Euthanasia principles. Euthanasia is intentional and painless

Euthanasia and
Assisted Suicide (Assisted Dying) remains highly topical and debated, both in
the public and medical arena. In an increasingly modern ‘patient-centred’ health service individuals
demand to make vital judgements about their own fate1. Keeping
with the trend to review the current laws, this paper will examine the ethical
and legal issues surrounding assisted dying, centring the discussion around
relevant principles.

Euthanasia is intentional and painless taking
of life of another person, by act or omission, for compassionate motives2. It was derived from the
Ancient Greek language and can be literally interpreted as ‘good death3.’
Despite its prima facie meaning, the
question whether or not euthanasia is a ‘good death’ is highly controversial.
Euthanasia has many definitions and may also be characterised as voluntary,
involuntary or non-voluntary depending on the patient’s capability and consent.
The issues in this debate usually revolve around patients who are terminally
ill or suffering intractable pain. However, pain is not the only determinant,
problems become more complex when question of intent and causation are the
focus as euthanasia has not been performed unless the intention was to cause
death.

Focus will remain on Physician-Assisted
Suicide in this analysis; another form of voluntary euthanasia, involving a
patient voluntarily ending their life. This differs as it is facilitated by a
physician who confirms the diagnosis and provides the means for committing
suicide.

This paper will be arguing for the
legalisation of assisted dying, while highlighting many limitations which may
arise. It will relate back to how legislation could be interpreted and changed
to fit the goals of medicine.

Current Law

Euthanasia and Assisted Suicide fall within
the common law of homicide in Scotland and only if intention and causation is
established, is it deemed a crime4. Contrasting with England
and Wales where euthanasia falls under murder or manslaughter5, assisted suicide is illegal6 with the exception of the
doctrine of double effect7. Due to the success in the Purdy case8,
where defining assisted suicide came into question, the DPP felt necessary to
further issue guidelines, distinguishing criminality within assisted dying
precisely, including factors such as financial gain or any previous abuse
against the person they assisted and more. If evidence of compassionate
motivation is clear, there is unlikely to be prosecution9.

Current law in Scotland has been scrutinised
due to difficulties issuing guidance on the matter, as there is no clear path
to avoid criminality10. There have been many
attempts to legalise assisted dying, which would have allowed a person with a
terminal, life-limiting or life-shortening disease to end their life after
being prescribed with a life-ending medication by a doctor. However they were
regularly defeated11.

The lack of clarity in the current law will be
discussed further in the body of this paper where we will see how legislation
could bring clarity for euthanasia and assisted suicide rulings and meet the
goals of healthcare.

Goals and Professional-Patient Relationship in Healthcare

Medical
law has changed drastically over the past decade with the constant battle
between evolutionists and essentialist theories.  The Hastings report highlighted the current
goals of medicine; saving and extending life; promoting and maintaining health;
and preventing premature death while promoting peaceful death12.
Modern medicine has arguably made death a more complex problem as a moral and
medical balance has to be reached. This struggle is made evident from
professional-patient relationship which has shifted from a paternalistic
approach, now governed by the principle of autonomy. 13 Evidence
shows that although majority of doctors were opposed to any legalising of
assisted dying14,
75% of the British public agreed the law should provide assistance for death15.
This shift contributes substantially to the debate for legalisation.

Argument 1: We want it

Autonomy:

Autonomy
is vague and therefore a number of theories have been developed when analysing
the self-determination concept16.
The basic premise underlining autonomy is its focus on the liberty and capacity
while the paternalistic nature of doctor-patient relationship has become
unacceptable17.
There is a positive obligation on practitioners to obtain consent, maximising
autonomy even in the situation of life-saving treatment18. The
expectation in relation to autonomy now implies that since a right to consent
or refuse medical treatment is present, one can simply decide how to live their
life and a “good life” at that19,
as a person holding rights rather than a recipient of care20.
They should be allowed to determine their manner of death (Beauchamp and
Childress 1994)21.
This highlights the evolutionist approach to goals of medicine, as they believe
that the values should adapt to society and if their wish is to promote
peaceful death then denying competent patients the right to end their own life
is denying their autonomy22.
Legalisation would ensure patient’s autonomy is maximised.

