If we change the law and accept voluntary euthanasia, we will not be able to keep it under control for it would never be legalised without proper regulation and control mechanisms in place. Doctors may soon start killing people without bothering with their permission where there is a huge difference between killing people who ask for death under appropriate circumstances, and killing people without their permission. Very few people are so lacking in moral understanding that they would ignore this distinction and that many are so lacking in intellect that they can't make the distinction above. Any doctor who would ignore this distinction probably wouldn't worry about the law anyway. Health care costs will lead to doctors killing patients to save money or free up beds which is one of the the main reason some doctors support voluntary euthanasia is because they believe that they should respect their patients' right to be treated as autonomous human beings. That is, when doctors are in favour of euthanasia it's because they want to respect the wishes of their patients. So doctors are unlikely to kill people without their permission because that contradicts the whole motivation for allowing voluntary euthanasia. But cost-conscious doctors are more likely to honour their patients' requests for death. A 1998 study found that doctors who are cost-conscious and 'practice resource-conserving medicine' are significantly more likely to write a lethal prescription for terminally-ill patients which suggests that medical costs do influence doctors' opinions in this area of medical ethics.
The Nazis engaged in massive programmes of involuntary euthanasia, so we shouldn't place our trust in the good moral sense of doctors whereby the Nazis are not a useful moral example, because their actions are almost universally regarded as both criminal and morally wrong. The Nazis embarked on invountary euthanasia as a deliberate political act - they did not slip into it from voluntary euthanasia, although at first they did pretend it was for the benefit of the patient. What the Nazis did was not euthanasia by even the widest definition, it was the use of murder to get rid of people they disapproved of. The universal horror at Nazi euthanasia demonstrates that almost everyone can make the distinction between voluntary and involuntary euthanasia. The example of the Nazis has made people more sensitive to the dangers of involuntary euthanasia. Allowing voluntary euthanasia makes it easier to commit murder, since the perpetrators can disguise it as active voluntary euthanasia which the law is able to deal with the possibility of self-defence or suicide being used as disguises for murder. It will thus be able to deal with this case equally well. To use active voluntary euthanasia as a criminal action will involve medical co-operation. The need for a conspiracy will make it an unattractive option. Many are needlessly condemned to suffering by the chief anti-euthanasia argument, which murder might lurk under the cloak of kindness.
Right to die
Everyone wants a good death, which is why through a survey carried out by the Voluntary Euthanasia Society where 85% were in favour of it. Many people have seen friends and relatives die in a long painful death and thought of having their own choice to die. In this matter, there is of course the good and bad side of it.
From the good side, it gives the right of a capable, terminally ill person to escape excruciating pain and holds a timely and dignified death carrys the sanction of history and is implicit in the concept of ordered liberty. The conduct of this right is as central to personal autonomy and bodily integrity as rights safeguarded by this Court's decisions relating to marriage, family relationships, procreation, contraception, child rearing and the refusal or termination of life-saving medical treatment. In particular, this Court's recent decisions concerning the right to refuse medical treatment and the right to abortion instruct that a mentally competent, terminally ill person has a protected liberty interest in choosing to end intolerable suffering by bringing about his or her own death.
A state's categorical ban on physician assistance to suicide as applied to capable, terminally ill patients who wish to escape unendurable pain and short inevitable death substantially interferes with this protected liberty interest and cannot be sustained.
However, the opposing view of this statement is that the history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejections of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted 'right' to assistance in committing suicide is not a fundamental liberty interest.
Under the Human Rights Act 1998, this resulted in several statements of contradictions which give challenge to the act. According to Article 2 of ‘the right to life’, where the court in the case of Airdale Nationale Health Trust v Bland declared that the permanent vegetative state of the patient does not infringe the right to life. In the case of R(Pretty) v Director of Public Prosecutions, where Diane Pretty was a paralyze victim of neurone disease, the court ruled that Article 2 was instructed towards guarding the sanctity of life and did not provide a right to end one’s life.
Historical aspects of medical background
In the early ages, medicine was a matter of mystery as there was no apparent reason why disease struck one person rather than another; the answer had to be found in some kind of supernatural powers. At its inception, the medical profession was elitist. at that time, the functions of the physicians and the jurist were united in the priest of an organized religion. The priest plays the role of not only as a lawgiver and a judge, but also as physician. Thus, medicine and law at that time were interwoven with bonds of religion and tradition. Laws governing who could practice medicine and how it is to practiced dated back to many centuries. Ancient doctors, like today, were subjected to laws. The first laws mentioned were probably those outlined in the Code of Hammurabi, introduced in the 18th century by King Hammurabi of ancient Babylon.the rights and duties of medical men were dealt concisely in the Code.
