Euthanasia: a Critical Analysis.

It was then the questions raised by both the bland and earlier case of Cox which demanded a House of Lords select committee be created to examine the issue. They conclude unanimously by saying that no change be made to the law, believing that “the answer is not to change the law, but rather to improve our standard of care.” In reality, this is simply not the case. Euthanasia is defined in the report as “a deliberate intervention undertaken with the express intention of ending a life to relive intractable pain”. Thus, Euthanasia is defined as involving a positive human act and this decisively changes the value of the report. Within the judgements of Bland “some of the law lords explicitly recognised that this ruling relies on a morally indefensible distinction which renders the English law of homicide incoherent. For that, the law after bland, treats as criminal a death causing act, while treating as lawful a death causing omission deciding upon with the very same intention of causing death”. The upshot of which is that, English law has placed itself in an overwhelming flood of confusion, made even more bizarre by Lord Mustill’s conscience voicing of the mind. While this contradictory doctrine remains “then the law saying both ‘yes’ and ‘no’ to Euthanasia. It did not say no to Euthanasia before Bland, and the Walton committees apparent ‘no’ contributes nothing to judicial contrived ‘yes’”.      

Furthermore, the committee continues to upset the issue of passive Euthanasia. In the same tradition of the American common law courts, the committee producing a strong and substantial endorsement of the right of a competent patient to withdraw or abscond from medical treatment. While this declaration seems to employ little effect of common understandings of the matter the issues of suicidal intent is not addressed - that “a refusal motivated by suicidal intent is unlawful even though suicide itself is not a criminal offence”. Thus, discounting this submission that a competent individual cannot wish to commit suicide the committee have further embodied themselves within these contradictions, as “If suicidal intent was not unlawful, it is difficult to see how it could be maintained that assistance, and agreements to assist, in suicide are serious criminal offences”. It may then be surmised that at present English law concerning Euthanasia is not only insufficient, but is largely incoherent and contradictory.

The established Irish authority, and indeed the only Irish authority, is Re. A Ward of Court. This however, is made difficult to recognise by the statements of Hamilton CJ and O’Flaherty J in the Supreme Court by the ruling that this is not a case concerning Euthanasia.

In 1972, during the course of a minor gynaecological operation, the Ward suffered three cardiac arrests and became a victim of anoxic brain damage the result of which left her in a near PVS. At this point two important factors should be established: the Wards condition was static, while no curative treatment existed; her life was and prospectively would be under no danger. Secondly, the Ward did obtain and indeed demonstrate cognitive ability. She could not speak but react to noise with her eyes. She held a propensity for recognising long established nursing staff and had on many occasions succeeded in removing the gastronomy tube, her sole life preserver, arguably due to immense discomfort.

In the High Court, Lynch J, was confronted with two constitutional provisions, the rights of the family “as a moral institution, possessing inalienable and imprescriptable rights, antecedent and superior to all positive law.” And the unenumerated right to life and the states interest in preserving it under article 40. In his judgement Lynch J adopts the best interests approach and asserts the Parens Patraie jurisdiction, exercised by the Lord Chancellor over patients non-compos mentis, in granting the release sought by the applicant. In the Supreme court appeal his judgement was upheld by a 4-1 majority, for while the state held an interest in preserving life it was not absolute, that “it might never the less be subject to the citizens right of autonomy, self-determination, privacy or dignity, when exercised by a competent decision on their behalf”.

In his judgement both Hamilton CJ and O’Flaherty J also explicitly argue that a complete and self-evident ban exists upon Euthanasia under Irish law, “no person has the right to terminate or have terminated his or her own life or to accelerate or have accelerated his or her own death”. However, neither continues to compound the matter with an explanation. Similarly, in relation to the relevance of article 41 both Hamilton CJ and Denham J conclude that as a Ward of court the opinions of the family will carry considerable weight but are not binding. However, no thought is given to procedures involved where the patient is not a ward of court. As such it is only medical guidelines and extra-judicial writings of Costello J , which can afford some guidance.

According to Blayney J, Lynch J fully addressed the question of “whether or not it was of any benefit to the ward to prolong her life given the burdens on the ward involved doing so and the fact that no improvement on wards condition can be expected”. Yet he makes no effort to identify any limits of the courts authority to consent to treatment, no indication of the level of cognation necessary for this course of action to be employed. Moreover, his formulation of the best interests test provides “no basis for distinguishing between passive and active Euthanasia or even, perhaps more ominously, between voluntary and non-voluntary Euthanasia”.

The employment of a best interests test may also be called into question, as while this was the test endorsed by the majority, the autonomy of the patient was also stressed, this right was still active under the principle of equality. These two issues may then be seen to be brought into confliction as such a test cannot be “compatible with a legal regime which purports to give effect the autonomy of the individual as such a test clearly carries with it the power to override the express wishes of the individual in what might be seen to be his best interests”.

