INTRODUCTION.. 1

DISCUSSION PARAMETERS. 1

ETHICAL AND LEGAL ISSUES. 2

THE DIFFERENCE OF ACT AND OMISSION.. 3

THE CONSENT ISSUE.. 4

THIRD PARTY LIABILITY IN ASSISTED SUICIDE.. 6

CONCLUSION.. 8

Bibliography. 10

Lord Brown Wilkinson (Adredale N.H.S Trust v Bland, 1993) states that how is it lawful to allow a patient to die slowly although without any pain over a period of weeks but is unlawful to do produce his death immediately with a injection that is lethal thus saving his family from another painful ordeal apart from what they are already suffering? He states that it is difficult for him to find a moral answer to this question. However in law any positive act which has been done and amounts to the death of a person is in fact a murder.

This essay aims at providing a critical analysis to the much debated topic of euthanasia or physician assisted death or the decision of a patient to die and also the ethical and legal debate that have been going on with respect to the same (Amin & Marie Irwin, 2011). There are potential criminal liabilities that exist with respect to this as has already been mentioned by Lord Brown Wilkinson which has given risk to number of controversial as well as sensitive issues.

The following are the issues that are raised and discussed in the essay:

1. The ethical debate that exist with respect to the three paradigms that are competing, sanctity of life, Vitalism and the quality of life of a person.
2. Distinguishing between issues of causation and act and omission.
3. The issue of competence i.e. in what manner can death be influenced by the patient, concepts regarding best interest of the patient and when is a patient competent enough to decide for himself whether he wants to live or he wants to die.
4. The third party liability of those people who are assisting in the suicide of a person.
5. The Human Right impact on this topic.

Emphasis in this essay shall be laid on analysing the legal aspect and possible criminal liability that shall exist due to the act of assisted suicide and the legal causation issue that may arise due to the difference that exist between omission and act. However due to word limit the ethical dilemma shall be discussed in brief with a background on the criminal law.

Whenever there is a question that involves the decision for ending a life of a person the situation shall always have various ethical dilemmas that shall be attached to it. There are three main competing views that shall be highlighted in this essay.

The first being that of “vitalism”, in this paradigm it has been argued that the life of a human being is of absolute value and regardless of what the circumstance is it is necessary to preserve the same.

The “Sanctity of Life” is the second paradigm that exists, it is heavily founded in the religious views and however it has been widely interpreted and accepted across the modern society. This paradigm states that no person shall ever intentionally end the life of another human being. It is only when a person kills another person in self defence is the term innocent use or if another person is killed in execution of capital offenders or due to a war it is only in these situations that killing has been made lawful. This however has little relevance when it comes to the relationship between a doctor and his patient. The assessment that is made by this paradigm is whether the treatment shall have any worthwhile expected effect on the quality of life of the patient (Huynh, 2007).

The Quality of Life is the Last Paradigm, the assessment of this paradigm is based on whether the quality of life that the patient will have is worthwhile in order for him to be receiving the treatment. The worthiness of the patient’s life is assessed through this paradigm. The ethical issue however that arises with this paradigm is who assess whether the quality of life of the patient is worth the treatment. What is the threshold that decides this quality of life?

The doctrine of double effect is another important ethical dilemma that exists. The emphasis in this doctrine is place upon the intent of the parties that area involved for determining whether the act done is wrong or right. There is an example by Keown (Keown, 2002) where he states that there are two dentists Mr. Drill and Mr. Frill, Mr. Drill drills the tooth with an intention to cause pain whereas Mr. Frill drills the tooth to fill a cavity knowing that there shall be some amount of pain suffered by the patient as a side effect. Therefore though both the actions cause the same effect however Mr. Frill has not done anything that is morally wrong however Mr. Drill has.

When the same is applied to the issue that concerns euthanasia paramount importance shall be given to the intention of the doctor. If the intention of the doctor is to relive the patient of the suffering instead of just killing him then in that case it is not wrong necessarily ethically. This principle is not something new. There are certain medications which relieve patients of the pain however they can shorten the life span of the patient, and the doctors are permitted to treat the patients with such medications. Thus the idea behind it is that the doctors shall not be considered to have done anything that is ethically or morally wrong if the same has been done to ensure that the patient is relieved of his suffering and pain and not administered the medication to the patient with intent of shortening his life. It was held by Ognall JJ. in a case (R v. Cox, 1992) that if a doctor is of the opinion that a certain kind of medication shall prove beneficial for the patient despite the fact that he knows that such a medication may cause a risk to his life the doctor has the right to pursue the same.

