Learning resources
Chapter 11 - The end of life
CASE STUDY
Facts
Alexa is an adult with motor neurone disease. She is being treated at the hospital, but with the disease now in its final stages she is unable to feed herself or perform most tasks. She has indicated to the treatment team that she wants to die, but is unable to end her own life. She is therefore begging the doctors at the hospital to inject her with a fatal dose of a drug that would allow her to die painlessly but, in her view, with dignity. She has further stated that, should the hospital refuse to do this, her husband will remove her from the hospital and take her to a clinic in Switzerland that will help her to die. The treatment team approach Marc, from Rowlett McGuiness LLP, and Simon the hospital ethicist to ask for their opinion.
Analysis
Marc notes that there are two issues to contend with in Alexa’s case. The first, her request to be allowed to die, is the subject of an easy answer in legal terms. As the courts have repeatedly made clear, most recently in the case of Nicklinson (p. 269), English law simply does not allow positive acts that cause death to be performed by doctors, as this would in some circumstances constitute murder. This is the case even though, as the House of Lords noted in Bland (p. 270), the courts accept that the moral distinction between withdrawing treatment and a positive act can be somewhat dubious. Nevertheless, the legal position is clear, and unless the principle of double effect can be invoked – and Marc notes that in this case it has not been suggested that it would apply – the injection would be unlawful. The situation regarding going to Switzerland is slightly less clear. Marc tells the treatment team that this would be nothing to do with the hospital, but that Alexa’s husband might be prosecuted for assisting her suicide. He said that while nobody has ever been prosecuted for accompanying a relative to a Swiss clinic, a consequence of the Purdy (p. 268) litigation has been that the DPP has now published guidance regarding when it might be appropriate to prosecute, and therefore that some more pressure might be put on the DPP to do so in the future. Nevertheless, Marc is of the opinion that a loving spouse is unlikely to fulfil the criteria in the DPP’s guidance that supports prosecution. Simon again outlines the need to enable the patient to give effect to her preferences in the most suitable fashion. If it is Alexa's wish to end her life as she is unable to live it in a way that she feels is meaningful, this is to be respected. However this (uncontroversial) part of the case is not problematic - the issue extends to either mandating and possibly compelling others to act on this. It would, in Simon's view, not be possible to distil from this some sort of duty for a doctor to perform the act of giving the injection or even making the injection available. This would certainly be an issue for the individual moral compass of each doctor who might be involved (fully independent of the doctor's legal compass which should tell her to certainly not give the injection). The legal provisons that prevent the giving of a lethal injection in these circumstances also serve to protect the medical professionals who might otherwise be put under pressure to consider assisting in these cases. However, Simon is clear that he would consider Alexa's husband's wish to accompany her to Switzerland to end her life there as an act of kindness that cannot easily be flawed and should be supported.
ONLINE RESOURCES
- J. Finnis, ‘Bland: Crossing the Rubicon’ (1993) 109 LQR 329 http://www.ncbi.nlm.nih.gov/pubmed/11652844
- M. Freeman, ‘Denying Death Its Dominion: Thoughts on the Diane Pretty Case’ (2003) 10(3) Medical Law Review 245 http://medlaw.oxfordjournals.org/content/10/3/245.full.pdf
- D. Gurnham, ‘Losing the Wood for the Trees: Burke and the Court of Appeal’ (2006) 14 Medical Law Review 253 http://medlaw.oxfordjournals.org/content/14/2/253.full
- R. Huxtable, Law, Ethics and Compromise at the End of Life: To Treat or Not to Treat? (London: Routledge, 2012) http://books.google.de/books?id=RUjJCrXOEIYC
- J. Keown, ‘The Case of Miss B: Suicide’s Slippery Slope?’ (2002) Journal of Medical Ethics 238 http://jme.bmj.com/content/28/4/238.full.pdf+html
- J. Keown, ‘Restoring Moral and Intellectual Shape to the Law after Bland’ (1997) 113 Law Quarterly Review 481 http://www.ncbi.nlm.nih.gov/pubmed/12962086
- S. Michalowski, ‘Relying on Common Law Defences to Legalise Assisted Dying: Problems and Possibilities’ (2013) 21(3) Medical Law Review 337 http://medlaw.oxfordjournals.org/content/21/3/337
- S. Ost, ‘The De-Medicalisation of Assisted Dying: Is a Less Medicalised Model the Way Forward?’ (2010) 18(4) Medical Law Review 497 http://medlaw.oxfordjournals.org/content/18/4/497.full.pdf+html
- S. W. Smith, End-of-Life Decisions in Medical Care: Principles and Policies for Regulating the Dying Process (Cambridge University Press, 2012) http://books.google.de/books?id=Yj12GLMI3mEC
- E. Garrard and S. Wilkinson, ‘Passive Euthanasia’ (2005) 31 Journal of Medical Ethics 64 http://jme.bmj.com/content/31/2/64.full.pdf+html
- T. Hope, J. Savulescu and J. Hendrick, Medical Ethics and Law: The Core Curriculum, 2nd edn (Edinburgh: Churchill Livingstone, 2008), chapter 12 http://books.google.de/books?id=DOPfK6LvGR0C
- J. Keown, Euthanasia, Ethics and Public Policy – An Argument Against Legalisation (Cambridge University Press, 2002) http://books.google.de/books?id=ce83gBnSpfYC
- H. LaFollette (ed.), Ethics in Practice (Malden: Blackwell, 2002), chapters 1–4 http://books.google.de/books?id=UjN9AgAAQBAJ
- B. Steinbock (ed.), The Oxford Handbook of Bioethics (Oxford University Press, 2007), chapters 12–16 http://books.google.de/books?id=hBtMPgAACAAJ