Opponents
would argue from R v General Medical
Council23 ;
although there is the right to refuse, patients cannot request treatment;
therefore there should be no right to request life-ending treatment. Harris
(1985) went on to counter Beauchamp and Childress by stating that where a
patients autonomy is being granted, a doctors autonomy is being stricken. This
could potentially strain the doctor-patient relationship as sensitive staff may
find it extremely difficult to make these decisions but also the doctors would
essentially be given a duty to kill. This does not tie in with the beneficence
principal for medical practitioners. Coggon argues that doctors are under a
duty to provide appropriate care for the patients interest, is killing them the
most appropriate choice24?
There is no ‘right’ to be killed and Keown agrees there are real dangers of
‘slippery slopes’ here with the inconsistency of autonomy25,
potentially opening the doors to abuse through non-voluntary and involuntary
euthanasia, by giving doctors the power to decide when a patient’s life is not
worth living26.
Proof here can be shown from the Netherlands where in 1990 around 1,000
patients were killed without their request27. Further
to this, essentialists argue that the original goals of medicine would be
forgotten if this power was given to practitioners28.

Although
the “slippery slope” concept airs legitimate worries, it would be fair to argue
that the notion of legislation leading to bad results is not a valid enough
reason to deny patients assistance in death29, in a
sense they are merely scare tactics with no proof30. As s 87%
of the public believes that an assisted dying law would actually increase their trust in doctors31, leglalising the choice
on when and where to die would allow open and honest conversations with
practitioners. This is currently not active under the current law. 

Human Rights:

Article
8 of the European Convention of Human Rights recognises the concept of autonomy,
however it is not absolute. But this recognition has been followed through in
case law whereby the right to private and family life is infringed. Lady Hale and Lord Kerr even stated that they would
have issued a declaration of incompatibility between the current law and
assisted suicide32.

However
here are opposing arguments present here. Article 8(2) limits autonomy to an
extent to ensure the “greater good”. This was highlighted in the case of Pretty v UK33 where the
goals of medicine were taken to be universal from a utilitarian approach
instead of individually focused. Looking at autonomy from a wider perspective
the courts held that although the claimant’s right to choose how to die came
within her right to life, the ban on assisted dying would be to protect
vulnerable people. The courts here went further to say that Article 2 – right
to life does not constitute the right to die but in fact the responsibility for
state to protect life and therefore legalisation would be infringing duties of
the state. The principal of non-maleficence is relevant here as the medical
goal of “do no harm” is a cornerstone of the healthcare professional’s duty of
care, a duty which legislation of euthanasia would overturn so that the
patient’s life would be ended. This would be disregarding the ethos of medical
practice.

The
above highlights that it is not quite clear how autonomy is understood as an
argument for this action. If legalised there would have to be a firm meaning
determined in order to ensure abuse of the process would be controlled and also
including safeguards to protect vulnerable patients that the doctors would be
obliged to follow.

Argument 2: We need it

Dignity:

The
notion of Dignity, although not defined, is a basis on which human life is
lived. It has been clearly stated as a fundamental principle in relation to
assisted dying through ECHR jurisprudence.34 The
argument here is that people would rather die with dignity than go through the
suffering and feeling of vulnerability. It considers the worth of the person.
Many philosophers believe that dignity comes in the form of autonomy35.
Legalising euthanasia and assisted suicide would allow society to avoid facing
humiliation and dehumanisation, showing more compassion for the ill. The point
here can be emphasised by the concept of Quality of life, where life is
regarded as valuable when it includes certain qualities of enjoyment36.
A loss of sense of self is a strong argument for legalising assisted dying, as
evidence suggests patients are extremely concerned with their fear of loss of
control37
and unbearable suffering as shown in Dutch law38.

However
Singer argues that this conflicts with the concept of sanctity of life. Over
the years this has become a prominent obstacle for legalisation due to the
universal belief that human life must be preserved at all costs39.
Essentialists would agree here, as the roots of original medical goals are
heightened with the perspective that life is created by God, and thus holds a
value of dignity, and if this is ignored the value of human dignity and God
would be meaningless40.

Double Effect:

There
are more limitations present here. Those opposed to legalisation would argue
that we already have measures in places to allow some degree of assisted dying;
therefore the argument of compassion and dignity is of less importance. This is
shown through the principle of double effect whereby a practitioner is allowed
to end life with the intention to relieve pain and suffering41.
Intention is key here, if intention is to kill; this will essentially amount to
murder, as show in the Bland case42.
Later versions of the double effect principle
all emphasize the distinction between causing a morally grave harm as a side
effect of pursuing a good end and causing a morally grave harm as a means of
pursuing a good end, therefore still promoting the principal of beneficence and
keeping in with the goals of medicine43. 