Lord Brown Wilkinson in the case of Bland had made a clear differentiation between what should be considered as an act and what should be considered as an omission. Since this differentiation affect the possible criminal liability that might be involved with a certain act hence it is extremely crucial. The actus reus and mens rea for murder has to be satisfied with respect to the intention in case there is a positive act that is done to cause the death of another person.

The requirement for causation both legally as well as factually has to be satisfied for ensuring that the act is considered as a positive act. The test “but for” is used for satisfying the issues that arise with respect to the factual causation and the legal causation issues is the test of “something more than a slight trifling or link.” (R v Kimsey, 1996)

A powerful argument was made by an official solicitor on the fact, he stated that simply removing of the nasogastric tube was a positive act however just removal of the tube shall not be the cause of the death of the person. However this has been rejected by Lord Brown-Wilkinson on both grounds legal as well as factual, he opines that the simple removal of tube does not cause the death of the person concerned as it was not just this tube that the entire life was sustained on.

Thus one can put it this way that if the tube was removed the patient would have died however the act of removing the tube was not the operating and substantial cause of the death of the person. Thus on this basis Lord Brown-Wilkinson stated that there is no liability with respect to murder that can be found when it is the simple removal of a nasogastric tube thus it cannot be defined as a positive act.

This can also be taken as an example of judges using their ability for interpretation in given the most just decision. If removing the tube was found to be an act that is positive then in that case the doctors would not be able to do so as it would be illegal and they would be made liable for homicide. This judgment would be completely unjust as in Bland’s case it was necessary to remove the tube in the widespread medical opinion that had been taken even though death was something that was foreseen.

Thus the option that is made available to the parent’s of the patient or the patient himself would not have been made available if this act of removing the tube was declared to be a positive act.

Thus as we have observed that simply removing of the tube cannot be said to be a positive act, it is merely the failure to continue to do something that was already being done, thus it cannot be classified as an act but is an omission. To ascertain criminal liability with respect to omission it is necessary to institute that there existed a duty of care. It has to be understood for a fact that the duty between Doctor and patient has always been established as a duty to care.

Thus in this case of Bland it is an established fact that duty of care existed and there was a breach of this duty to care and such a breach shall attract both civil as well as criminal liability for those people who had assumed the duty to care in this case (R v. Gibbins and Proctor, 1918). However it is important to note that the most essential distinction between omission and an act is that the defence of consent is available with respect to an omission, in which the duty to care shall be extinguished. In the case of bland it was consenting to discontinue both the tube and the feeding, but the next issue that arises through this situation is the ability of the patient to consent.

The patient has the right to refuse a treatment that he has been offered, this is in fact an established rule. There is a potential liability for battery in case there is administration of treatment without prior consent of the patient (Fagun v MPC, 1969).

However it is when the patient is unable to give a consent that the issue arises. There can be any reasons behind this such as mental incapacity or the patient is not in a state of consciousness. The question that arises for the court in this situation is whether the treatment should be administered to the patient or not.

The concept of “best interest” is the one that prevails in this situation i.e. what is required to be done in this case keeping the best interest of the patient in mind (Cavan, 2000). The refusal of a patient for treatment when they are capable of making such a decision is thought to be taken by the patient by keeping his best interest in mind. However when it is a patient who is unable to make such a decision then in that case the decision has to be taken in consonance with somebody else’s opinion as to what is in best interest of the person. There are various cases from which the test of this reasonableness that it should be in accordance with the medical opinion of a reasonable body (Re. F (Mental Patient Sterlization), 1990) (Bolam v Friern Hospital Management Committee, 1957).

In a case wherein a mental patient had begun a sexual relationship with another patient, the question that was brought before the court was that whether a procedure of sterilization could be performed on the patient legally even though the patient did not have the capacity to consent. Lord Goff stated that this was in best interest of the patient and that the procedure should be done since the patient could not himself consent for the same and this was in his best interest.