Medical Ethics
To impose some sense of responsibility, a code of behaviour was introduced within the medical profession which is known as medical ethics. The origins of medical ethics can be traced back to the classic Greek culture where Plato held that only other physicians should judge the actions of physicians. Hippocrates, the ancient Greek who is often called the Father of Medicine, created an oath regarding medical ethics, which is now widely accepted by modern physicians. Many doctors around the globe have taken the Hippocratic Oath when they become doctors.
As to medical ethics, the Oath lays down certain guidelines. Firstly, it implies the need for coordinated instruction and registration of doctors. Secondly, it states that a doctor is there for the benefit of his patients. He must perform to the best of his ability and refrain from causing harm. Thirdly, euthanasia and abortion are proscribed. Fourthly, the nature of the doctor and patient relationship is outlined and lastly, the Oath lays down the doctrine of medical confidentiality.
The good thing about this Oath is that, those not in favour of euthanasia point to the Hippocratic Oath and its prohibition on hastening death. But those who turn to the oath in an effort to shape or legitimize their ethical viewpoints must realize that the statement has been embraced over approximately the past 200 years far more as a symbol of professional cohesion than for its content. Its pithy sentences cannot be used as all-encompassing maxims to avoid the personal responsibility inherent in the practice of medicine. Ultimately, a physician's conduct at the bedside is a matter of individual conscience.
However, the Hippocratic physician rejects the view that the patient's choice for death can make killing him right. For the physician, at least, human life in living bodies commands respect and reverence by its very nature. As its respectability does not depend upon human agreement or patient consent, revocation of one's consent to live do not deprive one's living body of respectability. The deepest ethical principle restraining the physician's power is not the autonomy or freedom of the patient; neither is it his own compassion or good intention. Rather, it is the dignity and mysterious power of human life itself, and therefore, also what the Oath calls the purity and holiness of life and art to which he has sworn devotion.The wisdom of past years and moments enters into the deliberation, but decision making in the present bears a burden that is unique to the particular transaction between the doctor and the individual patient who has come for help. To seek refuge in ancient aphorisms is to turn away from the unique needs of each of our patients who have entrusted themselves to our care.
Legal intervention in medicine
Intervention of law in the area of medicine raises difficult legal problems, as often, there exist ethical, philosophical and religious dilemmas. At one extreme, medical profession should be left to regulate itself and that they should decide what is an acceptable conduct. At the other extreme, law should be means of controlling the medical profession in the interests of the community as a whole. Hoffman LJ in Airedale NHS Trust v Bland advocated that ‘medical ethics to be formed by the law rather than the reverse. However, there are many disadvantages of legal intervention. The courts may find themselves drawn in to act as mediators in complex and frequently distressing matters. Therefore, courts are increasingly reluctant in interfering with clinical matters. A system of fault-based litigation compels judges to make decisions, which they prefer to make in order to protect public policy. They are faced with conflict to do justice to both the patients ant the doctors.
When does a duty of care arise?
It is through the concept of duty of care that the courts limit and control the circumstances in which liability may be imposed upon a defendant for the consequences of his negligence. Judicial attempts have been made to formulate a criterion for establishing duty of care but none has proved satisfactory. The first attempts have been made to formulate a general principle for identifying whether or not a duty of care existed was made as early as 883 in the case of Heaven v Pender in which Brett MR said ‘whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who do not think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger’.
The case of R(Pretty) v Director of Public Prosecutions
In this case, Diane Pretty desperately wanted a doctor to help her to die. Motor neurone disease left her mind as sharp as ever, but it gradually destroyed her muscles, making it hard for her to communicate with her family. It left her in a wheelchair, catheterised and fed through a tube. Diane fought against the disease for the last 2 years of her life and had every possible medical treatment.
She was fully aware of what the future held and decided to refuse artificial ventilation. Rather than the fear of dying by choking or suffocation, she wanted a doctor to help her die when she was no longer able to communicate with her family and friends. She discussed this with her husband of 25 years, Brian, who had to come to terms with what she wanted and to respect her decision. Brian says that losing her was devastating for him and their two children but he would have been pleased if Diane could have had the good death she so desperately wanted, a quick death without suffering, at home surrounded by her family so that she could say good-bye to them.
