This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers.
Published: Fri, 02 Feb 2018
Medicine Law Ethics | Free Medical Law Essay
In his judgment in Airedale NHS v Bland, Lord Scarman warned that statute law in cases involving end of life decisions could lead to ‘inflexibility, rigidity and obsolescence
‘He has also expressed the view that (elsewhere) that certainty in the law is an advantage and sometimes a necessity. Discuss Lord Scarman’s dilemma in relation to end of life decisions.
The end of life
cases normally involved applications made to the Court for and on behalf of an
incompetent person or dying person that the patient should be allowed to die.
However there can be cases that the application is about the right of the
incompetent person to continue living. This means that Court will be involved
in making a decision, literally between life and death of the person subject to
the application. Kennedy and Grubb states that ‘unlike the situation of the
competent patient, the law is largely not concerned with the decision made by
the patient themselves’.
They also argue that since the decision may result in the death of the patient,
the law is more problematic and the courts are more hesitant.
This essay will
discuss about the dilemma in facing not only Lord Scarman but also the Court as
a whole in cases of end of life. Discussions will be based on the current laws
available in the United Kingdom. This includes case laws and the Human Rights
Act 1988. Issues of ethics will also be considered.
several issues that contribute to the dilemma. One is the fact that in relation
to matters of life and death the criminal law, especially the law of murder
will come to the fore and sets the agenda.
This brings in the discussion about the operation of the defence of necessity
in relation of cases in this category.
The House of
Lords in Airdale NHS Trust v. Bland
decided that it would be lawful for medical staff to withdraw and remove life
sustaining measures to allow the patient in question to die as he was suffering
from the persistent state of vegetation (PSV). In this case Tony Bland’s parent
made the application to the Court to allow medical staff to withdraw feeding
and other life sustaining measure so that he could die.
In the House of
Lords, Lord Goff stressed that the law draws a crucial distinction between
cases where doctors decide not to provide or to continue to provide for his patients
treatment or care that could help or prolong his life and those which he
decides for example by administering lethal drugs that could bring his
patient’s life to an end. He said the former might be lawful as either the
doctor gives effect to the patient’s wishes or in certain circumstances the
patient is so incapacitated from stating whether or not he gives his consent.
He also states that the later is not lawful.
In this case the
House of Lords introduced the test of ‘best interest’. It was held that it was
not in the best interest of Bland that the treatment could be continued. Lord
Mustill held that withdrawing the life support in this case was justified both
legally and ethically as the continued treatment of Bland ‘can no longer serve
to maintain the combination of manifold characteristics which we call a
The decision of
the House of Lords in the above case has brought several criticisms. The
critics based their argument on the issue of sanctity of life. It is argued
that the sanctity of human life principle is said to prohibit to either
intentionally kill a patient, or intentionally lets the patient to die, and to
base decision on the prolongation of life or shortening of human life on
consideration of its quality or kind.
In addition Singer argues that the Court still have to respect the full idea
that life is sacred although the principle is not an absolute one as a
principle is to be balanced against conflicting consideration.
is of the view that A person cannot consent to his own death. The rule is not
based upon utilitarian considerations even though these may sometimes buttress
it. It is theocratic survival in our predominantly secular law; and religious
(transcendental’) arguments are still its main support. The doctrine of
sanctity of life, which has its origin from Roman Catholics, insist that life
must always be protected and preserved and adherents to the sanctity of life
emphasise that the central injunction is to refrain from intentionally
On the other hand
it is argued that unintended bad outcomes may be permissible subject to certain
conditions namely the action itself must not be morally wrong, the intention
must be to produce the good effect, the good effect must not be brought about
by the bad effect and the good effect must outweigh bad effect.
dilemma regards the application of human rights, especially the right to life
as stated in the Human Rights Act 1988 and the European Convention for Human
Rights (ECHR). The points of human rights was raised and discussed in the case
of Preety v. DPP
and Preety v. the UK
about the right to self determination of one’s life. These two cases relate to the
same person, Dianne Preety who was in state of vegetation and wanted to end her
life. Her husband has applied to the Court for immunity from prosecution in the
event he helped his wife to die. The Divisional Court refused his application
for judicial review of the decision made by the Director of Public Prosecution
that he will not be granted immunity from prosecution. The applicant appealed
to the House of Lords. The applicant argued her case, among others, based on
Article 2 of the ECHR on the right to life.
The House of
Lords rejected this argument. The House of Lords decided that Article 2 is
about the sanctity of life and that it means that no human beings should be
deprive of life by means of human intervention. The House of Lords held that
the provision does not provide for the legalisation of assisted suicide. Lord
Bingham states that the decision of the House of Lords is consistent with the
international practice and the debate about whether assisted suicide should be
legalised or not should be left to democratic debate. The European Court of
Human Rights, in the second case, also rejected her argument that Article 2
includes the right to self determination to die. The Court held that Article 2
protected the right to life and could not be inferred as conferring
diametrically opposite right, namely the right to die.
