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DEATH, DYING, END OF LIFE ISSUES
- I quite agree with Herring's position, bear in mind that the average person seeking death isn't Nicklinson or Pretty, they are vulnerable individuals suffering from mental health conditions, often lacking capacity!
- CURRENT LEGAL POSTION
o Acts that lead to death
Never allowed (Bland)
Except maybe in necessity cases? (Re A Conjoined Twins)
o Omissions that lead to death
Allowed with competent P's consent, or if in an incompetent
P's best interests
See Bland (withdrawal of ANH)
o "Lead to" means a but-for condition -> but does not imply causation
The same way that marriage is a but-for condition of divorce,
but no one says that marriage causes divorce
Herring, Chapter 9: Dying and Death
Introduction 1 Attitudes towards dying have changed: previously something that happened and had to be accepted, but with tech advancements it has become possible to exercise greater control
Common to seek a 'dignified death'
o But some complain that this is a false expectation - death is normally ugly and painful and we should accept this as a fact of life
(1) Coggon suggests that arguments over euthanasia are 'a debate that's being done to death'. Yet, it's hard to see the debate progressing - the same arguments are being repeated with little sense of a growing consensus
(2) important to remember that there are other crucial issues around issue of dying other than assisted dying (e.g. those in poverty, abysmal living conditions, abandoned by families,
socially excluded, isolated, neglected by communities)
Herring: suggests that instead of the immense amount of time and political energy spent on euthanasia, maybe we should focus on improving the lives of older people,
improving the quality of palliative care, and combatting ageist attitudes
1. What is death?
1.2 Legal definition of death
Bland, Lords Browne-Wilkinson, Goff and Keith: accepted that brain stem death was the definition of death for the purposes of medicine and law
Held: P, although suffering from persistent vegetative state (PVS), was not brain stem dead and thus was still alive
Confirmed in Re A (A Child), although Hayden J went on to say that it did not follow that if the family took a different view from the legal definition, that it would be appropriate to conduct a post mortem on the body
"The facts of this case are a reminder once again that in a multi-cultural society there has to be recognition that people, particularly those with strong religious beliefs,
may differ with medical professionals as to when death occurs. In the Christian, Muslim and Jewish faiths the concept of the 'breath of life' has ancient and important resonance . It is hardly difficult to understand why the still breathing body is regarded as alive, even though
'breath' may be entirely delivered by machine. An insistence on a legally precise definition of death to trigger the involvement of the Coroner, in such challenging circumstances is, in my judgment, so obviously wrong as to be redundant of any contrary argument."
o Safest statement = at present, legal definition of death coincides with medical one
1.3 Alternative definitions of death
(1) brain stem death
Claimed that person whose brain stem is dead has ceased to live in anything but a mechanical way
Requirements (set out in Department of Health's A Code for Practice for the Diagnosis of Brain Stem Death)
(i) must be concluded that coma is not the result of reversible causes, such as drug overdose
must be demonstrated that several components of the brain stem have all been permanently destroyed. This includes respiratory centre
(iii) must be proved that patient is unable to breathe spontaneously
Proponents rely on 2 arguments in favour
(i) once the brain ceases to operate, then the body has lost its integrated whole
(ii) once the brain stem has gone, all that gives life value has been lost
Elevates the brain to being the essential organ of the person
Glannon: "We are not just our brains but subjects whose ordered and disordered states of mind are the products of continuous interaction between and among the brain, body, and the social and natural world. The brain is not the sole cause of the mind but a relational organ that shapes and is shaped by the mind in mediating interaction between the embodied subject and the world"
To declare the body dead when only part of it (the brain) is not working reveals too narrow an understanding of the body
Joffe: many other functions (growth,
execration, gestation) continue
Veatch: imagines future where brain transplants will be possible
To be classified as dead even when one's body is warm and breathing creates too wide a gap between the legal meaning of 'death' and its understanding by lay people
(2) end of breathing
= moment at which a patient's heart stopped pumping and breathing ceased
But medical advancements have made this definition problematic: stopping of heart does not lead to an end of brain activity 3 Proponents (e.g. Danish Council of Ethics)
Take the view that the definition of death is not a technical question, but must be decided in terms of how the community as a whole understands death
Argued that the person in the street would view the stopping of the beating heart as the criterion for death, because the heart is widely seen as a symbol of life
Thus, even if not logically or philosophically justifiable, beating heart is intuitively felt to be the essential
(3) end of organism
= if body is seen as a 'working organism' with various functions, then it's possible to define death as when that organism ceases to achieve those functions
E.g. ventilation, circulation, nutrition, elimination of waste products
Only once all these functions are no longer being performed should the body be said to have died
Treats body like a piece of machinery, most people regard their bodies as more than an organism that performs these functions
Overlooks what most people regard as most important about their bodies: feelings, thoughts,
(4) death of every cell
= at the state when the body has begun to putrefy (very extreme view)
(5) death as a process
