Human Rights Issues In End Of Life Issues Notes

Human Rights Issues in End of Life Issues

Where we’re at

• Art 2: engaged to protect the vulnerable, no right to death contained within (Haas and Pretty)

• Art 8(1) engage for those who wish to die (Purdy); but not positive rights (Haas)

• Art 8(2) engaged to protect the vulnerable, so can interfere with Art 8(2) (Purdy; Haas)

• Art 14 – not engaged/justifiable (Pretty)

  • Herring: more emphasis on rights of vulnerable than positive right to die. Human rights hasn’t really liberalised the law in this area.

Art 8

• ECtHR in Pretty

  • Essence of the Convention is respect for human dignity and freedom without negating the principle of sanctity of life

  • 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 decrepitude which conflict with strongly held ideas of self and personal identity.

• Purdy

  • Baroness Hale:

    • Clearly the prime object must be to protect people who are vulnerable to all sorts of pressures,

      • Both subtle and not so subtle, to consider their own lives a worthless burden to others

      • Herring: not just people lacking autonomy, but people being pressured as well – vulnerable = very broad category

    • Object must also at same time but protect exercise of genuinely autonomous choice.

      • The factors which tell for and against such a genuine exercise of autonomy from pressure will be important

  • Lord Brown

    • Suppose a loved one in desperate and deteriorating crimunstances, regards the future with dread and has made a full informed and voluintary decision to die

      • Needing another’s compassionate help and support to accomplish that end

      • Is assistance in those circumstances necessartily to be deprectiated?

    • Seems to me that it would be possible to regard the conduct of the aider as altruistic rather than criminal

      • Conduct to be understood out of respect for an intending suicide’s rights under Art 8,

        • Than discouraged so as to safeguard the right to life of others under Art 2.

Seale C’s decisions

• 63% of deaths involved an end of life decision by a medical practitioner

  • Might include switching off ventilator, pain relief double effect – decision made to do or not to do something

• Of these, 32.8% involved a medical professional intervening to alleviate pain or undesirable symptoms

  • With potentially life shortening effect

• And 30.3% was where live saving treatment was withdrawn or withheld

• 0.16% involved euthanasia with the request of the patient

• 0.33% euthanasia w/o the patient’s consent

• Herring: role played by double effect = very significant

A more recent survey

• Religious views of doctors:

  • Doctors which such views much less likely to make decisions leading to death

Murder

• Adams

  • Devlin J

    • If the acts done are intended to kill and do, in fact kill

      • It dopes 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

• Airedale NHS Trust v Bland

  • Lord Goff

    • It is not lawful for a doctor to administer a drug to his patient to bring about his death

      • Even if that course is prompted by the humanitarian desire to end his suffering, however great that suffering may be

• R v Inglis

  • Mum knew what she was doing in killing disabled son

    • No loss of control or diminished responsibility

    • Intent to kill

  • BUT only imposed 5 years minimum sentence

Special rules for doctors?

• R v Arthur

  • Farquharson J (to the jury)

    • Think long and hard before deciding that doctors of the eminence we have heard

      • Have evolved standards which amount to committing crime

• R v Moor

  • Hooper J

    • You may consider it a great irony that a doctor who goes out of his way to care for a patient ends up facing the charge he does

• R v Adams

  • Devlin J

    • If the first purpose of medicine, the restoration of health can no longer be achieved

      • Doctors can do other things which may have incidental effect of shortening life

• Assisted Suicide s.2(1A) (amended by Coroners and Justice Act 2009)

  • (1A) the person referred to in subsection 1(a) need not be a class of persons known to D

  • S.2(2) If on a trial of murder or manslaughter it is proved that the accused aided abetted and counselled or procured the suicide of the person in question

    • The jury may [but need not....] find him guilty.

  • S.2(4) no proceedings shall be instituted for an offence under this section except by or with the consent of the DPP

• DPP following the Purdy decision

  • Herring: 2 particular themes that run through the guidance

    • Was autonomous choice by person wishing to commit suicide

      • E.g. must be over 18

      • E.g. whether mental capacity affected

      • E.g. whether settled decision

    • And a theme of compassion – motivated by wish to help rather than personal gain

      • E.g. did they have a terminal illness

        • Herring: not a requirement, just one of the factors to take into account

      • E.g. motivated by compassion

      • E.g. was victim able to commit suicide themselves?

Act and Omissions

• Lord Mustil in Bland

  • It can be asked why, if the doctor, by discontinuing treatment is entitled in consequence to let his patient die

    • It should not be lawful to put him out of his misery straight away, in a more humane manner by a lethal...

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