Someone recently bought our

students are currently browsing our notes.


End Of Life Issues Notes

Law Notes > Medical Law Notes

This is an extract of our End Of Life Issues document, which we sell as part of our Medical Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Medical Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


1. General


Finnis and Harris in Keown, J. (ed.) Euthanasia Examined (CUP 1995): Debate between the two authors. o Harris starts by saying that allowing euthanasia is about respect for persons and autonomy. o Finnis starts by making the philosophical case against euthanasia:
? Defines the central case of euthanasia as the adopting and carrying out of a proposal that, the life of a person be terminated on the ground that it would be better for him/her if that were done.
? Notes that the moral argument which condemns euthanasia does not condemn the use of drugs which cause death as a side effect; there is a legal and moral distinction based on the intention.

* Appeals to his idea of a direct harming of basic goods; there is a difference between choosing to harm one of them, and that harm being an unavoidable consequence of another course of action which one chooses to undertake.
? Intentionally terminating life by omission is just as much murder as deliberate intervention; by failing to address this in Bland the HL made a mistake.
? Human bodily life is the life of a person and has the dignity of a person. Every human being is equal precisely in having that human life which is also humanity and personhood, and thus that dignity and intrinsic value. Human body life is not merely instrumental for the person or spirit but is an intrinsic and basic good; it is the concrete reality of the human person; dualism will serve it no good. In refusing to violate that life one respects the person in the most fundamental and indispensible way.
? So should provide a person in PVS with food, water and cleaning to respect him; if a person has made a request to refuse treatment, then in respecting autonomy may reasonably accept that death is a side effect of doing so. But suicide requests are different for this is request not rationally confined to one's own particular identity and circumstances but is a direct harm to the good of humans. o Harris then seeks to deal with issues in three tenets of Finnis' theory:
? The moral importance of intention:

* Whilst agrees that because I get drunk tonight does not mean that I intend to have a hangover tomorrow, he submits that we should still be deemed responsible for that hangover. No sound theory of action can ignore those things which we deliberately do to ourselves.

* Moral responsibility should encompass what we intend and voluntarily bring about; not clear why it is unfair and unreasonable to hold someone to account for the latter.

* If free choice matters it matters because of the effects of choosing whether they are side effects or not. Choosing makes a difference to the person and to the world.
? What is a person:

* Problem with Finnis' account is that he wants to say that capacity to participate in goods is constitutive of personhood, but also wants to claim that a person in PVS is still a person when they clearly lack this capacity.

* A PVS patient may be a living human body but it is not the living body of a person.
? Killing and killing:

* Thinks that it is self-deception to regard the choice to refuse treatment as a self-regarding one only with no impact on the wellbeing of other people. We respect the value of lives by respecting autonomy; it is an affirmation of that value to respect the wishes of a person who has made a choice as to the appropriate time at which their life should end. o Finnis provides a critique of one of Harris' earlier accounts:
? Starts by noting inconsistency of Harris' thesis; he believes that may be personhood even prior to conception on the basis that can project back capacities of future persons onto the organism, ye t refuses to bring forward those capacities to persons who are in a state of PVS.
? If, as Harris asserts, being a person entails being capable of appreciating that point then personhood must come and go; what really matters is how strong that capacity must be; a point which he fails to address and highlights the fragility of his thesis.
? Harris adopts the notion of critical interests and thinks that they can survive capacity, although his thesis is more subjective than that of Dworkin's; but this cuts both ways as it is not clear why should be allowed to stand idly by and let someone misinterpret the interests with irreversible consequences. o Harris responds once more;

1 Thinks that Finnis misses the point; talks about claims of critical interests because he thinks that they essentially boil down to claims about autonomy, or are subsidiary to them. Denial of euthanasia is wrong not because it involves frustration of critical interests but because fails to respect autonomy.
? Says that many people, even with dementia still have capacity to value life itself; only 1-5% don't.
? The wrong of killing is distinct as it is located in the principle that it is wrong to take an autonomously valued life; thus involuntary euthanasia is always wrong.
? Thinks that despite all the rhetoric him & Finnis are not that far apart as what they both appreciate is that there is virtue in possession of the ability to perform some intellectual act and that the human individual is morally significant; what differ over is when it is plausible to attribute that capacity. Finnis then responds to criticisms by Harris:
? Harris responsibility idea has impact that in doing one thing always responsible for what could have done in the alternative; which can be taken to the extreme. The distinction between intention and side effects remains a morally significant one.
? Suspects that Harris may not be telling the truth when says thesis is limited to voluntary euthanasia.
? Exercise of autonomy should be consistent with and limited by enjoyment of others; exercises of autonomy which proceed on the basis of premises which are false and injurious in implications to other members of society can rightly be overridden by law.o


R. Dworkin, Life's Dominion (Harper Collins, 1993), chapter 7: Essentially thinks that there is no right answer. o There are dangers both in legalising and refusing to legalise euthanasia; the rival dangers must be balanced and neither should be ignored. The emphasis we put on dying with dignity shows how important it is that life ends appropriately, that death keeps faith with the way that we have lived. o We cannot understand what death means to people without looking back on life. We worry about the effect of character of the last stage of life as a reflection on the life as a whole. o Most of the different ideas about life and a good life we hold intuitively and do not examine except in moments of special crisis or drama. But they are always there and guide decisions which we feel are automatic. These values are critical in the sense that they concern what makes a life successful rather than unsuccessful. They are not opinions about how to make life pleasant day-to-day i.e. experiential interests. The enjoyment of the latter depends upon the inclination of the former and the person's critical interests will depend very much upon his personality. Critical interests are reflected in the notion of integrity i.e. commitment to one's conception of a good life. People's views about how to live will colour their convictions when they die- people want death to express those values which they saw as important to their own lives. Timing is also important here. Thus, there is no uniform collective decision which can serve everyone decently. o In the context of abortion Dworkin discusses the difference between human investment and natural investment to conceptualise the pro life/choice debate. Anyone who believes in the sanctity of life for its sake will be inclined against euthanasia, as it violates natural investment.


Huxtable, Euthanasia and the Law (CUP, 2008), esp ch 1 and 6: The solution to the euthanasia problem lies in identifying the appropriate ethical prism through which to view the various practices that might or will lead to the ending of life and ensuring that this viewpoint is uniformly adopted in law. There is no shortage of perspectives here- all of which have at some point been adopted in English law in some form. It is not clear which paves the best way forward. Constructing a compromise here is both possible and desirable. o Notes definitional problems around euthanasia; people seem to assume what they are talking about but often the same word is used to describe a number of different situations. Note that strictly speaking it translates to 'good death'- but this begs the question.
? Author says: intentional ending of life motivated by the belief that it will in some way be beneficial for them. o Suggests that maybe the intrinsic value of life could be challenged. It is this thinking which underpins distinctions such as act/omission. What about the value of self-determination? Does this impact upon the value of life (Dworkin)? Does life only have instrumental value? Will euthanasia lead to dehumanisation?
o English law currently occupies three grounds;
? Respect for autonomy;
? Intrinsic value of life;
? A judgement on the quality of life. o There are, as it seems, three answers, none of which offer a solution:
? Condoning the current law:

* Preserving the status quo means that various worthwhile insights on competing ethical perspectives can continue to exert influence. The problem is that the hypocrisy will remain.

* Uncertainty means that the law is not fulfilling its basic function. 2



o o o o o

However, to work through the ethical issues again only means that the conflict returns. The difficulty then becomes to select between rival accounts, none of which are flawless.
? Creativity at the end of life;

* It is clear that there needs to be a new way of thinking about these issues if we are to move forward from the current stalemate.

* Ultimately this is a little optimistic since no work looks likely to provide a complete or radically new answer. The arguments exhaust the moral lexicon already.
? Consensus and convergence at the end of life;

* Some say that the answer could lie in locating the issues upon which proponents and opponents of euthanasia can agree. It is suggested that this can be done because not all are wedded to an all-or-nothing viewpoint.

* Apparently people agree on the fact that human life has some value and we all strive towards a good death. Once again this is too optimistic. People do not settle this easily. Absolutists are the ones that tend to dominate this debate but the fact is we live in a plural society and it is good to have a mechanism which is capable of taking into account a range of views. A committee formally make this matter more certain as most of the issues are clear. We should then be creating mechanisms which allow people to understand their relative positions in relation to the law in this area. Areas which should be clarified are omissions, double effect and mercy killing. Thus, there should be a renewed focus in working out these issues, but with no radical changes as such being advocated. It is intended to be the start of discourse and process.


Keown and Jackson, Debating Euthanasia (Hart, 2012): Summary of arguments for/against euthanasia.


Seale, "End of Life Decisions in the UK" (2009) Palliative Medicine 198: Statistical results of medical questionnaires. Basically says that double effect cases have not gone up but helping people to die etc. is on the increase.

J. Raz, 'Death in Our Life': Any reform brings with it new opportunities for abuse. They should not be allowed to stop reform where reform is otherwise justified. Though one should do one's best to fight the abuses and application of pressure. The claim for recognition of a right to voluntary euthanasia that applies to lives of pain, dependence, or reduced capacities cannot rely on the notion of a life not worth living; it is false that such lives are not worth living. We are concerned with a right to euthanasia because the ability to choose how/when life will end is valuable. The capacity for rational agency is the basis of a duty to respect those who have it, a respect that extends, within certain bounds, to the exercise of that capacity, namely to the way people lead their lives. And that includes its exercise to determine when and how to end one's life. Having that option is valuable, and therefore it is protected by the right to euthanasia. The power to decide the time and manner of one's death, when wisely used, will contribute to the value of various episodes in one's life, the main positive effect I have in mind is of the full, guiltless acceptance of the power itself. It can transform one's perspective on one's life; reduce the aspects of it from which one is alienated, or those that inspire a sense of helplessness or terror. It is a change that makes one whole in generating a perspective, a way of conceiving oneself and one's life free from some of those negative aspects.

2. The definition of death


Chau, P-L. and Herring, J. 'The Meaning of Death' in Brooks-Gordan et al Death Rites and Rights. Hart, 2007: Start by noting all of the potential definitions of death (of which there are many). o The following summarise the differences in approach:
? Focus on physical or conscious aspects of life;
? Patient or carer perspectives;
? Death as a medical, philosophical or legal question;
? The relevance of practicality;
? Whether or not the definition requires irreversibility;
? Religious perspectives;
? The role of policy;
? Public opinion. o Suggests that to produce as single definition of death with medical intervention is impossible and perhaps undesirable given that there is appropriate justification for all of the approaches advocated. There is much truth in the claim that death occurs as a process at different times and in different ways which are experienced and understood differently by those party to it; can only identify milestones within that process.


F Miller and R Truog, 'Decapitation and the definition of death' (2010) Journal of Medical Ethics 632: 3




Some scholars have challenged neurological criteria for determining death and have advocated return to sole reliance on traditional circulatory and respiratory criteria. Critics of a return to relying solely on traditional circulatory and respiratory criteria for determining death have lodged what they regard as a decisive refutation: namely, that this position implies that a decapitated human being or other type of animal would be alive so long as it maintains circulatory and respiratory functioning. When unpacked logically, this 'decapitation gambit' consists of two closely related arguments, which can be stated formally as follows.
? Argument 1:

* Decapitation is an infallible sign and sufficient condition of death;

* It is possible for a decapitated mammal to maintain respiratory function for a short time after;

* It must follow that the latter cannot be an indicator of death;
? Argument 2:

* Brain death constitutes psychological decapitation;

* Decapitation is an infallible sign of death;

* Hence individuals diagnosed as brain dead are necessarily dead. Common to these arguments is the first premise. The problem is that this begs the question by assuming that decapitation is necessarily death and that brain death is psychological decapitation. It is not clear that a decapitated mammal is dead from the moment that it loses its head- is there a dead chicken on the move or does it die when it collapses? The latter seems more natural. Perhaps the most striking challenge to brain death is that a pregnant woman can gestate a viable foetus for a period of time after brain activity has stopped. A decapitated mammal in fact remains in an ambiguous situation. The clinical diagnosis of brain death does not coincide with the cessation of the functioning of the human body as a whole or even the entire cessation of brain functioning.

A Joffe 'Are recent defences of the brain death concept adequate?' (2010) Bioethics 47: o Ongoing integrated functioning of the organism, including growth, assimilation of nutrients, excretion of wastes, gestation of a fetus to viability, fighting of infections, fluid and electrolyte regulation, and other functions continued in these patients without a cardiac arrest. These cases show that during brain death, with irreversible loss of all functions of the entire brain, there is ongoing integration of the organism as a whole; the concept of death (loss of integration of the organism as a whole) has not been met. o Some suggest that cerebral function is an integral and vital part of human beings, making them members of the human moral community, the kind of being who warrants certain kinds of treatment. This may be true; but does not consider this an acceptable argument to clarify why BD may be death.

3. Refusal of Life-Saving Treatment


Re J (a minor)(wardship: medical treatment) [1990] 3 All ER 930: Issue as to whether court could order that a child who was a ward of the court should not be ventilated in the event that he suffered a further lung collapse. o Lord Donaldson:
? A child who is a ward of court should be treated in the same way as he who is not with the exception that the doctors will look to the court for consent and advice as opposed to the parents.
? Notes sanctity of life and doctrine that should not kill, but further appreciates that also do not have to strive officiously to keep one alive either; although presumption in favour of life.
? What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental.

* This involves a balancing exercise to ascertain what is in the best interests of the child.
? At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so.
? Refuse to make order at this point as not clear whether child will/will not require treatment. o Balcome & Taylor LJ: Agree noting that the interests of the ward are the prime and paramount consideration.


Re B (Adult: Refusal of Medical Treatment) [2002] 2 FCR 1: Woman who was paralysed after an accident was dependent on a ventilator. She indicated that she wished to have it removed although she knew it would result in her death. She was initially judged as having capacity but the hospital later changed its mind; she later expressed relief that had not been turned off after being prescribed anti-depressants but again changed her mind and sought declaration that the hospital had been treating her unlawfully. Butler Sloss: o Says that the question is not whether B should live or die but is as to whether she has capacity. o The interface between the two principles of autonomy and sanctity of life is of great concern to the treating clinicians in the present case. The right of the competent patient to request cessation of treatment must prevail over the natural desire of the medical and nursing profession to try to keep her alive. 4

Buy the full version of these notes or essay plans and more in our Medical Law Notes.

More Medical Law Samples