In the case of
Glass v. United Kingdom
the European Court of Human of Human Rights found that there had been a
violation of Article 8 of the ECHR (respect for private and family life) where
doctors had overridden a family’s wishes in their care of disabled child. This
means that doctors and also the Court from now on must also pay attention to
the wishes of the family. In this case the doctor’s decision to use certain
injection to let him die was considered by the court as pursuing a legitimate
aim in seeking the interest of the patient and reiterated that the doctors had
not intended to hasten his death and thus violated Article 2.
The above cases
show that the Court would be likely to approve an application made for medical
reasons by or supported by the medical profession. Thus one should distinguish
between the situation in which a doctor is asked to assist the patient in
bringing about his death (aiding and abetting suicide) and where a doctor is
asked to kill the patient (mercy killing).
The other issue
is that the assisting of someone to die, other then the issue of murder as
discussed above, also involve the issue of the statutory offence that is
assisting suicide under s 2 of the Suicide Act 1961. However the case of a
medical doctor ending someone’s life is not as clear cut as one would expect.
The distinction between them is the distinction between perpetrators and
Kennedy and Grubb argues that if a doctor, to speed his dying patient’s
passing, injects poison with the patient’s consent, this will be murder; but if
the doctor places the poison by the patient’s side, and the patient take sit,
this will be suicide in the patient and the doctor’s guilt will be of the
abetment offence under the Suicide Act (not abetment in murder).
Section 2 (1) of
Suicide Act 1961 determines whether a doctor is guilty under an offence for
providing a patient with the means to bring about his own death. Woolf, J in
A-G v Able
held that said:
As a matter of
principle, it seems to me that, as long as there is the necessary intent to
assist those who are contemplating suicide to commit suicide if they decide to
do so, it does not matter that the supplier does not know the state of the mind
of the actual recipient. The requirement for the necessary intent explains why
in those cases where, in the ordinary course of business, a person is
responsible for distributing an article, appreciating that some individuals
might use it for committing suicide, he is not guilty of an offence. In the
ordinary way, such a distributor would have no intention to assist the act of
suicide. An intention to assist need not however, involve a desire that suicide
should be committed or attempted.
submitted that in her book had submitted that in establishing a person’s guilt
as an aider and abettor, it is necessary to show that the person was
intentionally assisting and encouraging the commission of the act in question
or that he or she was at least ready to assist if required. She argues that in many
case, there would be little difficulty in establishing that the doctor thereby
intended to assist the patient to commit suicide (even though the doctor may
have hoped that the patient would not do so) and that the patient was in fact
assisted or encouraged in taking or attempting to take his or her own life.
situations have lead to the call for reform of the law. However a House of
Lords’ Select Committee
has dismissively rejected all calls for reform. The committee argue We
identify no circumstances in which assisted suicide should be permitted, nor do
we see any reason to distinguish between the act of a doctor or of any other
person in this connection.
discussion has indeed shows that dilemma facing Lord Scarman as the law in this
situation is divided and uncertain. The legislations such as the Human Rights
Act and the Suicide Act clearly stated that life should be respected and
respected. On the other hand there is a need for case laws to define the
parameters in areas not covered by the statutes. This brings the conflict
between the ethical argument that life should be protected based on the
doctrine of sanctity of life. However this doctrine has not been religiously
followed by the Court when there medical profession or the family apply to the
Court and the Court finds that death should be allowed in the best interest of
the patient. Thus it is argued that the situation now, whether in relation to
statute or case law is less than clear cut, which may need to be rectified by
Parliament. This will then be subject to political debates.
- House of Lords’ Select Committee
Report of the Select Committee on Medical Ethics (HL, Paper 21, Session
- R Huxtable, Maternal Instinct v.
Medical Opinion, CFam, Nov 2004.
- Kennedy and Andrew Grubb, Medical
Law, London: Butterworth, 2000 (3rd Ed)
- J. Keown, Euthanasia, Ethics and
Public Policy, An Argument Against Legislation, Cambridge: CUP, (2002)
- H Kuhse The Sanctity of Life
Doctrine in Medicine, A Critique, Oxford: Clarendon (1987) Ch. 4
- Margaret Otlowski, Voluntary
Euthanasia and the Common Law (1997)
- P Sanger, Rethinking Life and Death,
- Glenville William, Textbook of
Criminal Law (2nd ed, 1983)
Cite This Essay
To export a reference to this article please select a referencing style below: