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Euthanasia: Protecting 'Right to Die' by Denying 'Right to Live'

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Euthanasia: Protecting 'Right to Die' by Denying 'Right to Live' REVIEW ARTICLE Euthanasia: protecting ‘right to die’ by denying ‘right to live’ Iftikhar Ahmed, MCPS, FCPS, FRCA, FCARCSI, MA (Medical Ethics) Consultant Anaesthetist Correspondence: Dr Iftikhar Ahmed, Consultant Anaesthetist, United Kingdom; E-mail: [email protected] SUMMARY This essay primarily discusses voluntary active euthanasia (VAE); the administration of drugs with the explicit intention to end life at the explicit request of a patient6 and physician assisted suicide (PAS); a variant of VAE where final act of administration of lethal drug is performed by patient and physician merely prescribes or supplies the lethal drug. Euthanasia is discussed with special reference to English Law. Keywords: Euthanasia; English Law; Voluntary active euthanasia; Physician assisted suicide; Manslaughter; Assisted suicide; Palliative care; Withdrawal of treatment; Autonomy; Beneficenc Citation: Ahmed I. Euthanasia: protecting ‘right to die’ by denying ‘right to live’. Anaesth Pain & Intensive Care 2012;16(3):305-310 INTRODUCTION be regulated effectively without abuse.2 Although in Netherland, under Common Law, active In this article, I will first attempt to define and distinct euthanasia was decriminalised in 1984, it took almost key terms, used in euthanasia debate. This will be two decades before it was formally legalised following followed by critical evaluation of the criticism of Euthanasia Act 2002. In the mean time, euthanasia in English Law by the proponents of euthanasia and the form of medically assisted suicide became legal explaination as why such criticisms are morally in Luxemburg, Belgium and Switzerland. However, unjustified. Secondly, I will closely examine the despite extensive debate, changing public opinion and empirical evidence from Netherlands to gauge whether highly publicised legal cases, it remained illegal in many euthanasia could be regulated? Lastly, I will argue why other developed and developing countries of the world. ‘active euthanasia’, despite an attractive proposition The very notion that ‘we do not in any circumstances in few individual cases, could not and should not be allow the deliberate taking of life’ has survived a adopted as a public policy and that the current English century of change1 in philosophical and social attitude Law is morally commendable. towards euthanasia. In the UK, a recent denial of ‘right to die’ to Jack KEY TERMS AND DISTINCTIONS Nicholson has reignited the debate that whether or not, with relevant to euthanasia, the English law is Death is an event, whereas dying is a process. In the past ‘morally obtuse.2 Proponents advance two key legal people used to die within few days following onset of arguments; (i) Law condones ‘doctrine of double effect’; illness, in the confines of their homes without much hastening death through palliation, on the premise that medical intervention, because then little could be done. doctor did not intend, rather merely ‘foresaw’ death, However, advancement in medicine has made this but (ii) exonerates doctors from ‘murder’ despite their process slower, prolonged and burdensome. ‘intention’ to bring patient’s death by withdrawing Killing and Letting Die: Beauchamp and Walters3 or withholding medical treatment; describing their described killing as ‘family of ideas’ involving ‘direct conduct as an ‘omission’ rather than ‘act’. Moreover, causation of another’s death’, whereas letting die while appealing to moral arguments; autonomy and represents allowing natural death to follow an injury beneficence advocates frequently refer to euthanasia or disease, with no causal intervention. However, practices in Netherlands, often claiming that by distinguishing killing and letting die in this way implies legalising, and incorporating safeguards, euthanasia can that killing (positive act) is morally wrong and letting ANAESTH, PAIN & INTENSIVE CARE; VOL 16(3) SEP-DEC 2012 305 euthanasia: protecting ‘right to die’ by denying ‘right to live’ die (omission) is not, but Rachel4 argues that if causing Refusal of Medical Treatment: The legal principle that death is intentional than ‘killing is not in itself any doctors cannot treat patients without valid consent is worse than letting die’. Killing is wrong is not a moral deeply enshrined in English law; and patient’s right to absolute; killing in self defence, killing (by police) of refuse medical treatment, even if that threatens their hostage-takers to save hostages etc, are acts that couldn’t life, is legally protected.11 be prejudged as wrong merely because someone is Palliative Care and Law: Under doctrine of double actively killed. effect,12main versus side effect, principle, and doctors can Euthanasia