Introduction
Within the current criminal law consent is considered to be transformative, as even if the act is harmful, when consent is given you can do no wrong. The large debate surrounding consent within the criminal law proceeds from the idea that there must be a limit to the degree of harm to which a person can lawfully consent to . In some cases, the defence of consent may dissolve the defendant of criminal liability, however it cannot be used for certain notifiable crimes such as murder and manslaughter. The only legal example of consenting homicide, in certain European jurisdictions, is euthanasia and ‘mercy killing’; although in England and Wales this would be considered murder. This submission will discuss the current criminal law relating to both consent and homicide; reviewing the strengths and limitations of the current law and suggesting possible reforms. By analysing the current law on consent, and focusing on the area of homicide, it is clear that although the existing law has its advantages, there are areas that could be improved with reform.
The Criminal Law relating to Consent
The idea of consent in the modern day is that it is expected to protect individual interests, to promote personal autonomy, to act as a foundation for trust, and also to stand as a foundation for research. The primary aim of the law of consent is “to ensure adherence to its constituent requirements of competence, information, voluntariness and expression, on the assumption that doing this enables an autonomous decision to be made” . However, the law on consent can be applied differently to a variety of situations and circumstances. The legal foundation of consent in relation to medical practice is that “no treatment should be given in the absence of valid consent” . Consent is often described as exercising our legal right to choose, although this depends on agreement with the idea of the liberal subject and personal autonomy, as many see consent as simply fictional. Although, some academics hold the view that the requirement to obtain consent acts as a form of empowerment, allowing individuals to take part in their own critical decision making.
The affirmative model, which is largely endorsed in the United States, requires a person to say yes in order to give consent; although this model is most commonly used in reference to agreement to sexual activity. Similarly, the model of informed consent refers to knowing all relevant information about the procedure before agreeing; this is particularly important in medical law. Consent is often “emphasised as the event or process which legitimises medical intervention” , however there are certain circumstances in which some patients may be deemed incapable of giving informed consent. If an adult patient is mentally ill, it is unethical and illegal for someone to give consent on their behalf, thus in this situation a doctor owes a duty of care towards the patient to treat them in the patient’s best interests .
Consent law and its restrictions
The concept of individual autonomy does not apply to those who do not have the adequate intellectual capacity to lead an independent autonomous life. Similarly, an expression of consent may be considered ineffective due to this incapacity to decide, or in rarer conditions, consent may be invalidated due to a situation of coercion. If the primary function of the principle of consent is to protect our legal rights to autonomy, academic analysis should be directed towards whether or not the current consent law achieves this goal . Moreover, it is argued by many that few decisions are totally free as we are subconsciously influenced by circumstances and different situations; thus, the idea of free voluntary and uninfluenced consent is unrealistic. Therefore, although there are certain strengths of the law relating to consent, it would be beneficial to adapt the law in order to be applicable to all people in all situations.
The Criminal Law relating to Homicide
In England and Wales, the act of murder involves the intentional infliction of serious harm which causes death; resulting in a mandatory life sentence. However, this means that in “English law a defendant may be convicted of murder who is in no ordinary sense a murderer” . This statement by Lord Steyn refers to the idea that when talking about murder, most assume there is an intent to kill, when in reality there does not need to be intent to be liable for murder; only the actus reas is needed. Hence, in England and Wales the person who takes the act of killing the other for euthanasia is guilty of murder. The offence of euthanasia can be divided into active or passive, referring to the legal distinction between acts and omissions. This means that although a capable adult may consent to euthanasia, it is still considered murder under the criminal law.
Various European jurisdictions such as Belgium, Luxemburg and the Netherlands allow euthanasia, providing that a common three criteria have been met . The first being that the person has made an active and voluntary request to end their life, the second being that they have the sufficient mental capacity to make this informed decision, and thirdly it should be agreed that the person is suffering unbearably and there is no prospect for improvement in their condition.
Section two of the 1957 Homicide Act states that “a person (D) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning” . Thus, diminished responsibility can be used as a defence to murder. Diminished responsibility can be claimed through a mental illness; consequently, the charge of murder will be reduced to voluntary manslaughter where the mens rea for murder is present but there is a reason why the defendants culpability is reduced. Although, it is left to the jury to decide whether or not they think the defendants medical condition has affected his/her actions as they are not bound to accept medical evidence as there may be other circumstances to consider .
The current legal position on the relationship between Consent and Homicide
At present, the criminal law in England and Wales does not accept consent as a defence to any kind of homicide, including euthanasia. Although the law does recognise that “consent is central to understanding the relationship between medicine and the law” , however the choice to die with dignity by euthanasia is not considered moral or lawful. As stated previously, someone who has committed an act involving the intentional infliction of serious harm, resulting in death is liable for murder. However, many criminal cases concerning acts of omission leading to death do not acknowledge the issue of consent. For example, in R v. Stone and Dobinson, the defendants were seen to have voluntarily assumed a duty of care for the victim who was unwell and had declined medical care, food and drink. Both Stone and Dobinson were fully aware of the victim’s condition and failed to successfully get her the medical help she needed, thus it was decided that they had neglected their duty of care and were charged with manslaughter by gross negligence. While it is true that Stone and Dobinson disregarded their duty of care, this case assumes that a duty of care negates the need for individual consent of the victim, as there is no recognition that even if Stone and Dobinson had provided the necessary medical care, the victim may not have consented to the treatment. Thus, it is clear that the criminal law often overlooks the issue of consent in cases regarding a duty of care; consequently, it is arguable that the current law concerning the relationship between homicide and consent is unsatisfactory.
