though the majority agreed there was intention to cause death. There is incredible disbelief on behalf of McGee in that doctors can escape liability for an omission and not an act, describing it as ‘illogical.’
So how should judges have treated the intention and foreseeability distinction in its application to the Bland case? There was the idea of the withdrawal being seen as an aim to remove burdensome treatment or, for loss of capacity in Bland’s situation, to stop invasive treatment, rather than stating there is an intention of death. The death would then be a side effect of the withdrawal of treatment. This was even expressed in the Conway case as the withdrawal on treatment ceasing ‘invasive manipulation of the patient’s body.’ It can be argued that it is impossible for doctors not to intend death from withdrawing treatment when they know it is inevitable, but this would not be the purpose. The purpose would be to provide relief to the patient, in which Keown agrees this to be part of the doctrine of double effect. However, McGee is not so convinced.
...(download the rest of the essay above)