Sometimes there's a clear instant of death (e.g. if blown up in an explosion), but where death is 'natural', there's no easy cut-off point that marks the line between life/
Problem: law, relatives, and professionals require a clear point in time when someone has died
Response: P could be treated as dead for different purposes at different times
E.g. there could be one point in time in the process at which P is declared dead for the purpose of removal of organs for transplant, but another at which he/ she is dead for the purposes of burial or cremation
= for those of a religious persuasion, death is often defined as the moment at which the soul leaves the body and moves on to the afterlife
4 Rejected by those who deny the existence of a soul
Even if accepted, the moment of desoulment is not apparent to humans and therefore cannot readily provide a basis of a legal or medical test
(7) consciousness or social interaction
To some, the definition of death should depend on what we understand it is to be human (some define this as a consciousness of one's self or others/ ability to interact with other people) without which, P has lost an essential part of being human
Would lead to a far wider classification of death than what is used at present (e.g. those suffering from PVS would be regarded as dead)
Also consider those with severe mental conditions as dead
(8) choose your own
Bagheri: because there are so many definitions of death and they all depend on one's theological, spiritual, or political beliefs, it is best to let each person decide what he or she would like the definition of death to be
Would still need some 'fallback' position for cases in which someone had failed to indicate what they wanted their definition of death to be
Would also, presumably, be some definitions of death that would be unacceptable, and so not permitted
Zeiler suggests that there should be a range of alternative acceptable definitions from among which people can select their preferred option
(9) avoiding the issue of death
Could instead ask: at what point is it appropriate to authorize burials of bodies? When can organs be removed from a body for transplant to another? When can a person whose body is being artificially ventilated have the machine switched off?
1.4 Choosing between the definitions
Lamb: 'It is as wrong to treat the living as dead as it is to treat the dead as alive.'
Important to mark point of death neither too early nor too late
Are they equally serious? Delaying grieving process/
wasting resources on treating a dead person is probably less serious than burying a person who is alive
Difference 1: emphasising life as being about conscious awareness VS understanding the body as a living organism
5 But most people think both POVs are valid
One solution is to accept that we die twice: once when we lose consciousness, once when our biological organism stops functioning
Difference 2: do we appreciate death from the POV of the dying P, or from that of their carers?
Brain stem death will be the point at which the dying person will lose all appreciation of life, but cessation of breathing will be the point at which the person will appear to have died to onlookers
But note that the stopping of breathing is the most common cause for the brain stem to cease functioning
Who should define death? Doctors? Or should court take into account moral and philosophical arguments (on top of medical)?
Shah, Truong and Miller: argue that law should accept that it needs to use a 'fictional' definition of death (brain stem death) for policy reasons, rather than seek to pretend that it is using a 'real' definition
Definition should also accord with general public's understanding of death
2. The law and the end of life
Summary of law governing end of life (Lord Sumption in Nicklinson)
o (1) In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life.
o (2) A person who is legally and mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes ...
A patient (or prospective patient) may express his wishes on these points by an advance decision (or 'living will').
o (3) A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options
(such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give and receive information is guaranteed by Art 10
o (4) Medical treatment intended to palliate pain and discomfort is not unlawful only because it has the incidental consequence, however foreseeable , of shortening the patient's life ...
o (5) Whatever may be said about the clarity or lack of it in the
Director [of Public Prosecution]'s published policy, the fact is that prosecutions for encouraging or as- sisting suicide are rare ...
To be guilty of murder, jury must be persuaded beyond reasonable doubt that:
(i) D caused the death of the V;
(ii) D intended to cause death or grievous bodily harm;
(iii) D cannot successfully raise a defence.
o Element (i): D caused the death of V
Acts of doctor causing death
Must show that D's act was a substantial and operating cause of death (but need not be the sole cause of death)
If administration of the drug shorted V's life by only a few seconds, this may not constitute a substantial cause of death
Devlin J: "If the acts done are intended to kill and do, in fact kill, it does not matter if a life is cut short by weeks or months, it is just as much murder as if it were cut short by years."
o Courts are reluctant to find that 'normal'
medical treatment broke the chain of causation
E.g. if D was stabbed, then courts are likely to be convinced that stabbing did not cause V's death only where the medical treatment was "palpably wrong" (R v Cheshire)
Omissions of doctor causing death
Generally, D is not criminally responsible for an omission. EXCEPT where D owes a duty to V, D
fails to act in accordance with that duty, and had
D not failed to do so, V would not have died when he/she did
R (Jenkins) v HM Coroner for Portsmouth: no crime committed if help was not offered to someone who was dying, when he had made it clear that he did not want medical help
But different if V lacked capacity when refusing assistance 7
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