In homicide cases concerning the defence of diminished responsibility, the conviction of the defendant is often reduced from murder to manslaughter. However, the 2006 Law Commission report on ‘Murder, Manslaughter and Infanticide’ argues that where the defendant’s diminished responsibility was the cause of his or her conduct in killing the victim, but the victim had previously consented to the killing, it would be wrong to allow this consent to result in a conviction of manslaughter instead of second degree murder . This brings to light an interesting debate concerning the relationship between diminished responsibility and consent, causing many to question whether the presence of consent should cause us to overlook the defendants diminished responsibility and continue with the conviction of murder rather than reduce it to manslaughter; as consent implies intent to kill. This means that there are ambiguities in sentencing criteria, suggesting that various reforms creating clarity regarding diminished responsibility and consent to killing, would result in more accurate sentencing.
Assisting or encouraging suicide is recognised as a criminal offence under the 1961 Suicide Act , thus research suggests that due to euthanasia being strictly forbidden in England and Wales, many terminally ill patients wishing to “die with dignity” on their own terms are forced to travel to other European jurisdictions such as the Netherlands and Switzerland where human euthanasia or assisted suicide is legal. However, in certain situations such as that presented in the case of Nicklinson v Ministry of Justice, patients may be unable to travel to achieve their wishes to end their suffering. Nicklinson applied to the High Court for a declaration that a doctor could lawfully assist him in ending his life , although this was refused. Consequently, Nicklinson refused all food and died of pneumonia in 2012. This current, arguably outdated and largely unpopular law prevents people such as Nicklinson from taking control of terminating his suffering in a painless and peaceful way. However, following this trial, updated guidance from the CPS stated that prosecution is less likely to be required if “the victim had reached a voluntary, clear, settled and informed decision to commit suicide ” and if the suspect in question’s actions “were of only minor encouragement or assistance” . This suggests that governmental attitudes are changing along with those of the public, which is a positive step towards reform.
Suggested Reforms
Everyday patients give their free and informed consent to medical procedures, knowing that they may be harmed or even die as a result. This leads to the question that if consent to these surgical procedures is considered satisfactory, why is euthanasia and assisted suicide excluded as wrong if there is significant public support for it? Although, a possible reason for inhibiting this legalisation is the issues surrounding the adequacy of consent procedures. Many academics have argued that autonomy is a myth and that few decisions of consent are ever totally free as we are subconsciously influenced by other people and our environments ; thus, it becomes difficult to be entirely certain whether consent is valid. This ambiguity over acceptable consent procedures, “coupled with concerns about professional accountability are unavoidable” . Consequently, any proposals of reforms to change the law in favour of voluntary euthanasia would need to be “based on mechanisms for ensuring that consent is freely given, informed and valid” , to attempt to combat this issue.
The current system in medical practice of informed consent is an ideal concept in theory as it means that consent is clear and undisputable. In most situations the signal of consent is verbal, while in medical conditions consent is preferably shown through a signature. However, in practice, the system is flawed as “the emphasis is not on the patient’s understanding of information but on his or her signal that the doctor may proceed with treatment” . Therefore, as the current law relies heavily on consent forms, it is possible for consent to be invalid if the participant does not fully understand what they are agreeing to, even if their signature is given. Similarly, it is suggested that consent should be regarded as a continuing relational process between involved parties , particularly when the consent is concerning serious irreversible procedures such as euthanasia, assisted suicide or life-threatening surgery. Continuous confirmation of consent to demonstrate trust would remove possible uncertainties and would particularly impact sentencing in cases concerning potential homicide. Consequently, moving forward emphasis should be balanced between the signal of consent and the understanding of what this consent means, in all aspects of life not just medicine.
The law relating to homicide is complicated, particularly distinguishing between murder and manslaughter. This means that in cases concerning consent, it is even more difficult for the judge to give substantial direction to the jury. Evidence has led to the conclusion that recognising consent to be killed as a new partial defence, separate to the defence of diminished responsibility, would allow the jury to reach a verdict of second degree murder with intent in cases where there is no abnormality of mental functioning . Hence, any proposed reforms of the law of homicide relating to consent should certainly aim to focus on clarity and the introduction of new legislation, in order to make the tasks of the judge and the jury more straightforward in exercising their discretion when reaching a verdict .
Furthermore, although the definition of explicit consent under the 1998 Data Protection Act is somewhat ambiguous, it is clear that it is only advisable rather than obligatory that this consent should be obtained in writing . This in turn may also confuse members of the jury as to what constitutes a satisfactory expression of consent. Therefore, it would be arguable that implementing a statutory obligation to obtain consent in writing would reduce the disparities between cases and result in quicker, more efficient and more objective sentencing. However, although having a document of written consent would be helpful, “we cannot assume that this document has independent legal force” , as it would serve simply as a record of prior consent.
Conclusion
The current law on homicide is largely satisfactory and clear in the definitions of both murder and manslaughter, although in complicated cases it can often be unclear which conviction best fits the crime. However, introducing the defence of consent into a homicide case can often cause the trial to become confusing as there is an inherent lack of clarity on how these two issues of law relate. Thus, after analysing research and evidence, it is arguable that if the basic laws of consent procedure are adapted, dealing with homicide and consent issues together will become easier in turn. Research has suggested that the current legal position on consent of homicide is largely unclear and for this reason there appears to be a significant lack of legislation on the issue. Implementing the proposed reforms would bring much needed clarity to the complicated and largely undocumented issue of homicide with consent in England and Wales.