Alternatively
as well as double effect, opponents would argue that compassion is already
shown through the existence of palliative care. This is known as holistic care
of patients with incurable, advanced progressive illness expected to end in
death, providing physical measures such as pain management and psychological,
social and spiritual support. It is argued that legalisation is unnecessary and
would essentially cause more killings, however that is assuming that the
process of double effect does not contain intent killings already when
withdrawing treatment. It can strongly be argued that the principle of double
effect can still be used for doctors to relieve pain with malicious intent to
kill.44
Legislation would allow the scrutiny of the double effect process45
by way of covert killings, simply ensuring consistency and safety for patients.

Acts and Omissions:

The
treatment of acts and omissions is relevant here as advocates of legalisation
argue that euthanasia and assisted suicide are not morally different from
practices already in place.  Healthcare
professionals are permitted to produce death through omission, they cannot take
active measures regardless of the good measures. The relevance of double effect
then comes into question as withholding or withdrawing treatment are both
considered omissions not actions. However if a feeding tube was removed from a
patient this would prima facie be
considered an act, as a physician is already assisting a patient’s death but is
in fact an omission46.
Therefore libertarians argue that a distinction between an act and omission is
baseless as long as there is consent of involved parties47.
Double effect can be seen as a loophole granted to practitioners to try and
distinguish a positive act and omission while realistically bringing about the
same result and essentially covering up already existing assisted dying48.

Argument 3: We can control it

Legislation:

Proponents
believe that keeping goals of medicine in mind, legislation could be controlled
and abuse somewhat prevented. Dworkin states that there are dangers in both
legalisation and common law practices, therefore a balance must be struck49.
Although it would be arguably easier to determine on a case by case basis with
flexibility the height of un-clarity within Scotland would pose great difficult
in the future. In order to legislate well looking at other jurisdictions would
seem plausible. As Russia allows children over 12 the autonomous decision of
when to die50,
there would be strict limitations put in place for age, as well as many other
factors to ensure safeguards and clarity.

However
there is a major limitation here. The truth may seem that there is no
controlling legislation, as has been seen from the Dutch statistics51
and there is no guarantee that positions would improve, take for example the
Netherlands where many physician-assisted suicides are not reported even after
legalisation52.

Conclusion

Overall
there are many advantages and disadvantages to the legalisation of Euthanasia
and Assisted Suicide. All factors no doubt have a relation to the way we view
value of life. Goodhall (1997) describes this decision making process of
overpowering treatment and neglecting rights as “walking a tight rope”53.
Taking all of the above into account, the lack of clarity permits a change. Legalisation
of euthanasia and assisted suicide would constitute a clear and precise
legislation by which the public will be knowledgeable on what is criminalising
in what circumstance. It is important to mention again that legalisation would
come with appropriate safeguards that’s were not considered before. With these
limitations, legalisation will actively aim to maximise autonomy and continue
following the goals of medicine with upholding a fairly stable doctor-patient
relationship.

1
Keown (2002) Euthanasia, Ethics and Public Policy; An argument against
legislation. Cambridge University Press p1

2 Kay Wheat, Text,Cases and Materials on Medical Law and
Ethics(4th edn, Routeledge 2011) 557

3 Ibid

4 P
Lewis, Assisted Dying and Legal Change(Oxford Scholarship Online 2007) 1-5

5 P
Lewis, Assisted Dying and Legal Change(Oxford Scholarship Online 2007) 1-5

6 Suicide
Act 1961 (s2)

7 Boyle
J.J Med Philos.” Who is entitled to double
effect?” 1991 Oct; 16(5):475-94;511-4.

8 R (Purdy) v DPP
2009 UKHL 45

9 Prosecution Policy'”Campaign
for Dying in Dignity” https://www.dignityindying.org.uk/assisted-dying/the-law/prosecution-policy/accessed 16 November 2017

10 Gordon Ross v HMA2016 CSIH 12

11 Prosecution Policy'”Campaign
for Dying in Dignity” https://www.dignityindying.org.uk/assisted-dying/the-law/assisted-suicide-scotland-bill-2013/accessed 16 November 2017

12 The
Hastings Center Report, Vol. 26, No. 6, In
Search of the Good Society: The Work of Daniel Callahan (Nov. – Dec.,
1996),pp. S1-S27

13 M
Stauch and others, Text, Cases and Materials on Medical Law and Ethics(4th
edn, Routledge 2012) 26

14 C
Seale,”Legalisation of Euthanasia of
Physician-Assisted Suicide: Survey of Doctors Attitudes (2009) 23(1)

15 Braithwaite M A. Taking the final step:changing the
law on euthanasia and physician assisted suicide. BMJ 2005331681–683.

