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The year 2002 has seen two landmark decisions in end of life cases. The first, in March, concerned ‘Ms B’, a 43-year-old paralysed woman who had been kept alive on a ventilator for 11 months and now wished to be allowed to die. When the hospital trust looking after her refused to switch the ventilator off, arguing she could not make a truly informed decision until she had tried special rehabilitation to improve her condition, Ms B took the matter to court. In a hearing convened at her bedside, it was held that not only was she competent to make her own decisions but that, moreover, the hospital trust had been in breach of the Human Rights Act for failing to accede to her wishes1. Ms B's case is important in that it takes legal precedent a step further. In 1993 the House of Lords held that, in the case of Tony Bland, a victim of the Hillsborough disaster who had been in a persistent vegetative state (PVS) for four years, further medical treatment would be futile and that life support measures might lawfully be discontinued2. Bland has since been applied in several PVS and borderline PVS cases. However, the courts have consistently emphasized that, in making a declaration that life-sustaining treatment may be discontinued, it is not imposing death but is, rather, not taking steps to prolong life. The unique feature of Ms B's case is that it was she herself, not relatives or a hospital trust, who invoked the measure.
In late April a second important ruling was delivered— that in the case of Diane Pretty3. Mrs Pretty, a paralysed and terminally ill mother with motor neuron disease, had campaigned long and hard for her husband to be allowed to help her to commit suicide, free from subsequent prosecution for murder. Having sought and failed to get the backing of the English courts, Mrs Pretty took her case to the European Court of Human Rights (ECHR), arguing that respect for human dignity and freedom under the European Convention should extend to the right to self-determination as to how and when to die and that, more specifically, the Court should respect her private and family life under Article 8 of the Convention. In giving judgment, the ECHR recognized that ‘in an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude’. However, fearing scope for abuse if the ban on assisted suicides were relaxed, the Court invoked an exception to Article 8 to dismiss Mrs Pretty's application. Like the House of Lords before it, as a matter of public policy it would not countenance sanctioning the killing of one person at the hands of another, however moving or distressing the circumstances.
The upshot of Diane Pretty's case is that mercy killing remains illegal and that to take active steps to help end another's life renders the helper liable to prosecution—as several doctors caring for terminally ill patients have found to their cost. In 1999 David Moor, a retired GP, was charged with the murder of George Liddell, a man aged 85 with terminal bowel cancer4. When Dr Moor told the court that his motive for administering a fatal dose of diamorphine to Mr Liddell had been to relieve pain, and not to kill, he was invoking a defence that has no statutory basis. His acquittal owed everything to a sensible jury, drawn from a broadly sympathetic public (although one wonders whether, after the Shipman case, juries would be so trusting of doctors' motives today). Under the present legal position, a doctor's intention must be to alleviate suffering, not to end life, even where death is patently in the patient's best interests. To admit otherwise leaves a doctor open to the charge of murder. When, for example, in 1991, Nigel Cox, a rheumatologist, administered potassium chloride, a lethal substance with no analgesic or therapeutic effect, to a terminally ill woman of 70, he was tried and convicted of attempted murder5. Like Moor, he argued that he had been motivated solely by a desire to end the patient's suffering. However, his choice of drug meant that death had been a primary rather than an incidental consequence of his actions. Both Cox and Moor were victims of their own integrity. Cox wrote what he had done in the patient's notes, while Moor made no secret of his role in bringing about pain-free and comfortable deaths.
Intervention in the terminal stages of illness is an everyday matter. The principle of double effect, where the provision of pain relief has the additional effect of hastening death, is thought to be employed in the UK between two and three thousand times a year. While only 3% of doctors admitted to having broken the law by acceding to a request to end a life, almost half of doctors who responded to one survey supported a change in the law to allow them to comply with the wishes of terminally ill patients6—a change that would help reconcile their conflicting obligations towards patients as caregivers and towards the law as civilians.
The 1993 Special Report of the House of Lords Select Committee on Medical Ethics firmly opposed any such change. This was reaffirmed in the 1997 green paper Who Decides?. The Select Committee's report endorsed the continued practice of double effect but concluded that euthanasia must remain illegal and that the elderly should not, however obliquely, be encouraged to seek death7; instead they should be assured care and support in life until continued treatment is clearly inappropriate, at which point treatment can be withdrawn and death from natural causes allowed to follow. This is the position reached by most western countries. Why?
Some people fear that physician-assisted suicide would be the start of a slippery slope that could result in wholesale slaughter of the old and sick. Not all families are unselfish and loving. Moreover, as Lord Bingham remarked in Diane Pretty's case, an elderly person might opt for a premature end to life ‘not from a desire to die or a willingness to stop living but from a desire to stop being a burden on others’. For some, of course, there is a religious objection—that only God decides when death should occur (though it is sometimes hard to see where God stops and medicine takes over). A more telling argument, perhaps, concerns the role of palliative care: a move towards euthanasia would undermine development of this specialty, which came into being precisely to improve care of the dying.
In the UK, patients have the right to refuse treatment, and suicide was decriminalized in 1961. The sticking-point, in the Diane Pretty case, was that suicide would have been aided by a third party. Although a sizeable majority of the public in one opinion poll favoured legalization of assisted suicide, another survey indicated that only one in three doctors would have anything to do with it. For those who see this as a matter of human rights, there is encouragement from across the North Sea. On 1 April the Netherlands became the first country to legalize mercy killings and assisted suicide (followed by Belgium the following month). The new Dutch Voluntary Euthanasia Bill makes formally legal a practice that has had growing approval for 30 years. It is almost identical to guidelines issued in 1993 that, if followed, granted a doctor immunity from prosecution. It requires that:
If these conditions are met the patient is allowed to end his or her life. This is the point from which campaigners in the UK might reasonably start.