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Ethical Issues - End of life decisions

Legal Considerations

The legal position on end of life issues is clear but the application of the legal principles to actual cases can cause difficulty. The legal principles can be seen to derive from some of the ethical principles discussed in the previous section.

  • It is illegal to actively bring about someone’s death, either with or without the person’s consent. This covers both physician assisted suicide and the situation of giving a lethal injection to an incompetent patient.
  • An omission to act that (intentionally) results in the patient’s death is permissible where it is not in the patient’s interests to continue treatment (Airedale NHS Trust v Bland [1993] 1 All ER 821).
  • Court approval should be sought in all cases where treatment is proposed to be withheld / withdrawn from a patient in Permanent Vegetative State (Airedale NHS Trust v Bland [1993] 1 All ER 821).
  • Withholding and withdrawing treatment are both considered omissions to act.
  • A competent patient can refuse treatment, including requesting that ongoing treatment is withdrawn, even if that results in the patient’s death (Re B Consent to treatment: Capacity, 2002). The clinician would not be assisting a suicide. Treatment given in the face of a refusal would amount to battery.
  • A competent patient cannot request that a positive act is taken to end his/her life (R (on the Application of Pretty) v DPP [2002] 1 All ER 1). This would amount to assisted suicide. No right of self-determination in relation to death is created by the Human Rights Act 1998.
  • Where a clinician owes a duty of care to provide treatment to a patient then failure to do so will be a culpable omission. However the duty to provide life sustaining treatment is not absolute. There are exceptions including when a patient refuses such treatment or when the patient is incompetent and it is not considered in the best interests of the patient to be kept alive, for example, patients in persistent vegetative state or when life involves extreme pain, discomfort or indignity (R (on the application of Burke) and the General Medical Council. [2005]EWCA. Civ 1003).
  • If, as a side effect of giving pain - relieving drugs, the life of a terminally ill patient is thereby shortened, this is lawful under the doctrine of double effect (see above) where the intention is to relieve pain.

Bland (Airedale NHS Trust v Bland [1993] 1 All ER 821)

Anthony Bland was 21 years old when overcrowding at the Hillsborough football stadium lead to him being badly crushed. He was left permanently unconscious, in persistent vegetative state. Three years later the hospital Trust applied to the court for a ruling whether it would be lawful to discontinue artificial hydration and nutrition, resulting inevitably in his death.

The House of Lords considered that:

  • Artificial nutrition and hydration is regarded as a form of medical treatment.
  • There is no distinction between an omission to treat a patient (withholding) and discontinuance of treatment once commenced (withdrawing).
  • In making the decision whether or not to provide medical treatment the question to be asked is whether it is in the best interests of the patient that his life should be prolonged.
  • Previously stated wishes of the patient should be taken into account in the assessment of best interest.

Pretty (Pretty v UK (Application 2346/02) [2002] 2 FLR 45)

Dianne Pretty suffered from motor neurone disease which left her paralysed. She wanted her husband to be able to assist her suicide without fear of prosecution (assisting a suicide is a crime under the Suicide Act 1961) so that she could choose the time of her death and die with dignity. She argued that Article 2 (right to life) of the European Convention on Human Rights protects the right to life and the right to choose the manner of death.

However the House of Lords and the European Court did not find that Article 2 created a right to die and indeed that the need to protect vulnerable citizens justified the prohibition of assisted suicide.

In the past ten years there has been ongoing debate on the issue of physician assisted suicide. The Assisted Dying (terminally ill) Bill Joffe Bill calling for legalisation of PAS was blocked by the House of Lords in the UK Parliament in 2006. In 2010 a similar Bill (the End of Life Assistance (Scotland) Bill)was submitted to the Scottish Parliament. Also in 2010 the Director of Prosecutions in England published a policy on prosecution of assisted suicide. The policy sets out public interest factors in favour of and against prosecution in such cases.