Euthanasia Notes from Lecture PDF

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Euthanasia – 07/02/ Voluntary: death is consciously wished. Non-Voluntary: person unable to express wish. Involuntary: death is not wished (murder). Distinguish Active ; killing – dr patient – ‘mercy killing’ a. In law not permitted, dr’s enjoy leeway. ‘Moral elbow room’ b. Killing ‘hastens the deat...

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Euthanasia – 07/02/2020 1. Voluntary: death is consciously wished. 2. Non-Voluntary: person unable to express wish. 3. Involuntary: death is not wished (murder). Distinguish 1. Active; killing – dr patient – ‘mercy killing’ a. In law not permitted, dr’s enjoy leeway. ‘Moral elbow room’ b. Killing ‘hastens the death’ (sufficient contribution in law) c. Many medical treatments to relieve pain for terminally ill will hasten death. d. Dr Adams (1957) Drs may do ‘all that is proper and necessary to relieve pain…, even if the measure…may incidentally shorten life.’ e. Cox (1992) ‘What can never be lawful is the use of drugs with the primary purpose of hastening the moment of death’ i. Primary purpose must be to ease pain. f. Does dr not know what result be? i. R v Woolin and law of indirect intention (virtually certain). 1. Even with primary purpose won’t dr foresee death as ‘virtually certain.’ g. Compare parents w/ dr’s i. Parents can’t treat child or use ‘primary purpose’ rule. ii. So a parent who kills their sick child is guilty of murder. 1. Cases of this Frances Inglis and Kay Gilderdale. a. Inglis (2010) – son badly brain damaged through falling out of ambulance, mother killed him because convinced he was in agony ‘with love in her heart,’ claimed provocation but not loss of control. i. Is this not diminished? ii. Depressed, suffering PTSD. iii. Refused to plead diminished. Sentenced to 9 years. Reduced to 5 on appeal (DR and mercy killing mitigating factors (CJA 2003, sch.21) b. Gilderdale (2010) – daughter suffering from long term ME; had attempted suicide. i. Charged with attempted murder. Pleaded guilty to aiding and abetting suicide. Jury refused to convict. Judge criticised CPS for prosecution. CPS replied that ‘the intent was there’ ii. ‘One mother goes free, another gets 9 years’ h. Contrast the law: active killing impermissible. i. ‘Sanctity of life’ vs ‘Quality of life’ ii. Indirect intention rule ignored with Drs. iii. But not parents: ‘jury equity’ needed. 1. Jury equity: jury permits when it should not according to the law. 2. But differences between juries and precise moral facts of cases. iv. Cf Inglis vs Gilderdale. 2. Passive; letting die – dr – badly damaged new born – turning off life support. a. Letting die allowed in some circumstances. b. Non-treatment of badly damaged new born.

Euthanasia – 07/02/2020 i. Dr Arthur’s Case (1985) – can let a newborn die under certain circumstances. ii. Airedale NHS Trust v Bland (1993) – patient in vegetative state doctors could remove naso-gastric tube where: 1. ‘in best interests of patient’ and ‘having regard to established medical practice’ then ok to remove naso-gastric tube. c. Different from killing as it is an omission. ‘Letting nature take its course.’ d. Point of criticism. But if someone is on a life support system, is it not an act to remove him from it. ‘Stopping treatment’ or ‘Switching off.’ Is it omitting to treat or acting to remove tube. 3. Assisted; helping another to kill him/herself: a. Suicide Act 1961 s.2(1) ‘A person who aids, abets, counsels or procures the suicide of another…shall be liable for [up to] 14 years.’ b. Against 1961 Act. DPP uses discretion to prosecute. i. Problematic as family would not know if they would be prosecuted so unsure whether they could help. c. Issue of ‘suicide tourism’ to avoid prosecution – Dignitas (Switzerland) i. Still counts as assisting suicide. d. Purdy (2009) DPP must publish prosecution guidelines. i. Guidelines: (victim) 1. the ability of the deceased to make a sound choice: a. victim was under 18; b. did not have the capacity to reach an informed decision; c. had not reached a voluntary, clear, settled and informed decision; d. had not clearly and unequivocally communicated a decision to commit suicide to the suspect; e. did not seek assistance on own initiative. ii. Guidelines: (suspect) 1. was not wholly motivated by compassion, eg, he stood to gain from the death; 2. that he pressured the victim; 3. a history of violence or abuse against the victim; 4. that the victim was physically able to undertake the act him or herself; 5. that the suspect encouraged or assisted the victim by providing information via a website or publication; 6. gave encouragement or assistance to more than one victim; 7. was paid for his or her assistance; 8. acting in capacity as doctor or professional carer; 9. Acting as person in organisation or group, whose purpose is to ... allow another to commit suicide. e. Guidelines quasi-legal instrument. (source of law) i. Creation of laws without democratic legitimacy? Formal prohibition allows for prevention of slippery slope. But many people cannot afford good death (flying to Switzerland). Defence of Necessity. Relevant to euthanasia.

Euthanasia – 07/02/2020 Conclusion Lesser offence of mercy killing? 3 area of legal problems: •

1.

Letting die – the act/ omission distinction

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2.

Killing – the purpose rule (doctors); jury discretion (parents)

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3.

Assisting suicide – prosecutorial discretion

No consensus in society. We use law and discretion to avoid the conflict....