16 Gillon(1992)

17 Tom L
Beauchamp and James F Childress, Principles of Biomedical Ethics(OUP 2009) 100.

18 Harris
1994 – include intention, understanding and freedom from external influence.

19 Fabio
Macioce”What can we do? A philosophical analysis of individual self-detrmination(2012)
16(1) Eldos 100-106

20
Montgomery v Lanarkshire Health Board(2015)
UKSC 11 para75

21 MP
Battin, Ending Life: Ethics and The Way
We Die(Oxford University Press 2005) 1-42

22 House
of Lords,”Assisted Dying for the Terminally Ill Bill Committee Publications”
para 41

23 (2005)
EWCA CIV 1003 CA

24 J
Coggon,”Ignoring the Moral and
Intellectual Shape of law after Bland” (2007) 27(1) Legal Studies 110-125

25
Keown(2007) Physician-assisted
suicide: Lord Joffe’s slippery bill. Med Law Rev 15: 126-135

26 S Smith”Fallacies
of the logical slippery slope in the debate on physician –assisted suicide and
euthanasia” (2005) Medical Law Review 224-243

27 Ibid255

28 The Hastings Center Report, Vol. 26, No.
6, In Search of the Good Society: The
Work of Daniel Callahan (Nov. – Dec., 1996),pp. S1-S27

29 Beauchamp(1994)

30 Benatar D.
A legal right to die: responding to slippery slope and abuse arguments. Current
Oncology. 2011;18(5):206-207.

31
Prosecution Policy'”Campaign
for Dying in Dignity” https://www.dignityindying.org.uk/assisted-dying/the-law/assisted-suicide-scotland-bill-2013/accessed 16 November 2017

32 R(on the application of Nicklinson and another)(Appellants) v Ministry
of Justice2013 EWCA Civ 961

33 (2001) UKHL 61

34 E Webster,”Interpretation of the
prohibition of torture: making sense of dignity talk” (2016) 17(3) Human rights
Review p373

35 Ibid

36 J Harris,”The Value of Life: An
Intorduction to Medical Ethics” (Routelegde)(1985) 83

37 Ibid

38
Rui Nunes and Guilhermina Rego(2016)
Euthanasia: A challenge to medical ethics, , Journal of Clinical Research &
Bioethics p2

39 J Finnis Natural Law and Natural Rights(Oxford
University Press) 2011

40 H Baranzke,”Sanctity of Life a Bioethical
Principal for a Right to Life?”(2012) 15(3) Ethical Theory and Moral Practice
296

41 1996 2
Cr App R 467

42 Airedale
NHS Trust v Bland1993 1 All ER 821

43 McIntyre, Alison,”Doctrine of Double
Effect”, The
Stanford Encyclopedia of Philosophy (Winter 2014 Edition),
Edward N. Zalta (ed.), URL =
.

44 House
of Lords,”Assisted Dying for the Terminally Ill Bill Committee Publications”
237

45 J Herring, Medical Law and Ethics(6th
Edn OUP 2016) 490 – 571

46 Ibid 576

47
Engelhardt (1996) The
foundations of bioethics(2nd edn)Oxford University Press, New York

48
Andrew McGhee(2014) Does withdrawing life-sustaining treatment cause death or
allow the patient to die?, Oxford University Press,p6

49 Holm, S.(2000). Mind,109(436),
893-896. Retrieved from http://www.jstor.org/stable/2660037

50Charlotte Mcdonald
, ‘Belguin extends euthanasia law to kids ‘(Time ,13 Feburary
2014)  accessed
9 December 2017

51 Saunders P. Euthanasia. Nucleus 2000;
11-23 (April)

52 Dunnett A, Euthanasia: the Heart of the
Matter, London, Hodder & Stoughton, 1999(ISBN 0 340 69486 6).

53P McCormack,”Quality of life and the right to die: an
ethical dilemma” J Adv Nurs. 1998 Jul;28(1):63-9.