This case was in contrast with the Bland case as in this case the question was whether the patient’s best interest was in continuing of the treatment or not. Due to his persistent vegetative state the patient himself was not in a state of giving consent for the same. It was a wide body of expert medical opinion which decided that there was no best interest of the patient involved if the treatment was continued and thus there was discontinuance of the treatment due to which the patient died.

The issue that this raises is when will the person be considered to be unable for withdrawing consent for treatment and will it be deemed legal always if it is in best interest of the patient. The answer to this is no. The ration that has been derived from the Bland case is a very narrow one and cannot be used for the interpretation of the issue in question. However this narrow interpretation was not reached by the judge as an accident, Lord Brown-Wilkinson was very much aware of the fact and conscious that he had made the conclusion on legislative grounds that were very narrow and he had done the same to ensure that this does not become a ratio for those cases which are not identical with respect to facts.

Thus there is an important role that is played by competence when it comes to the autonomy of the patient the decision on whether the patient should continue receiving treatment that was life saving potentially, however wherein the patients are not in a situation to make the decision for themselves then in that case the decision shall be made on their behalf on a basis that is very narrow.

Thus the doctors can remove the treatment from the patient those who are competent to decide the same and in very extreme those who are not in the state to take the decision themselves even in those cases where death is a foreseen. Thus one state that so far the only way in which a person can influence the manner in which they die through refusing the life saving treatment that they are undergoing. This though is essentially true however in some countries it has been made legal for patient to end his life via positive means if they are so willing to do.

However when a competent patient wishes to end his life through positive means there is a problem that arises. In UK any positive action that is taken for ending the life of another is nothing short of murder be it under any circumstance. Thus it is essential to see how a third party can be made liable as an accessory to suicide.

The Suicide Act of 1961 states that any person who has aided abetted counselled or procured in a suicide of another person then in that case the person shall be held liable for a sentence to be imprisoned for a period of not more than fourteen years (Sucide Act, 1961).

There are two extremely high profile cases with respect to this one is the case of Diane Pretty (R ( on the application of Diane Pretty) v Director of Public Prosecutions, 2002) and the other is the case of Debbie Purdy (R (on the appllication of Debbie Purdy) v Director of Public Prosecutions, Society for Protection of Unborn Children intervening, 2009). In both these cases the women wanted to travel to another country where assisted suicide was legalised in order to terminate their life. The liability of those people who were assisting them in making arrangements and helping with the travelling was considered. Criminal prosecution could be faced by those aiding them under the strict letter of law.

It states in the Act under section 2(4) that proceedings with respect to section 2(1) can be commenced only if there is consent for the same from the DPP or the Director of Public Prosecutions. Thus what was essential in this case for the plaintiffs was that whether there would be specific guidelines that would be set out by the DP as to when he would choose to proceed for prosecution under the section 2(1) of the act. Both the cases it was held that there was no obligation on the DPP for setting out specific guidelines for an offence that had been committed under the section 2(1) of the act. The general guidance as to whether there shall be a commencement of the prosecution shall be dependent upon whether the evidences are sufficient to ensure conviction and whether if the prosecution held would be in favour of the public, this is also called the “Full Code Test”.

An essential issue that had been raised in the Pretty case was that whether or not the European Convention of Human Right, Article 8 a point of consideration. The argument that Pretty gave was based on the fact that her right of self determination and personal autonomy to make decision that are with respect to her own body is being compromised in this situation as anybody who might be assisting her in her decision might have to undergo prosecution. However the House of Lords held that the rights that she had under Article 8 were not being engaged and her argument were rejected. Lord Steyn stated that Article 8 deals with the prohibition of interference with the way a person would like to live his life however it has nothing to do with the way a person wishes to die. Lord Hope while rejecting the same argument gave another view he stated that though closing moments of her life were a part of her private life as in it as act of living however this does not imply that it would lead to a positive obligation for giving effect to her wish of ending her life through the means of a suicide. Thus the argument that Article 8 was engaged was rejected by the House of Lords. However this judgement of the House of Lords was not consistent with the European Court of Human Rights Judgment where it was found that there was an engagement of Article 8 rights.