If she had been physically able Diane said she would have taken her own life. That's not illegal. But because of the terrible nature of her illness she could not do this - to carry out her wishes she would have needed assistance. Diane died in a hospice in May 2002, having fought in the High Court and the European Court of Human Rights.
Comparative study
As early as 1984, the Dutch Supreme Court declared that 'voluntary euthanasia' was 'acceptable', and in 2002, the Netherlands became the first EU country to legalise adult euthanasia. 'Physician-assisted suicide' is now practiced with increasing openness in the Netherlands. 'Assisted suicide' exists in Switzerland; legally condoned, it can be performed by non-physicians. Swiss law clearly decriminalises assisted suicide without the involvement of a doctor; this means that non-physicians can participate in assisted suicide. Though issue remains controversial, many terminally ill foreigners, including Britons, now travel to Switzerland to commit suicide, taking advantage of the Swiss rules, which are among the world's most liberal on assisted suicide.
Following the Belgian Parliament's approval of the euthanasia legislation in May 2002, and further legislation in December 2005, pharmacists can now supply doctors with a fatal dose of medicine, making assisted suicide more easily available. However, in April 2005, the Council of Europe rejected a draft resolution on euthanasia to assist the terminally ill.
The extent of Doctors to be held criminally liable
The British Medical Association opposes voluntary euthanasia. It does, however, acknowledge the complexities surrounding end-of-life issues, particularly the withdrawal or withholding of treatment what some campaigners call "passive euthanasia". A general problem is that not many people can definitively identify who is responsible for death when treatment is withdrawn.
Now the question arise does the doctor have the duty to help his patient die? A doctor's responsibility to acting for patients' good creates a clear duty to help a patient from an excruciating, prolonged death. Permitting a patient to be in pain when it could be ended is a clear breach of the duty of beneficence. Sometimes, because of special aspects of the need, or because of the special relationship, or because of the uniqueness of the knowledge involved, a physician may have a professional duty to assist in a suicide or perform euthanasia.
Therefore, if the doctor is acting on his patients best interest, in my opinion the doctor should not be held liable. However, I am not in favour of the idea on legalizing euthanasia for it is hard to think that creating a structure to regulate euthanasia will have a worse result than not having any regulations at all. Since euthanasia will continue to take place, even though it's illegal, it would surely be better to make it legal and regulate it so as to minimize abuse. A similar argument was used as part of the case for making abortion legal. It's not that convincing if it's the only argument. However, vulnerable patients might be better protected if there were set procedures and rules that had to be followed for euthanasia than they are at present. Indeed a patient who feared that they were under pressure to decide in favour of euthanasia would be able to gain help and support by initiating the formal procedures involved in regulated euthanasia something that they cannot do now.
For safeguards to be meaningful and effective, they have to involve investigations of the patient's psyche, his family dynamics and the financial implications of his death, among with more obvious things such as the patient's medical condition, and the likely course of the disease. In order to ensure that requests are properly considered, both by the patient, the family, and the authorities, regulations need to build in a time-period for reconsideration. Proper regulation must also make sure that a patient was receiving good palliative care before a request for euthanasia is considered. Although the procedures outlined above are time-consuming and expensive, that does not mean that they are impractical.
BIBLIOGRAPHY
Brazier, M ‘medicine, patients and the law’, London, Penguin Books, 1992
A McCall Smith, ‘euthanasia: the strengths of the middle ground’ MLR(1999)
Cameron, JM ‘the medico-legal expert-past, present and future’
Mason, JK & Smith ‘law and medical ethics’, London, Butterworths, 1994
Conolly, WB & Varian, JPW ‘Handbook of Medicolegal Practice’ Oxford, butterworth, 1989
J de Haan, ‘the new Dutch law on euthanasia’ MLR
http://www.bbc.com
Brazier, M ‘medicine, patients and the law’, London, Penguin Books, 1992
A McCall Smith, ‘euthanasia: the strengths of the middle ground’ MLR(1999)
Cameron, JM ‘the medico-legal expert-past, present and future’
Mason, JK & Smith ‘law and medical ethics’, London, Butterworths, 1994
Mason, JK & Smith ‘law and medical ethics’, London, Butterworths, 1994
Conolly, WB & Varian, JPW ‘Handbook of Medicolegal Practice’ Oxford, butterworth, 1989
Cameron, JM ‘the medico-legal expert-past, present and future’
J de Haan, ‘the new Dutch law on euthanasia’ MLR