and Physician Assisted Suicide (PAS): lawfully administer pain relieving drugs to terminally Etymologically it originates from Greek eu ‘well’ and ill with full knowledge and anticipation that such drugs thanatos ‘death’ meaning ‘good death’ or ‘dying well’. could hasten death. further expanded as ‘the act or practice of ending a Withdrawal or Withholding of Life-sustaining Treatment: person’s life in order to release the person from an Lawfulness of intentional causing of death by incurable disease, intolerable suffering or undignified discontinuing life-sustaining treatment was established 3 5 death. However, Keown identifies euthanasia in in Airedale v Bland,13 under premise that such conduct three shades; ‘active intentional termination of life’, would not constitute ‘act’, rather an ‘omission’. ‘intentional termination of life by act or omission’ and ‘intentional or foreseen life-shortening’, perhaps to Is English Law morally obtuse? accommodate English Law interpretations of process of There are three main criticisms of English law; (i) dying in medical context. In fact euthanasia involves Causing death is permissible with pain killers but not influencing the process of dying to bring death earlier by lethal injection, (ii) intentionally causing death by an than expected with a desire to alleviate unwanted, act is murder but not by omission, and (iii) There is a painful and burdensome experience of dying. right to die by refusing medical treatment but not to This essay, will primarily discuss voluntary active active assistance in death. euthanasia (VAE); the administration of drugs with the Intention versus Foresight: Doctrine of Double Effect: explicit intention to end life at the explicit request of a Intention by definition; ‘aiming to bring about a patient6 and physician assisted suicide (PAS); a variant consequence’ is different from foresight; merely of VAE where final act of administration of lethal drug ‘awareness’ that such a consequence might or would is performed by patient and physician merely prescribes occur.5 Otlowski criticises English law treatment of or supplies the lethal drug.7 palliative care practices; administration of pain killers Current English Law that eventually hasten death, and rejects ‘doctrine of double effect’14; “if the first purpose of medicine – the Murder and Manslaughter: Intentional killing is unlawful restoration of health – could no longer be achieved, and constitutes murder. Although there is no statutory there was still much that the doctor could do and he definition but under Common Law a person would be was entitled to do all that was proper and necessary to guilty of murder if; relive pain and suffering, even if the measures he took 1. A causes the death of person B - actus reus might incidentally shorten life by hours or perhaps 12 2. A intended to cause death or grievous bodily harm even longer” (Devlin J, R v Adams). - mens rea Although, an absence of mens rea, might exonerate 3. A could not provide defence of his conduct doctors from murder but they could still be convicted of manslaughter, if causation could be established that Hence, under English law ‘active’ euthanasia would patient died consequent to unscrupulous administration constitute murder. However, doctors are more likely of pain killers.15 However, Otlowski argues that to be prosecuted for manslaughter; causing death determining causation in the presence of terminal through gross negligence or serious breach of duty of illness could be very difficult; therefore doctors are in 8 care, therefore, ‘passive’ euthanasia could constitute fact off the hook.14 manslaughter. Moral distinction between ‘intention’ and ‘foresight’ is Suicide and Assisted Suicide: Although Suicide Act actively contested. Gillon16 describes them as ‘logically, 1961 decriminalised suicide; however aiding, abetting, experimentally, conceptually, legally and morally’ counselling or procuring for suicide remained criminal different and Keown5 draws clear distinction between offences. The Act was further clarified and endorsed the two, but his example that a ‘tipsy guest’ who by House of Lords and European Court of Human drinks too much at wedding reception ‘foresees the 9,10 Rights. Hence PAS constitutes a criminal offence inevitable hangover but hardly intends it’, is rejected under English law. 306 ANAESTH, PAIN & INTENSIVE CARE; VOL 16(3) SEP-DEC 2012 review article by Harris17that even if ‘a person does not intend to by an ‘intention’ to cause death of Bland, doctor have a hangover, they are responsible for it’ and should couldn’t be held criminally liable because consequent be held accountable for missing from the work next death couldn’t be attributed to withdrawal rather to morning. He explained that such distinction is based underlying condition. Ruling was underpinned by on expression of problem rather
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