It is the lack of a unanimous decision and the failure of the majority to establish one idea underpinning all of their judgements, which is the downfall of Ward. Without any distinguishable ratio, the case fails to make any real progression in the law.

In isolation of these cases, I feel it is necessary to consider the case of Nigel Cox In 1992 Dr Cox, a qualified Rheumatologist administered a lethal potassium chloride to a long-standing patient in immense torment. Due to the cremation of the body, Dr Cox could only be charged, and later convicted of attempted murder. In England in 1957 the double effect principle, first formulated by St Augustine, was laid down in English law through the prosecution of John Bodkin Adams. Here, the defendant as not held to be liable as while a lethal injection of narcotics had indeed been supplied to the patent, the sole intent had been to relieve pain. Thus a lethal injection may legally be administered to a patient if the sole intent of a qualified professional is to alleviate pain as opposed to instigate death. However, in Cox, the application of potassium chloride could only be seen as the intentional taking away of life as the injection held no curative purpose.

It is through this example that distinctions between passive and active Euthanasia should be debated. In variably, had treatment been withheld or active Euthanasia employed, death would have resulted. What then would have been seen to separate the two is the immense suffering of the patient, for “if one simply withholds treatment, it may take the patient longer to die, and so he may suffer more than he would have had a lethal injection been given”.

It is not the legal reasoning behind the case of Dr Cox to be called into question but rather the contention that active Euthanasia should be criminalized. In reference to the Ward case, Lynch J asserts that a competent individual “may elect not to enforce his personal rights, including his right to life”. In conjunction with this, Peter Singer asserts that the fundamental property behind a right is the choice to invoke it. Reinforcing this supposition is the idea of intention. A substantial case could be made supporting the contention that the double effect principle falls under the category of oblique intention. If this is accepted it seems absurd that these cases remain exempt from prosecution while cases involving active Euthanasia may result convictions.

The foreign jurisdictions of Oregon and the Netherlands have both established legal policy in permitting Euthanasia, yet neither exists without its flaws. Under the Vacco V Quill it was concluded that the equal protection clause of the 14th Amendment might be extended to afford a right to die. The value of this right is, however, not so clearly established. In Oregon a lethal combination may be ingested, but they must be both administered orally and by the patient themselves. The state of Oregon have then, in effect, legalised Euthanasia to ensure equality between terminally ill patients only then to deny to those who are for example unable to swallow or unable to move. The Netherlands has taken somewhat more drastic measures. In 1997 43 people died as a result of Euthanasia in Oregon, compared with the figure of 2000 in the Netherlands. What is even more startling is that 0.8% of these were non-voluntary cases, and that the physicians themselves are responsible for the submission of a report which illustrates that all guidelines have been adhered to.

It is my submission that the law in both England and Ireland is in need of law reform on the substantive issue, in the form of the Executive formally laying a Euthanasia bill, the question to address now is how? Dr Ruth Annel submits the proposition to have “a comprehensive, radically definitive bill that one can defend wholeheartedly and in good conscience, than a compromise that would solve too small a part of the problem”. However, I have already outlined the difficulty that has produced in the Netherlands. Thomkin and McCauley advocate the introduction of a medico-legal tribunal, invested with the authority and jurisdiction to investigate Euthanasia requests, and to vindicate them in some instances. Alternatively I would simply advocate for the de criminalizing of active voluntary Euthanasia of terminally ill patients, yet in recognition of the right of autonomy, I would contend that in the absence of any advance directives no substituted judgements should be employed.

The difficulty involved in introducing such a law would be immense as any pro Euthanasia Bill would seemingly be at ends with Article 2 of the European Convention On Human rights, “ No one shall be deprived of life intentionally”. Law reform may therefore be forced to take place on a much larger scale than anticipated. In conclusion I would refer both to the words of Proffessor Kalven and Dr Ruth Annel, by saying that if a good law existed there would be no strong case for changing it and that “It seems certain that it is only a matter of time until laws will be enacted that will permit the administration of painless death when the only alternative is an agonizing or meaningless existence”.

BIBLIOGRAPHY

Criminal Law                                                                                          Peter Charlton

Euthanasia Examined: Ethical, Clinical and Legal perspectives           John McKeown

Freedom to Die                                                                                       Dr Ruth Annel

Killing and Letting Die                                                                           James Rachels

Medical Law: Death Dying and the Law                                                Dermot Feenan

Right to die and the Irish Constitution                                                     White   G

Voluntary Euthanasia and the common law                                      Margret Otolowski

        

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