The question that was raised in the case of Purdy was that whether they were bound by the judgement of Pretty of whether they are at liberty for applying the ruling that was given in the Strasbourg Court? It was opined that it was not the European Court of Human Rights that the court shall be bound to but the House of Lords and the decision that is required to be followed is that which has been given in the case of pretty and the Human rights argument in Purdy too was rejected based on the similar grounds as Pretty.

The European Convention of Human Rights hardly has any effect in UK when it comes to current law with respect to Euthanasia.  The Suicide Act of 1961 is what the law is still founded upon. However the act has changed with respect to punishing of those people who commit suicide, accepting the fact that the people who are attempting suicide need help and not punishment. Therefore one can state that the same should necessarily stand true for those who are looking for help to commit suicide. The issue that arises is how it can be right to punish the person who is assisting the suicide when the person who is committing the suicide it is not punishable.

The cases such as that of Pretty and Purdy are in fact exceptions and their parents and husbands should not be made legally responsible under the section 2(1). The full code test and the prudence of the DPP enable that when there is no public interest then in that case the DPP cannot prosecute. However if the DPP is of the opinion that for the interest of the public it is necessary to prosecute under section 2(1) then in that case there is another safeguard of the power of the court which shall determine the sentence. If the court judges are of the opinion it is not in the best interest to give a custodial sentence then in that case the court may choose not to give such a sentence.

However if these cases are seen in contrast with the Hough case (R v. Hough, 1984) the difference is quite apparent. The defendant in Hough was prosecuted and he also received a custodial sentence of 9 months. The facts to this given case was different and the defendant had pleaded guilty under attempted murder however it was opined that she was guilty under the Suicide Act of 1961 under the section 2(1). In this case it was held that though there was an  interest that was expressed by the plaintiff to die the defendant should a readiness to play an active party to cause the death and placed a plastic bag over the head of the of the victim to cause her death. There is a scale that exists between humanity and cold blooded murder as per Lord Lane. The above cases were much lower in this scale as compared to the Hough case and hence she was given with a custodial sentence.

The distinction that is crucial with respect to physician assisted suicide is that of act and omission. If we see the case of Antony Bland the positive act of terminating of the ventilation thus in a manner causing the death would attract criminal liability for being a murder and was illegal. Despite the fact that the death was foreseen this would be the case. Criminal law would still see this situation as a murder. This is in support of the paradigm of Vitalism.

However the act of removal of feeding tube was regarded to be an omission. This did not attract criminal liability as the extent to which the duty of care that a doctor has towards a patient was examined and it was reasoned that the doctor did not owe to the patient a duty care that would go further than that what was the best interest of the patient. Since it was not in best interest of the patient and hence the feeding tube was removed. The result would be same with respect to supporting of Quality of Life or Sanctity of Life in case of omission. Though these concepts appear to be similar however the reasoning that exists behind both these concepts is extremely different. Euthanasia though is illegal in UK and will tend to remain the same for quite a long time however a person who is willing to get the aid of assisted suicide to end their life may do the same by going to another country where it is legal such as Switzerland or Belgium and in doing so if their loved ones are involved then they shall not be prosecuted as has been observed through precedents.

Adredale N.H.S Trust v Bland, A.C. 789 (1993).

Amin, Y., & Marie Irwin, A. (2011). Physician assisted suicide. British Journal of Neuroscience Nursing , 506-507.

Bolam v Friern Hospital Management Committee, 1 WLR 582 (1957).

Cavan, S. (2000). Euthanasia: the debate over the right to die. Rosen Pub. Group.

Fagun v MPC, 1 QB 439 (1969).

Huynh, A. (2007). Euthanasia and physician-assisted suicide law. Canadian Law Library Review , 22.

Keown, J. (2002). Euthanasia, ethics and public policy: an argument against legislation.

R ( on the application of Diane Pretty) v Director of Public Prosecutions, All ER 1 (2002).

R (on the appllication of Debbie Purdy) v Director of Public Prosecutions, Society for Protection of Unborn Children intervening, All ER (D) 197 (February 2009).

R v Kimsey, CrimLR 35 (1996).

R v. Cox, 12 BLMR 38 (1992).

R v. Gibbins and Proctor, 13 Cr. App. Rep 134 82 JP 287 CCA (1918).

R v. Hough, CAR (S) 406 (1984).

Re. F (Mental Patient Sterlization), 2 AC 1 (1990).

Sucide Act. (1961). Section (2) 1.